Burdens of Proof and Choice of Law

Burden of proof in tax proceedings from a constitutional perspective

The urgency of the article stated in the article is due to the need to revise traditional scientific views on certain peculiarities of criminal procedural evidence in connection with the expansion of the adversarial nature of domestic criminal proceedings. The purpose of the paper is to determine the essence of the category ‘burden of proof’ and justify the necessity of introducing it into scientific and law enforcement circulation. The main approach to the study of this problem was to carry out a critical analysis of the norms of the current criminal procedural legislation that regulates the requirements regarding the burden of proof and the views expressed on their proper understanding and application. The publication expresses the view that the distinction between such legal categories as ‘burden of proof’ and ‘burden of proof’ is proposed, the definition of the concept of ‘burden of proof’ is proposed and the rules for burden sharing between parties of criminal proceedings are analyzed. The material of the article represents both theoretical and practical value. They can be used for further research into the essence of the concept of ‘burden of proof’, as well as for proper understanding and enforcement of criminal procedural law enforcement activities.

This first part of the chapter discusses the concept of burden of proof, covering the legal or persuasive burden of proof; the evidential burden; the effect of presumptions on the burden of proof; the legal burden of proof in civil cases; the evidential burden in civil cases; the burden of proof in criminal cases; defence burdens of proof before Lambert; defence burdens of proof after Lambert; and the burden of proof of secondary facts. The second part of the chapter discusses the standard of proof, covering standard of proof required of prosecution in criminal cases; standard of proof required of defence; standard of proof of secondary facts; the standard of proof in civil cases; and the standard of proof in matrimonial and family cases.

PurposeThe World Trade Organization (WTO) is one of the best dispute settlement mechanisms in the world. Under WTO rules, aggrieved parties must establish a “prima facie” case before the panel can call on the offending party to respond to the claims. The objective of the present study is to critically evaluate the application of the concept of burden of proof under WTO dispute settlement mechanism.Design/methodology/approachThe paper examines the rule of “prima facie” in WTO jurisprudence. To do so, the first part will focus on the development of dispute settlement within WTO. The second part is divided into several subsections that will focus on the burden of proof concept, burden of proof in common law, burden of proof in civil law and the prima facie standard.FindingsThe DSU does not explicitly regulate how to allocate the burden of proof, but panels and the AB needed to address that issue early in their history. Despite this, all aggrieved parties to establish a prima facie case before the case can become the subject of a panel hearing. There is a need to adopt a burden of proof standard that assesses evidence on the basis of preponderance of the available evidence rather than on the basis of a party’s failure to adduce evidence to back up or dispute a claim.Originality/valueThe paper is an attempt to address an important issue on the presentation of evidence and proof in international litigation, i.e. WTO.

In jurisdictions that subscribe to adversarial mode of litigation, burdens and standards of proof have significant roles in the adjudication and determination of criminal cases. The operation of the principle of presumption of innocence in such jurisdictions determines issues of who bears what burden and the extent thereof. The Ethiopian criminal procedure system predominantly exhibits adversarial features, and there is the need for the comprehension and enforcement of the respective burdens and standards of proof borne by litigants. The constraints in clarity are more pronounced in those criminal law provisions that embrace some form of presumptions such as provisions on corruption offences. This note highlights how issues of burden and standard of proof are allocated as between prosecuting authorities and accused persons. Apart from explaining the nexus between the principle of presumption of innocence,burdens of proof and standards of proof, it indicates the implications of theoperation of the principle of presumption of innocence upon the allocation of evidential and persuasive burdens of proof as between the state and theaccused. It further outlines the effects of the various forms of presumptions upon the different kinds of burdens of proof.Key words: Burden of proof, standard of proof, easing of burden of proof, criminal cases, presumption of innocence

This chapter examines issues of burden and standard of proof that arise in competition proceedings. It first provides an overview of relevant terminology such as burden, legal burden, evidential burden, and standard of proof before discussing the burden of proof, presumption, and standard of proof with regard to civil claims and criminal cases. It also considers the burden of proof, standard of proof, and presumption of innocence in appeals made to the Competition Appeal Tribunal (CAT) against infringement decisions. In particular, it explains the criminal nature of the appeal proceedings and shows that the legal burden of proving the infringement remains on the Competition and Markets Authority (CMA). The CAT decisions in Napp Pharmaceutical Holdings v DGFT, Claymore Dairies v OFT, and Flynn Pharma Ltd & Pfizer CMA with respect to standard of proof and presumption of innocence are cited.

This chapter situates orthodox common law analysis of burdens of proof and presumptions within the broader conceptual framework of ‘presumption of innocence’ (PoI), an expanded normative framing directly rooted in constitutional and human rights principles. One vital conceptual refinement is that PoI is not a ‘presumption’ in the common lawyer’s traditional evidentiary sense. At common law, Woolmington established the burden and standard of proof as fundamental constitutional principles. ECHR Article 6(2) introduced a more capacious (albeit still ‘procedural’) conception of PoI into English criminal jurisprudence, via HRA 1998, s.2. Burdens of proof and evidentiary presumptions can both be conceptualized as techniques for allocating the risk of non-persuasion between litigants. Any party failing to discharge an onus of proof loses on that issue (or, in relation to ultimate probanda, loses the case as a whole). The political morality of PoI (incorporating Woolmington) is institutionalized through a steeply asymmetric proof structure, requiring the prosecution to establish guilt to a very high standard (traditionally, ‘beyond reasonable doubt’, BRD). English law’s ongoing commitment to PoI is explored through doctrinal developments in jury directions on the standard of proof (‘being sure’ has replaced BRD) and the three recognized ‘exceptions to Woolmington’, where the accused is required to bear the burden of proof. Hunt conceded the possibility of implied burdens on the defence, but cautioned against inferring them. Such ‘reverse onus clauses’ must now be tested for compatibility with HRA 1998, precipitating a large, complex, and contentious jurisprudence (including five visits to the House of Lords). Whether express or implied, a statutory reverse onus clause might be ‘read down’, pursuant to HRA 1998 s.3, to a merely evidential burden of production if it would otherwise be incompatible with ECHR Article 6(2). Leading authorities, including Sheldrake, prescribe detailed criteria for assessing compatibility.

Initially it would seem that applying the precautionary principle to reverse the burden of proof in international adjudication would be inconsistent with the need for certainty within the articulation and application of the rules on burden of proof, and would run counter to the presumption that states are in compliance with their international legal obligations. However, in the type of dispute under consideration in this book, justification for reversing the burden of proof can be found at both the legal and theoretical levels. As a matter of law, the inherent powers of international courts and tribunals may include the capacity to reverse the burden of proof to accommodate the need for precaution in order to ensure the sound administration of justice. As a matter of theory, reversal of the burden of proof is consistent with the principles of fairness underlying the rules on burden of proof, and with an extended rationalist conception of adjudication. Within the extended rationalist tradition rectitude of decision (through the ‘correct application of valid law to true facts’) is an important social value, but it is not an absolute requirement for rationalist adjudication. Other values may sometimes be overriding. In this instance, these other values would include both procedural fairness and the proper protection of human health and the environment. Rules relating to the burden and standard of proof and the application of presumptions in any event do not fit well into the rationalist category of rules that are purely procedural.

War — Effects of — Reprisals — Reprisals Order-in-Council — Conditional Contraband — Ultimate Destination — Burden of Proof — Knowledge of Owners of Vessel — Absence of Navicert — Liability of Vessel to Condemnation.Contraband — Conditional Contraband — Coasting Voyage — Ultimate Destination of Cargo — Consignment to Order — Burden of Proof — Absence of Navicert — Knowledge of Owners of Vessel — Liability of Vessel to Condemnation — Reprisals Order-in-Council.549Prize Law — Neutral Ship on Coasting Voyage — Carriage of Conditional Contraband — Ultimate Destination — Consignment to Order — Burden of Proof — Absence of Navicert — Knowledge of Owners of Vessel — Liability of Vessel to Condemnation — Reprisals Order-in-council.

War — Effects of treaties of peace — Postliminium — Funds appropriated by belligerent occupant — Recapture — Claim of friendly national — Burden of proof — The law of the United States of America.Belligerent occupation — Respect for private property — Taking of funds by belligerent Occupant — Recapture — Claim of friendly national — Burden of proof — The law of the United States of America.War — Enemy character — Of goods — Currency captured from enemy — Claim of friendly national thereto — Burden of proof — The law of the United States of America.

The article presents an in-depth analysis of the correlation between standards and the burden of proof in Russian civil procedure. The author examines the principal considerations and challenges associated with the application and interpretation of these concepts in contemporary judicial practice and doctrine. A particular focus is placed upon the variability of judicial application of standards of proof, as well as aspects of the distribution of the burden of proof between the parties to the proceedings. Theoretical approaches to the correlation of burden and standards of proof are considered. The article addresses the necessity of developing transparent criteria and procedures for establishing and implementing standards of proof. This will eliminate existing inconsistencies and contribute to the formation of a more predictable judicial practice. The article presents a series of recommendations pertaining to the enhancement of normative regulation and the practical implementation of standards, as well as the burden of proof in civil proceedings.

This chapter discusses the concept of the burden of proof in investor-state arbitration. The basic rule regarding the burden of proof in international law is that the party who makes an assertion must prove it. The rule has its origins in the traditions of Roman, common, and civil law countries, and is not new or unique to investment arbitration. In fact, this principle has been widely recognized by several international dispute settlement panels, as well as other international agencies. Not every set of arbitration rules explicitly includes this rule, however, although there is near unanimity by tribunals and commentators in its application.

Tribunals have applied various rules regarding the burden of proof. The most important of these are the rule that the burden of proof is with the claimant and the rule that the burden of proof lies with the party asserting a fact. It is questionable whether these traditional mechanisms are well suited for the determination of a tribunal’s jurisdiction. A tribunal must determine its jurisdiction ex officio or proprio motu. The evidence and arguments submitted by the parties do not necessarily determine the tribunal’s decision on its jurisdiction. Moreover, many jurisdictional requirements are objective and not subject to the disposition of the parties. In recent years, the International Court of Justice and some investment tribunals have adopted a method whereby the court or tribunal looks at the overall evidence for and against jurisdiction and decides on the preponderance of facts and legal arguments. An important aspect of jurisdiction is the parties’ consent to arbitration. A few tribunals have adopted presumptions for or against the existence of consent. Most tribunals reject these presumptions thereby implicitly rejecting a higher or lower standard of proof.

Extradition — For Political Offences — Burden of Proof — The — Law of ArgentinaExtradition — Conditions of — Discrepancy Between Law of Requested Country and Relevant Treaties in the Matter of Penalties — Extradition for Political Offences — Burden of Proof — The Law of Argentina

This chapter presents an overview of the theoretical law and economics literature on the burden of proof within tort law. I begin by clarifying core legal definitions within this topic, demonstrating that the burden of proof actually refers to at least five doctrinal concepts that substantially overlap but are not completely interchangeable. I then provide a conceptual roadmap for analyzing the major extant contributions to this topic within theoretical law and economics, emphasizing three key dimensions that organize them: (a) where they fall in the positive-normative spectrum; (b) what type of underlying modeling framework they employ (ranging from decision theoretic to game theoretic to mechanism design); and (c) whether they focus on litigation activity or primary activities (or both). In the aggregate, the resulting theoretical landscape is a complex one, yielding a number of interesting insights. Yet it still suffers from having no single unified theory. I conclude by offering a number of recommendations about where applied law and economics scholars interested this topic could direct their research efforts.