Access to evidence in private international law

Francesco Parisi, Daniel Pi, Alice Guerra

Research output: Contribution to journalArticlepeer-review

1 Scopus citations

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.

Original languageEnglish (US)
Pages (from-to)77-96
Number of pages20
JournalTheoretical Inquiries in Law
Volume23
Issue number1
DOIs
StatePublished - Feb 1 2022

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© 2022 by Theoretical Inquiries in Law.

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