The Reversal of the Burden of Proof in the Principles of European Tort Law: A Comparison with Dutch Tort Law and Civil Procedure Rules

11 Pages Posted: 26 Jan 2010

See all articles by Ivo Giesen

Ivo Giesen

Utrecht Centre for Accountability and Liability Law; Utrecht University - School of Law

Date Written: January 26, 2010

Abstract

Although it is not one of its main features, the Principles of European Tort Law (PETL) have devoted some attention to the rules regarding the burden of proof in tort cases, especially to the possibility of a reversal of that burden. Since such a reversal of the burden of proof will be highly relevant for the substantive outcome of a tort case, one needs to be able to justify such a reversal on normative grounds. However, that justification is not always advanced clearly enough in the PETL. At the same time the PETL focus largely on the possible exceptions to the general rule on the burden of proof. As a result, the underlying general rule as such has not been codified. This paper analyses the burden of proof rules in the PETL not only from a more technical point of view, but also from the perspective of the possible influence they might have on the substantive outcome of tort cases. To highlight their content, importance and possible inspirational force for a future ‘European tort law,’ these Principles are contrasted with their counterparts under Dutch tort law. The aim is to answer the question whether the choices made in the PETL are justifiable and whether the Dutch tort system can – or maybe even should – seek inspiration from these Principles.

Keywords: tort law, Principles of European Tort Law, burden of proof, reversal, Dutch law

JEL Classification: K13, K40

Suggested Citation

Giesen, Ivo, The Reversal of the Burden of Proof in the Principles of European Tort Law: A Comparison with Dutch Tort Law and Civil Procedure Rules (January 26, 2010). Utrecht Law Review, Vol. 6, No. 1, pp. 22-32, January 2010, Available at SSRN: https://ssrn.com/abstract=1542678

Ivo Giesen (Contact Author)

Utrecht Centre for Accountability and Liability Law ( email )

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Utrecht, 3512 BL
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0031302536148 (Phone)

HOME PAGE: http://www.uu.nl/NL/FACULTEITEN/REBO/ORGANISATIE/DEPARTEMENTEN/DEPARTEMENTRECHTSGELEERDHEID/Pages/de

Utrecht University - School of Law ( email )

3508 TC Utrecht
Utrecht
Netherlands

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