A Model for the Burden of Persuasion in Argumentation

This work provides a formal model for the burden of persuasion in legal proceedings. The model shows how the allocation of the burden of persuasion may induce a satisfactory outcome in contexts in which the assessment of conflicting arguments would, without such an allocation, remain undecided. The proposed model is based on an argumentation setting in which arguments may be accepted or rejected according to whether the burden of persuasion falls on the conclusion of such arguments or on its complements. Our model merges two ideas that have emerged in the debate on the burden of persuasion: the idea that allocation of the burden of persuasion makes it possible to resolve conflicts between arguments, and the idea that its satisfaction depends on the dialectical statuses of the arguments involved. Our model also addresses cases in which the burden of persuasion is inverted, and cases in which burdens of persuasion are inferred through arguments.

Defences and the Burden of Proof in International Law

The burden of proving a defence is said to be on the party invoking it. As trite as this proposition may sound, in international law it hides a far more complex litigation reality. Distinctions must be made both in terms of types of claims in defence, and types of burdens this may impose on the respondent. This chapter distinguishes six different claims in defence: (i) objections to jurisdiction, (ii) objections to admissibility, (iii) exemptions, (iv) absence of breach, (v) exceptions, and (vi) defences under secondary rules. For each of these six claims in defence, five types of burdens are identified: (i) burden of raising a claim in defence, (ii) burden of production of evidence, (iii) burden of persuasion, (iv) quantum of proof, and (v) standard of review. Although for some claims in defence some types of burden are on the defendant, this is certainly not the case for all.

Can there be a burden of the best explanation?

In this article I address a foundational question in evidence law: how should judges and jurors reason with evidence? According to a widely accepted approach, legal fact-finding should involve a determination of whether each cause of action is proven to a specific probability. In most civil cases, the party carrying the burden of persuasion is said to need to persuade triers that the facts she needs to prevail are “more likely than not” true. The problem is that this approach is both a descriptively and normatively inadequate account of reasoning with evidence in law. It does not offer a plausible picture of how people in general, and legal fact-finders in particular, reason with evidence. And it turns out that if we try to do what the approach tells us, we end up with absurd results. Faced with these difficulties, a group of evidence scholars has proposed an alternative. According to them, legal fact-finding should involve a determination of which hypothesis best explains the admitted evidence, rather than whether each cause of action is proven to a specific probability. My main contributions in this article are twofold. First, I elaborate on the many descriptive, normative and explanatory considerations in support of an explanation-based approach to standards. Second, I offer novel replies to pressing objections against that same approach.

Part II Burden and Standard of Proof in International Investment Arbitration, 3 Shifting the Burden of Evidence

This chapter explains the process of ‘shifting the burden of evidence’, otherwise known as the ‘shifting principle’. This is the proposition which occurs when the party who bears the initial burden puts forward evidence to support its initial claim. Here, the burden of evidence (or alternatively also termed as the ‘burden of production’, ‘burden of persuasion’, or ‘burden of proceeding’) shifts to the other party to rebut the evidence put forward. Shifting the burden of evidence is to be read in conjunction with the burden of proof principle discussed in the previous chapter. This is because it is only when the initial burden of the party making an allegation is met that the burden is shifted to the other party.