Burden of Proof. Proof of Secondary Issues. Contributory Negligence of Deceased in Wrongful Death Action

1930 ◽  
Vol 44 (2) ◽  
pp. 292
Author(s):  
McKendrick Ewan

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.


1955 ◽  
Vol 43 (1) ◽  
pp. 119
Author(s):  
Robert S. Daggett

Author(s):  
Sabahi Borzu

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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