Burden of Proof. Whether a Matter of Procedure or Substantive Law. Statutory Shift of the Burden as to Contributory Negligence

1915 ◽  
Vol 29 (1) ◽  
pp. 98
Keyword(s):  
Burden Of Proof ◽  
Contributory Negligence ◽  
Substantive Law

ESTABLISHMENT OF THE FACTUAL CAUSATION IN TORT

2021 ◽  
Vol 21 (5) ◽  
pp. 86-132
Author(s):  
M.I. LUKHMANOV
Keyword(s):  
Burden Of Proof ◽  
Statistical Evidence ◽  
Corrective Justice ◽  
Moral Basis ◽  
Standards Of Proof ◽  
Substantive Law

The article examines the moral basis and significance of causation from the standpoint of corrective justice; the division of factual and legal causation, as well as the theory of conditio sine qua non and NESS test, are critically analyzed; the problems of the former are discussed, while the preference of the latter is justified, with special attention to the torts committed by omission; the relation of factual causation as a matter of substantive law to the procedural form of its reflection is established through the discussion of issues of allocation of burden of proof and standards of proof, as well as admissibility of scientific and statistical evidence of factual causation.

Ciężar dowodu – zagadnienie z pogranicza prawa cywilnego materialnego i procesowego

2017 ◽  
Vol 70 (0) ◽  
pp. 29-37
Author(s):  
Izabela Andrych-Brzezińska
Keyword(s):  
Burden Of Proof ◽  
Formal Aspect ◽  
Substantive Law ◽  
Civil Trial

The burden of proof has two interrelated aspects: material and formal aspect. Material aspect of the burden of proof allows to decide every civil trial – even that where the evaluation of the evidence left some doubts in the judge’s mind. The formal aspect of the burden of proof indicates the direction of the trial, especially when it comes to taking evidence. It is the party, not the judge, who bears the burden of producing evidence. It is also the party who has to persuade the trier of the fact of the truth of the alleged facts. But it is the institution of the burden of proof that allows the judge to decide every case. For that reason regulations governing the burden of proof are present in all proceedings. What is not commonly agreed is the answer to the question: does the issue of burden of proof belong to substantive law or is it a matter of litigation. The presented article tries to closer the arguments of both sides.

Questions Q7-9a) What is the rule established in Art. 7(2) CISG? b) What are the difficulties associated with this rule? Cf. again C7-3. c) Can you find provisions similar to Art. 7(2) CISG in other international uniform sets of rules? Q 7-10 Considering the case law above (C 7-5 to C7-8), which general principles have been developed over the years? Q 7-11 a) What is the general principle set out in the Compromex decision in C7-5? b) From which provision is it derived? Q 7-12 a) What does the Bundesgericht in C7-6 state? b) Can you list the provisions that guided the court? Q 7-13 a) What was the question to be decided in C7-7? b) What was the holding of the court? c) Which provision might constitute the basis for such an assumption? d) Which distinction is usually made, and what does the court refer to with respect to the set-off of claims? Q 7-14 a) Can you think of any questions which cannot be settled in accordance with the general principles underlying the Convention but must rather be answered under the applicable domestic law? b) Which provision of the CISG will help you answer this question? Q 7-15 Which difficulties do we encounter when deciding whether we can develop a general principle from a particular provision of the CISG? Q 7-16 The issue of burden of proof was highly disputed at the Drafting Conference. The drafters feared an overlap with procedural matters, for which UNCI-TRAL had no mandate, and were deterred from settling the question of burden of proof in a general way. a) Does the Bundesgericht in C7-8 consider the burden of proof to be a procedural question, or a substantive law issue? b) How does the Bundesgericht (C 7-8) come to the conclusion that the CISG contains rules on the burden of proof? c) Can you find a provision in the CISG which, through its wording, makes

2007 ◽  
pp. 117-119
Keyword(s):  
General Principle ◽  
Burden Of Proof ◽  
Case Law ◽  
Substantive Law ◽  
Domestic Law

Ch.7 Non-performance, s.4: Damages, Art.7.4.7

2015 ◽  
Author(s):  
McKendrick Ewan
Keyword(s):  
Burden Of Proof ◽  
Contributory Negligence ◽  
English Law

This commentary analyses Article 7.4.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning harm due in part to the aggrieved party. Art 7.4.7 deals with the case in which the harm suffered by the aggrieved party stems in part from its own act or omission or to an event for which it bears the risk. In such a case, the amount of damages shall be reduced to the extent that these factors have contributed to the harm, having regard to the conduct of each of the parties. The principle enshrined in Art 7.4.7 is equivalent in English law to the principle of contributory negligence. The burden of proof is upon the non-performing party to establish that the harm was due in part to an act or omission of the aggrieved party or to another event as to which the aggrieved party bears the risk.

7 Limitations on Compensation

2011 ◽  
Author(s):  
Sabahi Borzu
Keyword(s):  
Financial Crisis ◽  
International Law ◽  
Burden Of Proof ◽  
The State ◽  
Double Counting ◽  
Customary International Law ◽  
Investment Treaty ◽  
Contributory Negligence ◽  
Investment Treaties ◽  
Investment Treaty Arbitration

This chapter discusses various principles that may limit the amount of compensation that an investor may recover. Causation is examined, focusing particularly on legal causation. The effects of the investor's actions on compensation through contributory negligence and the obligation to mitigate losses are also discussed. The chapter touches upon a State's counterclaims, particularly the issue of jurisdiction over counterclaims in investment treaty arbitration. The state of necessity defence, in both customary international law and under investment treaties, is examined with its effect on the amount of compensation due; with particular attention to the cases arising from the Argentine financial crisis in 2000–02. Other included principles which affect compensation are the issues of burden of proof and the prohibition of double counting. Finally, the chapter examines the application of equity in awarding compensation.

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