This is from the recent AB 21.5 report in Tuna:
7.32 ... Under Article 2.1, ... a complainant must show that, under the technical regulation at issue, the treatment accorded to imported products is less favourable than that accorded to like domestic products or like products originating in any other country. Provided that it has shown detrimental impact, a complainant may, therefore, make a prima facie showing of less favourable treatment by, for example, adducing evidence and arguments showing that the measure is not even-handed, which would suggest that the measure is inconsistent with Article 2.1. If, however, the respondent shows that the detrimental impact on imported products stems exclusively from a legitimate regulatory distinction, it follows that the challenged measure is not inconsistent with Article 2.1.
I've very puzzled by this.
Let's just assume that detrimental impact has been shown. What happens next? According to the AB, the complainant "may" show that less favorable treatment exists by proving the measure is "not even-handed." In addition, if the respondent can show that any detrimental impact "stems exclusively from a legitimate regulatory distinction," there is no violation.
So who has the burden here? Does the complainant have the burden to show the measure is not even-handed? If so, why did the AB say "may"?
Putting that aside, how does the "even-handed" test relate to the "stems exclusively from a legitimate regulatory distinction" test? Are these two completely separate standards? After detrimental impact has been shown, who has the burden to show what exactly?
