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The Burden of Proof in National Treatment Disputes and the Environment

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  • Horn, Henrik

Abstract

This paper examines the role of the burden of proof (BoP) in National Treatment (NT) disputes under trade agreements. In the situation under study, imports may cause environmental damage, in which case less favorable treatment of imported products may be globally desirable from an international efficiency point of view. But adjudicators do not with full certainty know the motives for policies that are allegedly pursued to protect the environment, but that also give commercial advantages to domestic products. The paper points to a tension between NT and environmental concerns, in that NT will primarily target countries exposed to environmental shocks. But contrary to what might be expected, this tension is not likely to arise when the environmental threats are very severe. The paper also shows why a shift of the BoP in environmental disputes toward complaining (exporting) countries will not necessarily reduce the environmental damage in importing countries.

Suggested Citation

  • Horn, Henrik, 2009. "The Burden of Proof in National Treatment Disputes and the Environment," CEPR Discussion Papers 7316, C.E.P.R. Discussion Papers.
  • Handle: RePEc:cpr:ceprdp:7316
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    References listed on IDEAS

    as
    1. Kamal Saggi & Nese Sara, 2008. "National Treatment At The Wto: The Roles Of Product And Country Heterogeneity," International Economic Review, Department of Economics, University of Pennsylvania and Osaka University Institute of Social and Economic Research Association, vol. 49(4), pages 1365-1394, November.
    2. Horn, Henrik & Mavroidis, Petros C., 2008. "The Permissible Reach of National Environmental Policies," Working Paper Series 739, Research Institute of Industrial Economics, revised 20 Jun 2008.
    3. Hyun Song Shin, 1998. "Adversarial and Inquisitorial Procedures in Arbitration," RAND Journal of Economics, The RAND Corporation, vol. 29(2), pages 378-405, Summer.
    4. Ferrara, Ida & Missios, Paul & Murat Yildiz, Halis, 2009. "Trading rules and the environment: Does equal treatment lead to a cleaner world?," Journal of Environmental Economics and Management, Elsevier, vol. 58(2), pages 206-225, September.
    5. Henrik Horn, 2006. "National Treatment in the GATT," American Economic Review, American Economic Association, vol. 96(1), pages 394-404, March.
    6. Sumeet Gulati & Devesh Roy, 2008. "National Treatment and the optimal regulation of environmental externalities," Canadian Journal of Economics, Canadian Economics Association, vol. 41(4), pages 1445-1471, November.
    7. Chris William Sanchirico, 2008. "A Primary-Activity Approach to Proof Burdens," The Journal of Legal Studies, University of Chicago Press, vol. 37(1), pages 273-313, January.
    8. Giovanni Maggi & Robert W. Staiger, 2008. "On the Role and Design of Dispute Settlement Procedures in International Trade Agreements," NBER Working Papers 14067, National Bureau of Economic Research, Inc.
    9. Robert W. Staiger & Kyle Bagwell, 1999. "An Economic Theory of GATT," American Economic Review, American Economic Association, vol. 89(1), pages 215-248, March.
    10. Horn, Henrik & Mavroidis, Petros C., 2009. "Burden of Proof in Environmental Disputes in the WTO: Legal Aspects," Working Paper Series 793, Research Institute of Industrial Economics.
    11. Baksi, S. & Ray Chaudhuri, A., 2008. "Transboundary Pollution, Trade Liberalization, and Environmental Taxes," Discussion Paper 2008-78, Tilburg University, Center for Economic Research.
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    Cited by:

    1. Grossman, Gene M. & Horn, Henrik & Mavroidis, Petros C., 2012. "The Legal and Economic Principles of World Trade Law: National Treatment," Working Paper Series 917, Research Institute of Industrial Economics.

    More about this item

    Keywords

    burden of proof; environment; National Treatment; trade agreements; WTO;

    JEL classification:

    • F13 - International Economics - - Trade - - - Trade Policy; International Trade Organizations
    • Q56 - Agricultural and Natural Resource Economics; Environmental and Ecological Economics - - Environmental Economics - - - Environment and Development; Environment and Trade; Sustainability; Environmental Accounts and Accounting; Environmental Equity; Population Growth

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