Commercial Dispute Resolution Week 3 | Quizlet

What is evidence all about?

Facts

Facts, what do you know?

- The verdict is based on those facts that have been established during the procedure

There are two types of facts:

1. Facts of common knowledge (judicial knowledge; the grass is green)

2. Facts pleaded by parties (Principle 22)

Not disputed -> established facts

Disputed -> evidence is brought concerning "facts in issues"

Burden of pleading principle number

21A

Application of burden of pleading

1. Which legal consequences does a party invoke?

2. Which facts does the law require to trigger that consequence?

Principle 21.1 - what does it basically say

Each party must prove all the material facts that are the basis of that party's case. This 'goes with the burden of pleading' (21A) and it is usually determined by applicable substantive rules who has this burden.

The two elements of the burden of proof

Burden of production

&

Burden of persuasion

Burden of production

Whose turn is it to bring evidence (not really talk about)

Burden of persuasion

- The need to persuade the court that you have evidence

Important because of: Risk of non persuasion→ cases of "non liquet"*

- If you do not prove your facts when you have the burden of persuasion you will lose the case (even though the adversary also did not prove anything)

How do you know whether facts stated by parties need to be proven or not?

You look at the substantive elements of the law.

Types of defences

Negating defence (Contesting)

Affirmative defence (Accepting)

Negating defence (Contesting)

- NO burden of proof

e.g. this was NOT a tort, this was NOT attributed

Affirmative defence (Accepting)

- The defendant affirms the facts BUT something else is going on that frees of liability such as force majeure or statute of limitations

- There may be indications in statutory or contractual provisions if there is the word "Unless..."

→ in this case, the defendant has the burden of proof for the elements after the "Unless..."o

- You can have multiple defences

Standard of proof

- You have met the burden of proof when the court is reasonably convinced (Principle 21.2)

Means of proof - How to prove a fact?

Documents

Witnesses

Oaths

Inspection

Expert reports (P.22)

Indirect proof

Principle 16.6

Free evaluation:

All proof is allowed as long as they are relevant and then the judge decides what is more important. There is no rule that says documents are more important.

No unjustified significance

The judge has to explain WHY they consider something more important

'Relevant evidence' definition

the evidence will be able to affect the judge in regards to an issue

Principle 16.1

- Court and parties have access to Relevant and non privileged evidence

a) Evidence needs to relate to Facts at issue (Principle 16A)

b) No fishing expeditions

Fact pleading (vs notice pleading)

- You assert specific facts and offer specific evidence when pleading VS American discovery (cost, speed)

*You don't just say i have a case against X and i want to look at all of their documents because there might be something of interest there

Principle 16.3 and Principle 16D

Voluntary interview → Principles allow it. Lawyers can ask potential witnesses "what would you say, what would your testimony be?" - this is debatable in various jurisdictions.

Principle 16.4 and Principle 16F + written statements

For the testimony, proceed as customary in the forum

Written statements? Should they be allowed? Because usually these would be written by lawyers so is it fair? The principles allow it

Principle 16B

Party's testimony → principles allow to testify for your own case

Principle 22.4

Court experts and party experts:

Experts on foreign law may be appointed (Principle 22B)

Hot-tubbing → bring all the experts along and we will have a discussion all together and we will all discuss together

Admissibility: Balance of Relevance / right to be heard

→ anything that is relevant must be heard. But this must be balanced with the right to be heard

Admissibility: Free evaluation of the evidence

Evidence is admissible but the value depends on the evaluation of the court

Frustration of evidence

When you have the burden of proof but there may be NO way for you to bring evidence (access of hospital documents)

--> This should be balanced with good faith

What happens if a party refuses to allow access to relevant evidence?

PRINCIPLE 21.3 AND 21.C Adverse inferences. This may mean various things, including shifting burden of proof

Evidence in arbitration

- Depends on the arbitration agreement*

- Basic ideas are the same

- Usually there is a tendency to be flexible about 'rules' for evidence (moses says that)

- If issues with power over (third) parties → then adverse inferences

*(e.g. parties might apply rules from Principles, rely on institutional rules, IBA rules, UNCITRAL Model Rules)