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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

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The Burden of Proof in Comparative and International Human Rights Law

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ISBN13: 9789041105707
ISBN: 9041105700
Published: April 1998
Publisher: Brill Academic Publishers
Format: Hardback
Price: £171.00

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The book explores how courts decide, or ought to decide, in situations of uncertainty. A Court must always decide the case before it, even if the relevant facts remain unclear. The question then arises which party benefits and which party is burdened by that uncertainty. This is the field of application of the rules on the burden of proof or, more precisely, the burden of persuasion. Their importance for the individual claimant is obvious.;The comparison of two domestic systems (one based on common law and the other a traditional code-based legal order) with regard to the issue of burden of proof helps to clarify the terminology and lays the ground for dealing with the burden of proof in international human rights law. Without knowing what can be understood by the term ""burden of proof"" under domestic law, international lawyers with different domestic law backgrounds are in danger of misunderstanding each other. This may lead to obscuring the problems connected with court decisions involving uncertainty.;The study also deals with uncertainties with regard to legislative (general) in contrast to adjudicative (individual) facts and with uncertainties in the framework of predictions in contrast to uncertainties relating to historic facts.;It attempts to prepare the ground for dealing more consciously and more consistently with problems of uncertainty in international human rights law. International courts, due to their geographical and cultural distance from the case, usually have less access to the underlying facts. Nevertheless, in order to protect human rights effectively, international courts and tribunals cannot always restrict themselves to reviewing the law, but may also have to decide on the facts. Thus issues relating to decision-making on the basis of uncertain facts, including the burden of persuasion, are even more important in international than in domestic human rights law.

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1: Comparative Law Analysis: The American and the German Systems. I. The Two Kinds of Burden of Proof. II. Different Standards of Proof. III. Interrelationship between the Effectiveness of Human Rights and the Rules on Proof. IV. Shortcuts to Proof. V. The Presumption of Constitutionality. VI. Decisions by the Executive. VII. Conclusions to Chapter 1.
2: The Burden of Proof in American Constitutional Law. I. The Freedom of Speech and the Press and the Burden of Proof. II. Equal Protection. III. A Related Subject: The Weight of the Burden of Persuasion. IV. Conclusions to Chapter 2.
3: The Burden of Proof in International Human Rights Law. I. The Two Kinds of Burden of Proof. II. The Prohibition of Non-Liquet Under International Law. III. The Voluntary Character of International Jurisdiction and Non- Liquet. IV. The Categories of Plaintiff and Defendant. V. Adversarial or Investigatory Character of International Proceedings. VI. Free Evaluation of Evidence and the Measure of Proof. VII. The Burden of Persuasion in International Human Rights Law. VIII. Conclusions to Chapter 3. Concluding Remarks. Table of Cases.