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.

10 Damages in International Arbitration

2016 ◽  
Author(s):  
Salomon Claudia T
Keyword(s):  
New York ◽  
The State ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Business Opportunity ◽  
Reasonable Degree ◽  
Depth Analysis ◽  
Degree Of Certainty ◽  
Standards Of Proof ◽  
Substantive Law

This chapter addresses the implications of the substantive law of the State of New York for the proof and calculation of damages. In international commercial arbitration, the category of damages, as well as the nature of proof required, is determined by the agreement of the parties. Absent such an agreement, tribunals will be guided by the substantive law of the arbitration. And generally, for damages to be recoverable, an aggrieved party must prove that the opposing party’s conduct directly and proximately caused the claimed damages. Although an in-depth analysis of theories and standards of proof for establishing causation is beyond the scope of this chapter, the requirement that a party prove, with a reasonable degree of certainty, damages proximately caused by a respondent’s actions explains New York law’s general skepticism about anticipated lost profits for a prospective business opportunity as a class of damages.

scholarly journals Limitations Clauses, Evidence, and the Burden of Proof in the European Court of Human Rights

2020 ◽  
Vol 15 (1-2) ◽  
pp. 192-206
Author(s):  
T. Jeremy Gunn
Keyword(s):  
Human Rights ◽  
Ad Hoc ◽  
Burden Of Proof ◽  
Freedom Of Religion ◽  
The Core ◽  
European Court ◽  
Rules Of Evidence ◽  
Standards Of Proof

Abstract Courts and tribunals involved in evaluating whether states have applied limitations clauses appropriately should pay increased attention to the core underlying issues of the parties’ respective burdens of proof, the standards of proof, and identifying which parties are required to prove which assertions. The European Court of Human Rights has not articulated with sufficient clarity the rules of evidence that apply to its proceedings, thereby permitting ad hoc and inconsistent evaluations of issues pertaining to the freedom of religion or belief. The Court should take seriously its obligation to clarify its standards and thereafter apply them.

Science/ Law Interactions and the Problem of Causation

2000 ◽  
Vol 11 (2) ◽  
pp. 207-216
Author(s):  
R.J. Harrison
Keyword(s):  
Strict Liability ◽  
Burden Of Proof ◽  
Corrective Justice ◽  
Scientific Uncertainty ◽  
Causal Connection ◽  
Biological Mechanism ◽  
Nuclear Fuels ◽  
Toxic Agent ◽  
Potential Problems ◽  
Degree Of Certainty

Traditionally tort (personal injury) cases have been regarded as isolated disputes concerned with individual harm, where the law's role was simply to allocate losses between tortfeasor and victim according to principles of corrective justice. With the advent of the toxic tort – a cause of action which arises when a plaintiff has developed a disease following exposure to a toxic agent (chemical or in the form of energy) has come a fundamental challenge to the traditional basis of causation where under negligence or strict liability the toxic tort plaintiff (like all tort plaintiffs) must establish a causal connection between the tortious conduct and the loss for which recovery is sought. When applying the ‘balance of probability’ test to a toxic tort, two potential problems arise. First the test does not work where there are multiple or even alternative possible causes of a plaintiff's injury. Here the burden of proof demands a degree of certainty in excess of fifty per cent in an area where estimates, probabilities and scientific uncertainty are the norm. Second, difficulties occur in trying to establish the origins of the plaintiff's disease, in particular, the biological mechanism responsible for initiating or mobilising the illness. Underlying the basis of all toxic torts, distinct areas of scientific knowledge, grounded in an epistemological and procedural framework provide the evidence upon which the expert offers his opinion. This article examines the problems that such evidence poses for the legal system and reflects on some of the jurisprudential issues that arose in Reay and Hope v British Nuclear Fuels.

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.

Principles of Evidence in Public International Law as Applied by Investor-State Tribunals: Burden and Standards of Proof

2019 ◽  
Vol 2 (2) ◽  
pp. 1-52
Author(s):  
Kabir Duggal ◽  
Wendy W. Cai
Keyword(s):  
International Law ◽  
Burden Of Proof ◽  
Valuable Insight ◽  
International Court Of Justice ◽  
Public International Law ◽  
Investment Arbitration ◽  
Court Of Justice ◽  
International Court ◽  
Standards Of Proof ◽  
Insight Into

AbstractPrinciples of Evidence in Public International Law as Applied by Investor-State Tribunals explores the fundamental principles of evidence and how these principles relating to burden of proof and standards of proof are derived.By tracing the applications of major principles recognized by the International Court of Justice and applied by investor-state tribunal jurisprudence, the authors offer valuable insight into the interpretation, understanding, and nuances of indispensable principles of evidence, an area that has been ignored in both investor-state arbitration and public international law more generally. Each principle is analyzed through historical and modern lenses to provide clarity and cohesion in understanding how fundamental principles of evidence will affect evidentiary dispositions of parties in investment arbitration and public international law cases.

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

Knowledge and persons

2018 ◽  
Author(s):  
Sarah Moss
Keyword(s):  
Moral Philosophy ◽  
Statistical Evidence ◽  
Reasonable Doubt ◽  
Ordinary Objects ◽  
Legal Standards ◽  
Administrative Assistant ◽  
Probabilistic Knowledge ◽  
Standards Of Proof ◽  
Legal Proof

This chapter applies probabilistic knowledge to problems in legal and moral philosophy. It is argued that legal standards of proof require factfinders to know probabilistic contents. For instance, proof by a preponderance of the evidence requires knowledge that the defendant is at least .5 likely to be liable, whereas proof of guilt beyond a reasonable doubt requires knowledge of a significantly stronger content. The fact that legal proof requires knowledge explains why merely statistical evidence is insufficient to license a legal verdict of liability or guilt. In addition to explaining the limited value of statistical evidence, probabilistic knowledge is useful in spelling out norms violated by acts of racial and other profiling. It can be epistemically wrong to infer from statistics that a woman is probably an administrative assistant, for instance, even when inferring facts about ordinary objects from similar statistics is perfectly okay.

scholarly journals Staying Faithful to the Standards of Proof

2018 ◽  
Author(s):  
Kevin M. Clermont
Keyword(s):  
Probability Theory ◽  
Burden Of Proof ◽  
Acceptable Result ◽  
Standard Of Proof ◽  
Degree Of Belief ◽  
Standards Of Proof ◽  
The Law ◽  
Legal Proof

Academics have never quite understood the standards of proof or, indeed, much about the theory of proof. Their formulations beget probabilistic musings, which beget all sorts of paradoxes, which in turn beget radical reconceptions and proposals for reform. The theoretical radicals argue that the law needs some basic reconception such as recognizing the aim of legal proof as not at all a search for truth but rather the production of an acceptable result, or that the law needs some shattering reform such as greatly heightening the standard of proof on each part of the case to ensure a more-likely-than-not overall result.This Article refutes all those baroque re-readings. It shows that the standards of proof, properly understood on the law’s own terms without a probabilistic overlay, work just fine. The law tells fact finders to compare their degree of belief in the alleged fact to their degree of contradictory disbelief. Following that instruction resolves mathematically the paradoxes that traditional probability theory creates for itself. Most surprising, the burden of proof, by which the proponent must prove all the elements and the opponent need disprove only one, does not produce an asymmetry between the parties. The law’s standards of proof need no drastic reconception or reform — because the law knew what it was doing all along.

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