Knockin’ on heaven’s door: the burden of proof before international courts

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Author: Ekaterina Diyachenko

DOI: 10.21128/2226-2059-2021-2-111-133

Keywords: burden of proof, competition law, Court of Justice of the European Union, International Court of Justice, prejudical request, the Court of the EAEU

Abstract

The issues of proof and determining the party upon which the corresponding burden rests are key to the administration of justice as the determination of the facts of the case is a compulsory stage prior the application of the legal norm. In the Russian legal doctrine the issue of proof has been extensively developed with regard to proceedings before national courts, but not enough in relation to the activity of international courts, except for the European court of human rights. This article explores the theoretical aspects of proof in international courts, analyses the approaches of the International Court of Justice and the Court of Justice of the European Union regarding the distribution of the burden of proof. A separate object of study is the legal findings of the Court of the Eurasian Economic Union with regard to the issue of proof. The findings of the study show that the universal rule onus probandi actori incumbit has evolved with the development of the international courts’ case law in the direction of a cooperation between the courts and the parties in the collection of evidence and the placement of the burden of proving the validity of acts, actions (failure to act) on the institutions vested with the corresponding powers.

About the author: Ekaterina Diyachenko – Canditate of Sciences (Ph.D.) in Law, Сounsellor to a Judge of the Eurasian Economic Union Court, Senior Researcher of the International Law Sector of the Institute of State and Law, Russian Academy of Sciences, Minsk, Belarus.

Citation: Diyachenko E. (2021) Dostuchat'sya do nebes: bremya dokazyvaniya v mezhdunarodnykh sudakh [Knockin’ on heaven’s door: The burden of proof before international courts]. Mezhdunarodnoe pravosudie, vol. 11, no. 2, pp. 111–133. (In Russian).