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

Minnesota Legal Studies Research Paper No. 21-22

20 Pages Posted: 28 Nov 2021 Last revised: 1 Nov 2022

See all articles by Francesco Parisi

Francesco Parisi

University of Minnesota - Law School; University of Bologna

Daniel Pi

University of Maine - School of Law

Alice Guerra

University of Bologna - Department of Economics

Date Written: November 16, 2021

Abstract

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

Parisi, Francesco and Pi, Daniel and Guerra, Alice, Access to Evidence in Private International Law (November 16, 2021). 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, Minnesota Legal Studies Research Paper No. 21-22, Available at SSRN: https://ssrn.com/abstract=3964387 or http://dx.doi.org/10.2139/ssrn.3964387

Francesco Parisi

University of Minnesota - Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

University of Bologna ( email )

Piazza Scaravilli 1
40126 Bologna, fc 47100
Italy

Daniel Pi (Contact Author)

University of Maine - School of Law ( email )

246 Deering Avenue
Portland, ME 04102
United States

Alice Guerra

University of Bologna - Department of Economics ( email )

Bologna
Italy

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