Access to Evidence in Private International Law
Parisi, F., Pi, D. & Guerra, A. (2022). Access to evidence in private international law. Theoretical Inquiries in Law, 23(1), 77-96. https://doi.org/10.1515/til-2022-0004
20 Pages Posted: 28 Nov 2021 Last revised: 1 Nov 2022
Date Written: November 16, 2021
This Article analyzes the interaction between the burden of proof and evidentiary discovery rules. Both sets of rules can affect incentives for prospective injurers to invest in evidence technology (i.e., ex ante investments that increase the quantity and quality of evidence in case an accident occurs). This interaction becomes acutely important in the private international law setting, where jurisdictions are split on the question whether the burden of proof should be treated as a substantive or procedural matter. When a tort occurs in Europe, but the case is litigated in American courts, treating the burden of proof as a procedural matter preserves the complementarity of incentives created by the burden of proof and evidentiary rules. Conversely, treating the burden of proof as a substantive matter creates a mismatch in incentives created by the burden of proof and evidentiary rules.
Keywords: evidence, discovery, presumptions, liability, torts, private international law, conflict of laws, burden of proof
JEL Classification: K13, K33, K41
Suggested Citation: Suggested Citation