국제사법재판소에서의 입증책임의 분배

Allocation of burden of proof in international litigation

Burden of proof in civil law system is understood the disadvantage or danger that certain facts are deemed not to exist in case where their existence or non-existence is not certain regardless of proving activities by the parties. In common law, it is understood both burden of production, meaning the burden of a party to produce enough evidence to raise the issue of existence or non-existence on certain facts, and burden of persuasion, meaning the similar notion of burden of proof in civil law. Parties have the burden of proof on the facts which they claim to exist, which is called the principle of "actori incumbit onus probani". In civil cases of civil law system, burden of proof is allocated based on the structure of statutes. Facts triggering legal rights to arise should be proved by the parties who claim them; facts triggering legal rights to diminish or extinguish should be proved by the parties who claim them. In international litigation, one clear thing is that the principle, "actori incumbit onus probani", has been confirmed in several cases. However, it has not been developed into more specific rules that may help allocate burden of proof in international litigation. On the other hand, WTO Appellate Body allocates burden of proof based on the structure of the statutes. Unlike domestic cases, shift or alleviation of burden of proof has not been adopted in international cases so far. Disputes settlement by international litigation constitutes the main body of peaceful settlement of international disputes. Allocation of burden of proof plays a critical role in determining the result of litigation. In international litigation, more specific rules allocating burden of proof should be promoted.