Jurisdictional Agreements and Burden of Proofs in EU, English and US Courts


Dimitris Liakopoulos

Series: Laws and Legislation
BISAC: LAW044000

The present survey aims to focus on the delimitation of some definitive findings. The simple choice of terminology is charged with consequences on the conceptual level: “agreements on the forum”, “clauses derogating from jurisdiction” or “agreements on the extension of jurisdiction” ? While when we talk about agreements on jurisdiction we have in mind especially the phenomenon in its civil and commercial declension, in the sense in which these expressions are traditionally used in international instruments as we see in a comparative manner with our research.
The second part of the present work is based on a theoretical and jurisprudential discourse that seeks, at a monographic level, to introduce the central theme of our investigation: How the burden of proof is actually distributed in common law systems? We have decided to deal with all the theoretical aspects of the question, including the matter of presumptions which, as we know, is a topic that can conceptually be traced back to that interests us, given that the main effect of the application of a presumptive rule is to altering the natural allocation of probative costs. The concrete conduct in our paragraphs will be specifically dedicated to a case study of the distribution of the burden of proof as implemented by the American jurisprudence.



Table of Contents

Part 1

Chapter 1. Introduction

Chapter 2. International Jurisdiction in England

Chapter 3. The Agreements on the Forum in the English Common Law

Chapter 4. Validity and Enforceability

Chapter 5. International Jurisdiction in the United States

Chapter 6. The Non Conveniens Forum

Chapter 7. Agreements on the Forum: “the Oust Jurisdiction”

Chapter 8. The Bremen v. Zapata Case

Chapter 9. The Decision in Carnival Cruise Case

Chapter 10. Enforceability in the United States

Chapter 11. (Follows) Reasonableness

Chapter 12. (Follows) Public Policy

Chapter 13. Severability: Autonomy of the Pact

Chapter 14. The Effects Plan

Chapter 15. Tensions between Civil Law/Common Law

Chapter 16. From the Effective Consent to the Presumed Consent…in International Private European Law

Chapter 17. The Control of Reasonableness by the Judge under Regulation 44/2001

Chapter 18. (Follows) Effects against Third Parties

Chapter 19. The Problem of Bills of Lading

Chapter 20. The Tacit Acceptance of the Forum

Chapter 21. Agreement on the Court and Litigation under Regulation 44/2001

Chapter 22. Coordination Tests: The 2005 Hague Convention

Chapter 23. Internationality of the Dispute

Chapter 24. (Follows) Exclusive Clauses

Chapter 25. The Elected Judge Must Exercise His Jurisdiction

Chapter 26. The Unselected Judge Must Abstain

Chapter 27. All Judges Must Recognize and Implement the Decision

Chapter 28. The Declaration Regime

Chapter 29. Concluding Remarks

Part 2

Chapter 30. Premise: The Regulation of Legal Facts in Common Law Systems

Chapter 31. The Division of the Burden of Proof into Production and Persuasion One

Chapter 32. The Burden of Persuasion and the Standards of Proof

Chapter 33. Burden of Production

Chapter 34. The Division of the Burden of Proof between the Parties. Analysis of the Tests Elaborated

Chapter 35. By the Jurisprudence: The Traditional Criterion

Chapter 36. The Other Tests Developed by American Jurisprudence

Chapter 37. The Role of the Judge and the Importance of the Instructions to the Jury

Chapter 38. The Effects Reflected by the Two-Way Division of the Burden of Proof on the Discipline of Presumptions: Evidential and Persuasive Presumptions

Chapter 39. Casistic Analysis of American Jurisprudence


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