Rigorous debates have followed the formulation of a new law that changes the way Chinese courts handle medical disputes.The draft Tort Liability Law,which is being deliberated by the National People’s Congress(NPC),C...Rigorous debates have followed the formulation of a new law that changes the way Chinese courts handle medical disputes.The draft Tort Liability Law,which is being deliberated by the National People’s Congress(NPC),China’s top legislature,deals with when a person/organization can be sued展开更多
Environmental health incidents have occurred frequently in recent years;in China,however,litigation has not been effective in protecting the rights and interests of victims due to their heavy burden of proof.In order ...Environmental health incidents have occurred frequently in recent years;in China,however,litigation has not been effective in protecting the rights and interests of victims due to their heavy burden of proof.In order to mitigate the burden of proof for victims,the environmental judicature in China introduced the rule of inversion of burden of proof;this means that the victim only assumes the preliminary burden of proof,but in practice it has not been sufficient.Victims in environmental health litigation still face many difficulties in proving causality.Based on the statistical analysis of judicial big data,this paper demonstrates three dilemmas faced by victims.First,the preliminary burden of proof of causality has a high standard.Second,the victim's ability to produce evidence is low.Third,the casual relationship between pollution behaviors and health damage is difficult to identify.When examining the possible legal instruments,there are three aspects to the causes of these dilemmas:theory,judicial practice,and society.The theoretical aspect manifests as the differences between the rule of inversion of burden of proof and the presumption of causality;the practical aspect manifests as the lack of an identification system for personal injury;and the social aspect manifests as the victim's lack of economic,scientific,technological,and information resources,as well as the absence of assistance from government sectors and social organizations.Combining Chinese law with judicial practice,this paper proposes a solution to the dilemma of victims needing to prove causality in environmental health litigation.On the basis of clarifying the theoretical differences between the inversion of burden of proof and the presumption of causality,China should adhere to the rule of inversion of burden of proof,establish an identification system for personal injuries caused by environmental pollution,and use methods such as epidemiological causality,indirect counterevidence,and prima facie bewies.Furthermore,the full functions of the government and social organizations must be brought into play.This will not only help victims demonstrate causality,it can also help victims achieve equitable relief.展开更多
Strasbourg's application of proportionality test has some unique features.Due to the Court inherent subsidiary role,it hardly transplants the formulas and criteria adopted by the German Constitutional Court or Cou...Strasbourg's application of proportionality test has some unique features.Due to the Court inherent subsidiary role,it hardly transplants the formulas and criteria adopted by the German Constitutional Court or Court of Justice European Union(CJEU) in the complete sense.Consequently,the Strasbourg application of the proportionality has been depicted as a "mysterious house" for the reason that it lacks of certainty.Therefore,some scholars often worry the application of the proportionality test will threaten the predictability and the Strasbourg rule of law.Generally,the proportionality test has two internal functions for the Strasbourg judges:(1) strike fair balance between/among the competing interests;(2) testing on the reasonableness and appropriateness between the measures employed and aim pursued.In the first category,the primary task of the Court is to protect the scope of "essence" of the Convention rights from the interference of collective goods relying on the interest-based rights theory.Beyond this scope,the Court would have to balance the interests explicitly incorporated into the Convention rights as well as the external collective goods claimed by the state authorities.In some sensitive judgments,the Strasbourg Court tends to impose the onerous responsibility of "burden of proof" to the State authorities,or strategically defers to the domestic decisions unless they will be found "manifestly unreasonable".Secondly,the Court must take a scrutiny towards the appropriateness between the means employed and ends pursued,and then it has to decide whether a less intrusive alternative existed or will possibly be found or not.Sometimes,the Court might impose state authorities an obligation looking for a new alternation.However,due to subsidiarity characteristic of the Strasbourg Court,the task of the assessments sometimes is complicated and time-consuming,so the Court are not capable of evaluations in all occasions.Finally,the Court could strike down the "chilling consequence" caused by some few of the legitimate measures which may highly potentially threaten the individual rights in the National legal order.展开更多
The discretionary decisions can affect the factual conclusions and hence result in unfairness to one party in a particular case.Understanding that tribunals are always bound to conduct the procedure fairly and within ...The discretionary decisions can affect the factual conclusions and hence result in unfairness to one party in a particular case.Understanding that tribunals are always bound to conduct the procedure fairly and within the limits of certain public policy,a careful examination of these principles to ensure the tribunals staying in course should be warranted.The development of evidentiary rules in investor-state arbitration is bifurcated.On the one hand,significant development has been made with respect to the rules of the taking of evidence as a result of the practice of international tribunals and by various codification efforts.On the other hand,lack of systematic and concrete rules binding tribunals on the exercises of determination of facts,allocating burden of proof and weighing of probative value of evidence makes the result of fact-finding unpredictable,inconsistent and sometimes even arbitrary.International tribunals have considerable discretion in dealing with presented evidence by applying the evidentiary rules they consider fit.This article reviews the principles relating to burden and standard of proof as reflected in international investor-state arbitration.Significant divergences can be discerned in practice.However,this author does not believe that introducing specific and binding evidentiary rules is a solution,considering the fundamental differences between arbitration and litigation.What the author advocates is the development of some guideline rules to ensure greater certainty,while preserving the flexibility of the arbitral process.The balance aims to achieve a level of"guided flexibility"to reduce uncertainties in factual decisions and to endow the less-experienced tribunals with some guidance.展开更多
文摘Rigorous debates have followed the formulation of a new law that changes the way Chinese courts handle medical disputes.The draft Tort Liability Law,which is being deliberated by the National People’s Congress(NPC),China’s top legislature,deals with when a person/organization can be sued
文摘Environmental health incidents have occurred frequently in recent years;in China,however,litigation has not been effective in protecting the rights and interests of victims due to their heavy burden of proof.In order to mitigate the burden of proof for victims,the environmental judicature in China introduced the rule of inversion of burden of proof;this means that the victim only assumes the preliminary burden of proof,but in practice it has not been sufficient.Victims in environmental health litigation still face many difficulties in proving causality.Based on the statistical analysis of judicial big data,this paper demonstrates three dilemmas faced by victims.First,the preliminary burden of proof of causality has a high standard.Second,the victim's ability to produce evidence is low.Third,the casual relationship between pollution behaviors and health damage is difficult to identify.When examining the possible legal instruments,there are three aspects to the causes of these dilemmas:theory,judicial practice,and society.The theoretical aspect manifests as the differences between the rule of inversion of burden of proof and the presumption of causality;the practical aspect manifests as the lack of an identification system for personal injury;and the social aspect manifests as the victim's lack of economic,scientific,technological,and information resources,as well as the absence of assistance from government sectors and social organizations.Combining Chinese law with judicial practice,this paper proposes a solution to the dilemma of victims needing to prove causality in environmental health litigation.On the basis of clarifying the theoretical differences between the inversion of burden of proof and the presumption of causality,China should adhere to the rule of inversion of burden of proof,establish an identification system for personal injuries caused by environmental pollution,and use methods such as epidemiological causality,indirect counterevidence,and prima facie bewies.Furthermore,the full functions of the government and social organizations must be brought into play.This will not only help victims demonstrate causality,it can also help victims achieve equitable relief.
文摘Strasbourg's application of proportionality test has some unique features.Due to the Court inherent subsidiary role,it hardly transplants the formulas and criteria adopted by the German Constitutional Court or Court of Justice European Union(CJEU) in the complete sense.Consequently,the Strasbourg application of the proportionality has been depicted as a "mysterious house" for the reason that it lacks of certainty.Therefore,some scholars often worry the application of the proportionality test will threaten the predictability and the Strasbourg rule of law.Generally,the proportionality test has two internal functions for the Strasbourg judges:(1) strike fair balance between/among the competing interests;(2) testing on the reasonableness and appropriateness between the measures employed and aim pursued.In the first category,the primary task of the Court is to protect the scope of "essence" of the Convention rights from the interference of collective goods relying on the interest-based rights theory.Beyond this scope,the Court would have to balance the interests explicitly incorporated into the Convention rights as well as the external collective goods claimed by the state authorities.In some sensitive judgments,the Strasbourg Court tends to impose the onerous responsibility of "burden of proof" to the State authorities,or strategically defers to the domestic decisions unless they will be found "manifestly unreasonable".Secondly,the Court must take a scrutiny towards the appropriateness between the means employed and ends pursued,and then it has to decide whether a less intrusive alternative existed or will possibly be found or not.Sometimes,the Court might impose state authorities an obligation looking for a new alternation.However,due to subsidiarity characteristic of the Strasbourg Court,the task of the assessments sometimes is complicated and time-consuming,so the Court are not capable of evaluations in all occasions.Finally,the Court could strike down the "chilling consequence" caused by some few of the legitimate measures which may highly potentially threaten the individual rights in the National legal order.
文摘The discretionary decisions can affect the factual conclusions and hence result in unfairness to one party in a particular case.Understanding that tribunals are always bound to conduct the procedure fairly and within the limits of certain public policy,a careful examination of these principles to ensure the tribunals staying in course should be warranted.The development of evidentiary rules in investor-state arbitration is bifurcated.On the one hand,significant development has been made with respect to the rules of the taking of evidence as a result of the practice of international tribunals and by various codification efforts.On the other hand,lack of systematic and concrete rules binding tribunals on the exercises of determination of facts,allocating burden of proof and weighing of probative value of evidence makes the result of fact-finding unpredictable,inconsistent and sometimes even arbitrary.International tribunals have considerable discretion in dealing with presented evidence by applying the evidentiary rules they consider fit.This article reviews the principles relating to burden and standard of proof as reflected in international investor-state arbitration.Significant divergences can be discerned in practice.However,this author does not believe that introducing specific and binding evidentiary rules is a solution,considering the fundamental differences between arbitration and litigation.What the author advocates is the development of some guideline rules to ensure greater certainty,while preserving the flexibility of the arbitral process.The balance aims to achieve a level of"guided flexibility"to reduce uncertainties in factual decisions and to endow the less-experienced tribunals with some guidance.
