Размещено на http://www.allbest.ru/

2

Размещено на http://www.allbest.ru/

1

FEDERAL STATE AUTONOMOUS EDUCATIONAL INSTITUTION FOR HIGHER INSTITUTION

NATIONALRESEARCHUNIVERSITY

“HIGHERSCHOOL OFECONOMICS”

Faculty flaw

BURDEN OF PROOF ALLOCATION IN INTERNATIONAL DISPUTES ON NON-CONFORMITY OF GOODS

Graduatethesis- BACHELOR'S THESIS

Educational standard 40.03.01 Jurisprudence

Tyagusov Mikhail Mikhailovich

Research supervisor:

Lecturer in Public Law Disciplines Department,

Partner at Petrol Chilikov law offices

Moscow 2020

Contents

Anglo-American terminology has become much more common in international commercial arbitration under CISG and it differentiates the legal burden and the evidential burden.Monaghan N. Law of evidence. - Cambridge University Press, 2015. P. 39. Other self-explanatory terms for the legal burden include “probative burden”, “burden of persuasion”, “the risk of non-persuasion”. The evidential burden is also referred as “burden of production”, “duty of producing evidence”, “burden of going forward with the evidence”.Phipson S. L. The Law of Evidence. - Stevens and Haynes, 1907. - №. 10. para. 6-02.

The legal burden is exactly more familiarly known as simply the burden of proof. Under the legal burden the party shall convince Tribunalof the facts stated by the party with the degree of certainty provided for by the relevant standard of proof(see the second paragraph).This obligationpoints out the party which suffers the consequences of a non-persuasion by the Tribunal. In order to discharge the legal burden, the relevant party must adduce evidence to prove the facts in issue. A standard of proof is attached to the legal burden and the relevant party must adduce sufficiently probative evidence to meet the standard of proof. If the party bearing the legal burden does adduce sufficient evidence to meet the standard of proof, it is deemed to have discharged the burden of proof. Скворцов О. Ю., Савранский М. Ю., Севастьянов Г. В. Международный коммерческий арбитраж: Посвящается профессору Валерию АбрамовичуМусину. - 2018. С. 682.

By contrast, the evidential burden is not a burden of proof in a strict sense. It does not require the party in question to prove facts in issue, it is an obligation on a party to adduce some relevant evidence in order to make an issue a “live” one. In other words, the party bearing the evidential burden must adduce some relevant evidence in order to persuade the Tribunal that the issue canproceedto the Tribunal. Thus, the evidential burden is also a precondition to file a claim without which it may be rejected.James F., Geoff C. Hazard, and John Leubsdorf. 1992. Civil Procedure. P. 338.It is sometimes referred to as “the duty of passing the judge”.Thayer J. B. A preliminary treatise on evidence at the common law. - Little, Brown, 1898. P. 201.This burden is not satisfied if in the tribunal's opinionno reasonable panel can make a decision in favour of the party based on that evidence.Usually, the party who will bear the legal burden in respect of an issue will first have to discharge the evidential burden in respect of that issue. So, the evidential burden must be discharged before the legal burden is triggered.

As the evidential burden is simply an obligation to raise some evidence but that evidence need not actually prove anything and there is no standard of proof attached, it does not usually raise any complicated issues in practice.If the evidential burden has been discharged, it is said that “prima facie evidence” of the facts for claim is provided.The presentation of prima facie evidence is sufficient for the evidentiary initiative to pass to the opponent. Where a party has provided prima facie evidence, the risk of adverse consequences of not providing evidence to the contrary is clearly transferred to the other party.Будылин С. Л. Внутреннее убеждение или баланс вероятностей? Стандарты доказывания в России и за рубежом //Вестник экономического правосудия Российской Федерации (0869-7426). - 2014. - №. 3. - С. 35

Continental tradition shows the akin division under the concepts of objective (substantive ormaterielleBeweislast, objektiveBeweislast, Festellungslast) and subjective (procedural orBeweisfьhrungslast, formelleBeweislast, subjektiveBeweislast) burden of proof.Henninger M. Die Frage der BeweislastimRahmen des UN-Kaufrechts: zugleicheinerechtsvergleichendeGrundlagenstudiezurBeweislast. - VVF, Florentz, 1995. P. 29, e. In objective meaning itis “the risk of facts not being sufficiently established” and in subjective meaning - “the burden of factual substantiation”, equating it essentially to evidential burden and legal burden respectively.Wire and cable case. [Electronic resource] //CISG Database. http://cisgw3.law.pace.edu/cases/040211s1.html (Accessed 10.04.2020). The objective burden of proof is fixed by the virtue of law and stays during the proceedings on one side, while, the subjective burden falls within one or another party during the proceedings.ЕлисеевН.Г. Ibid.

In the doctrinethe burden of proofsometimes is not divided into objective and subjective, referring only to the shifting of the burden of proof (see the next chapter). Some on the contrary strongly criticize the application of the category “burden of proof” to the shifting of the burden: the burden of proof cannot be shifted except in special cases, so it is not entirely correct to define the shift of burden of proofby the same term as the burden of proof.Waincymer J. Procedure and evidence in international arbitration. - Kluwer Law International BV, 2012. P. 773These authors add two definitions to international commercial arbitration: “onus of proof” and “burden of proceeding”, preferring the former because of the presence of the word “burden” in the latter, which is identified with the burden of proof. ProfessorWaincymersuggests that such a confusion of evidentiary definitions has mistakenly led to perception of the burden as dynamic category. Subject to this research is obviously a burden of proof understood as burden of proceedings, not to be mixed with onus of proof.

Distribution of legal burden in common law jurisdictions and objective burden in civil law jurisdictions almost unilaterally follows the principle established in Roman law: eiincumbitprobatio, qui dicit non qui negat (one is burdened with proof, whoever claims, not the one who denies).Lilly G. C. et al. An introduction to the law of evidence. - West Publishing Company, 1978. - P. 41.This principle is always referred as “rule-exception principle”. In German legal theory this principle is referred as theory of the favour structure of the rule (Tatbestandtheorie, Normenbegьstigungsprinzip, Normenbegьstigungsklausel): “each party must assert and prove the conditions of the norm favourable to it”..Rosenberg L. Die Beweislast: auf der grundlage des bьrgerlichengesetzbuchs und der zivilprozessordnung. - Liebmann, 1923. P. 98

This general rule influenced almost all continental jurisdictions which codified similar provisions. The same principle can be seen in the Article 217 of the Spanish Civil Code, Article 8 of the Swiss Civil code, Article 6 of the Polish Civil Code, Article 2697 of the Italian Civil Code. The same rule on the burden of proof allocation is adopted in the French Civil Code in Article 1315: “person who claims the performance of an obligation must prove it”. French Theory treats this principle to be applicable not only to obligations per se but as a general principle.Herzog P. E. et al. Civil procedure in France. - Springer, 2014. P. 310In Common Law the distribution of the objective burden of proof follows continent: “where a given allegation, whether affirmative or negative, forms an essential part of a party's case, the proof of such allegation rests on him”. Zuckerman A. on Civil Procedure: Principles of Practice. - Sweet & Maxwell, 2006. Para. 4-02.

This principle is further an international principle in international procedural law on the distribution of the burden of proof. Injoint American Law Institute-UNIDROIT Principles on Transnational Procedure the same provision has been agreed in Art. 21.1. In commentary P-21A provides that it is often described as “the burden of proof goes with the burden of pleading” and its allocation is almost always determined by substantive law..ALI/UNIDROIT Principles of Transnational Civil Procedure [Electronic resource] // UNIDROIT website. https://www.unidroit.org/instruments/transnational-civil-procedure (Accessed 22.04.2020).

To conclude this brief comparative introduction, both Common and Civil law jurisdiction are relatively consistent on the issue of the burden of proof allocation. Under rule-exception principle dating back to Roman law and Glossographs, the legal (or persuasive) burden generally rests with the party bringing the case to court as the party asserting an issue bears the burden of proving that issue. Thus, as the claimant brings the case involving a matter of non-conformity, it has a burden of proving the facts in issue in his case against the defendant, while the defendant bears the legal burden of proving anything that he raises in his defence.

B. Burden of proof under CISG

Three moments are crucial to determine burden of proof under CISG. First, whether CISG regulates issue of burden of proof at all. Secondly, what is the general rule and what is the exact moment when the burden of proving the non-conformity is on the buyer.

Coming to the first question previously scholars, practitioners and tribunals considered burden of proof as an issue of non-harmonized national procedural law since it is not specifically mentioned in the Article 4 CISG which determines the scope of its application. This view was also first of all justified by the drafting history as the delegates thought inappropriate for the Convention dealing with material sale of goods to regulate issue of evidence.Honnold J. Documentary history of the uniform law for international sales: the studies, deliberations, and decisions that led to the 1980 United Nations Convention with introductions and explanations. - Kluwer Law Intl, 1989. P. 331.Only about 20 years ago decisions stating that burden of proof is not covered by CISG were not rare.Spirits case. [Electronic resource] // CISG Database. http://cisgw3.law.pace.edu/cases/970220s1.html (Accessed 23.04.2020).

Within the time it became obviously reasonable to include burden of proof in the scope of CISG since it is not a solely technical procedural issue. Contrary to that it resolves material matters which are comparable to substantive provisions..Mьller T. M. AusgewдhlteFragen der Beweislastverteilungim UN-KaufrechtimLichte der aktuellenRechtsprechung. - Sellier European Law Publishers; Quadis, 2005. P. 32. Therefore, the predominant view these days that burden of proof is regulatedby CISG. Under Art. 7(2)the burden of proof forms an internal gap in the CISG (except for Art. 79(1) CISG), meaning that an issue only impliedly but not expressly governed by CISG.Mьller T.M. Ibid. P. 33.This view is based on the fact that there is at least one provision in the Convention, article 79, which explicitly addresses the burden of proof. Article 2(a) and 25 CISG are said to impliedly regulating the burden of proof issue as well. Article 25 addresses to some extent the burden of proof of its elements: the burden with respect to the elementof Article 25 relating to the foreseeability of breach rests with the party in breach of the contract.

This change of attitude over the time is rather justified. As shown above almost all jurisdictions contain similar basic rule on the burden allocation. The major difference that civil law jurisdictions consider burden of proof as substantive issue and common law - as procedural.Skontzos A. V. The burden and standard of proof in model international procedural law: dealing with the burden and standard of proof in international disputes //Uniform Law Review. - 2018. - Vol. 23. - №. 3-4. - P. 579.

Hence coming to the second question, burden of proof allocation under CISG follows the same general principle of “rule-exception”, meaning that a party invoking rule for claim or defence should prove facts to substantiate it.Antweiler C. Beweislastverteilungim UN-Kaufrecht: insbesonderebeiVertragsverletzungen des Verkдufers. - Lang, 1995. P. 77. So the distribution of the burden of proof under CISG is based on the relationship between rule and exception that becomes apparent in the wording of a norm: the claimant bears the burden of proof for facts of the constituent elements of the offence which as a rule trigger the legal consequence sought; the burden of proof for the actual preconditions of the exceptional circumstances lies with the opponent.

Vast case practice confirms this principle to be predominant. As pointed out by Prof. Stephan Krцll there are two main categories of such cases.Krцll S. et al. The Burden of Proof for the Non-conformity of Goods Under Art. 35 CISG //АналиПравногфакултета у Београду. - 2011. - Vol. 59. - №. 3. - P. 164. In the first category, the action is being brought by the seller for the purchase price, which buyer refused to pay alleging non-conformity of the goods. In the second category, the buyer acts as a claimant seeking remedies for the alleged non-conformity.Fiberglass composite materials case falls in the first category. In that case Swiss Higher Cantonal Court in 2009 confirmed that despite not being regulated explicitly in CISG, judge cannot resort to national law because CISG implicitly provides “rule and exception” allocation of burden. The same ratio can be found in Oven case. Oven case. [Electronic resource] // CISG database. http://cisgw3.law.pace.edu/cases/070427s1.html (Accessed 23.04.2020).

Even if the Tribunal does not follow the approach that CISG governs the burden of proof it would come to the same practical results as it was inSteel bars case decided by ICC Court in 1993, in which it applied French provisions. Steel bars case. [Electronic resource] // CISG database. http://cisgw3.law.pace.edu/cases/936653i1.html (Accessed 23.04.2020).Nevertheless, there Tribunal even namedrule-exceptionasabasic principle in international trade within the distribution of the burden. In Cocoa beanscase decided in 1998, the Court acknowledged that it is disputable whether CISG governs the burden of proof or in the absence of such regulation a domestic law should be applied. Cocoa beans case. [Electronic resource] // CISG database. http://cisgw3.law.pace.edu/cases/980115s1.html(Accessed 23.04.2020). However, it left the discussion opened since under both approaches the result was the same. In Condensate crude oil mix casedecided in 2002, Netherlands Arbitration Institutereproduces and referred to the rationale of Cocoa beans case in analogy with the Dutch law. These examples also justify the inclusion of the burden in the scope of CISG.

Some scholars indicate thatif parties concluded an arbitration agreement selecting arbitration rules which contain provisions on the burden of proof than they derogated from the CISG's burden of proof rules pursuant to Art. 6 CISG.Krцll S. et al. Cost and Burden of Proof under the CISG-A Discussion amongst Experts //International Trade and Business Law Review. - 2017. - Vol. 20. - P. 214.However, this discussion is also purely theoretical as the outcome will be essentially the same. Allocation of the burden of proof in modern international arbitration follows the sameprinciple. The rule-exception principle is included in almost all arbitration rules:for instance, in UNCITRAL Arbitration Rules and ICAC Russia Arbitration Rules.Скворцов О. Ю., Савранский М. Ю., Севастьянов Г. В.Ibid. 684.

Coming up to the third question, namely after which moment the burden to prove non-conformity rests within the buyer, one should not be misguided by the physical taking of the goods by the buyer. Additionally, to rule-exception principle one has to take into account the moment of risk passing, which should be assessed in conjunctionwith Articles 38 and 39 CISG.

Surprisingly even UNCITRAL Digest of Article 35 case law in the section dedicated to burden of proof does not nuance cases in this matter. In doing so digest presents a case law as a patch-work quilt, mistakenly showing that tribunals do not rely on any general principles and sometimes place the burden on the seller, sometimes on the buyer and stating that “burden of proof varies with the context”.United Nations Commission on International Trade Law. UNCITRAL Digest of Case Law on the United Nations Convention on the International Sale of Goods. - United Nations Publications, 2008.[Electronic resource] // CISG database. http://www.cisg.law.pace.edu/cisg/text/digest-art-35.html (Accessed 22.04.2020). In fact all the mentioned cases in the digest follow the above mentioned rule-exception principle. The difference in the outcome depends on time for examination under Article 38 CISG and the notice of a defect within reasonable time under Article 39 CISG.

This issue was in detail elaborated in the mentioned Wire and Cable case decided by Appellate Court Bern in 2004. It concerned the claim of the buyer to the seller after finding out the incompleteness shortly after the delivery. The rationale for the decision is that the burden is on the seller until the passing of the risk pursuant to Article 36(1) CISG. The norm fixed in the article that the conformity of the goods to the contract should be determined at the moment of transfer of risk to the buyer, follows also the provisions on the risk associated with the destruction or damage to goods.Конференция Организации Объединенных Наций по договорам международной купли-продажи товаров. Официальныеотчеты. Документ № A//CONF. 97//19. Нью-Йорк. 1981. С. 38. Passing of the risk is determinedas a general rule by the agreement of the parties, in the absence of such agreementthe passing of risk shall be assessed in accordance with Art. 67 - 69 CISG.Brunner C. Ibid. P. 227. Essentially the risk shall pass in the case of sale by delivery to a place other than the place of performance after delivery to the carrier pursuant to Art. 67 para. 1 CISG, in the case of goods in transit upon conclusion of the contract pursuant to Art. 68 CISG and in the other cases upon actual or due acceptance of the goods by the buyer pursuant to Article Art. 69 Abs. 1 CISG. If the parties have agreed an Incoterm clause, the passing of risk shall be determined by it. For example, in accordance with FOB Incoterm 2010, the risk is transferred when the goods are placed on a board of the vessel or in the case of DAP Incoterm 2010 when the offer is made for unloading at the destination.ICC. Incoterms® 2010: ICC Rules for the Use of Domestic and International Trade Terms: Entry Into Force: 1 January 2011. - ICC, 2010. P. 228.

However, the burden of proof allocationis not limited by the passing of the risk solely but extended by the time for examination and notification about the possible defects made by the buyer pursuant to Articles 38 and 39 CISG. Thus, if the buyer accepts goods without any notification it is the buyer who bears the burden to prove that the goods were non-conforming when the risk passed. On the contrary, if the buyer notifies within the reasonable time about the non-conformity, it is for the seller to prove the conformity of goods when the risk passed under Article 35 CISG.Schwenzer I. Commentary on the UN Convention on the International Sale of Goods (CISG). - Oxford University Press, 2016. Art. 3 para. 49 In the literatureit is sometimes mistakenly treated as a shifting of the burden of proof but here we are dealing solely with the issue of acceptance of the goods.LinneA. L. Ibid. P. 31

Important to note that in principle the buyer is not obliged to carry out such an inspection which will reveal all defects.Венская конвенция о договорах международной купли-продажи товаров. Комментарий / Богуславский М.М., Вилкова Н.Г., Городисский А.М. и др. М.: Юридическаялитература, 1994. - С. 107.Notably, the Court in Wire and Cable case also expressly stated that it does not mean an obligation of the buyer to examine goods upon the delivery as impractical and unusual business practice due to volume and inconveniences of such immediate examinations. In this case specifically this explanation referred to transport delivery, when trucks arriving to storage areas are eager to leave the premises as soon as possible after delivery.

Important to emphasize that CISG distinguishes time periods for the examination under Art. 38 and for the notice of non-conformity under Article 39 even in the wording: examination should be done in as short period as is practicable within reasonable time.The reason why the exact time frame is not set by the Article 38 instead considering the period as shorts as is practicable in the circumstances is because this frame is different for non-perishable and for perishable goods. The period for long-lasting goods can be as long as 2-3 weeks, while for perishable - 0,5-1 week.VogelH. J. DieUntersuchungs-undRьgepflichtimUN-Kaufrecht. - na, 2000. P. 75 Doctrine and case law on the time frames for notice of defects is less consistent, which leaves to the Tribunal decide more on case-by-case basis: average 1-2 weeksVogel H. J. Ibid., 2 weeksMagnus U., Martinek M. J. Ibid. Art. 39 para. 21, 22 or even 1 months.Schwenzer I. Ibid. Art. 39 para. 17 In Used laundry machine case, the Swiss court considered that buyer duly notified the seller on 26 August, while the delivery was on 29 of July.Used laundry machine case. [Electronic resource] // CISG database.http://cisgw3.law.pace.edu/cases/031113s1.html (Accessed 23.04.2020).Notably, such anotice just has to be communicated by any means (including cell phone) and according to Article 27 CISG the risk of non-delivery of the notice is on the seller.

Time is of the crucial importance in such disputes: after a long delay the burden would rest within the buyer and it would be difficult or even impossible to establish with certainty and provide adequate evidence whether the defects were present at the time the risk passed. In casedecided by the Appellate Court of Paris it wasestablished that as the buyer conducted examination within 3 days after delivery on 3 May and notified within 7 days on May 15, the seller continued to bear the burden to prove the conformity “beyond the time of the passing if the risk […] until the expiration of the period for notification”. As the seller failed to discharge the burden, claim was dismissed.Aluminium and Light Industries Company v. Saint Bernard MiroiterieVitrerie. [Electronic resource] // CISG database. http://cisgw3.law.pace.edu/cases/010614f1.html(Accessed 23.04.2020).

It is a consistent approach of rulings in several jurisdictions. The similar scenario and rationale however without such a detailed analysis could be found in also mentioned by UNCITRAL DigestNamur-Kreidverzekering v. Wesco case.Namur-Kreidverzekeringv.Wesco. [Electronic resource] // CISG database. http://cisgw3.law.pace.edu/cases/010614f1.html(Accessed 23.04.2020). decided by Belgian Court in 1996, Garden flowers case.Garden flowers case. [Electronic resource] // CISG database. http://cisgw3.law.pace.edu/cases/940701a3.html(Accessed 23.04.2020). decided by Austrian Court in 1994, Rainbow trout eggs caseRainbow trout eggs case. [Electronic resource] // CISG database. http://cisgw3.law.pace.edu/cases/020621s4.html(Accessed 23.04.2020). decided by Spanish Appellate Court in 2002.In Thermo King v. Cigna Insurance case decided by French Appellate court in Grenoble, the refrigeration unit had broken down shortly after the delivery and subsequently it was the seller to prove non-conformity..Thermo King v. Cigna Insurance. [Electronic resource] // CISG database. http://cisgw3.law.pace.edu/cases/960515f1.html(Accessed 23.04.2020).

To conclude this paragraph, the majority of case law and doctrine considers burden of proof to fall in the scope of CISG. The general ruleto determine its allocation is rule-exception principle. As it is aconsistent approach under both civil and common law, both procedural and substantive law, even if Tribunal does not follow that CISG governs this issue, practical outcome is essentially the same. However, an important consideration in the disputes on non-conformity under CISG has to be made tothe acceptance of the goods. As soon as the buyer has accepted the goods, they are within his territorial jurisdiction. However, the burden of proof may not immediately fall on the buyer, because according to CISG, acceptance of the goods does not mean physical taking of the goods fixed to the moment of the passing of the risk. Only when the short period for examination of the goods and an additional measured period for notice of defect has elapsed, “exclusive possession” over the goods is established as defined by the Swiss Court in Cable drums case.Cable drums case. [Electronic resource] // CISG Database. http://cisgw3.law.pace.edu/cases/040707s1.html (Accessed 23.04.2020).This measured period differs from the category of goods but can be quite long up to 1,5 months. After this moment, the buyer should bear the burden to prove non-conformity under Article 35 CISG. On the contrary, if a defect is notified within a reasonable period of time, it is the seller must therefore prove that the goods were conformingat the time the risk passed.

1.2. Standard of proof under CISG: more national than uniform yet

A. Definition and difference between common law and civil law

The burden of proofidentifies the party charged with the duty to produce the evidence. If the primary burden of proof is met, the passivity of the procedural opponent refusing to provide counterproof will mean that the contested fact is proven. If the opponent presents his counterevidence at the same time or after the burdened party has presented its evidence, the Tribunal shall assess all the evidence in the aggregate and determine whether it is sufficient to establish a contested fact and make a decision based on that fact.Карапетов А. Г., Косарев А. С. Стандарты доказывания: аналитическое и эмпирическое исследование //Вестник экономического правосудия Российской Федерации. - 2019. - №. 5. - С. 45.Here the key question arises: how does the Tribunal consider the evidence to be sufficient and the burden of proof of the party concerned to be satisfied and the fact in dispute to be established? The Tribunal in evaluating the presented proofs in their totality and correlating them with a position of the parties on the case cannot establish the objective truth with absolute accuracy in most cases.Objective picture of reality exists, the fact that goods were defective isobjective. The problem is that months (if not years later) the facts of deliveryor the lack thereof can be determined by Tribunal only relatively. Hence, the Tribunal is forced to resolve a dispute under conditions of varying degrees of uncertaintynot only with regard to the law (deficiency, inconsistency or ambiguousness of the sources of positive law)but also with regard to factual circumstances.Thus, the Tribunal has to face the parties' divergent views on the facts, their presentation of contradictory evidenceand to make decisions alongwith the doubts about the facts of the dispute.

The needat some stage to stop the search for truth and to make decisions based on a degree of conviction is also facilitated by the flow of cases, limited time and resources available. The Tribunal is unable to continue clarifying the facts indefinitely: the search, presentation and study of evidence is quite costly. According to Posner under the economic analysis of law at some stage the marginal social costs of finding, presenting, examining and evaluating evidence begin to exceed the social benefits of increasing the credibility of the parties' position on the facts of the dispute and reducing the probability of erroneous fact-finding.Posner R. A. Economic Analysis of Law. Aspen Casebook Series. - 2011.P. 819-820.

Therefore, since in most cases (a) it is simply impossible to establish the facts of the past with absolute accuracy and reliability, (b) further search for the truth may be inexpedient due to the excess of the marginal costs of establishing the facts over the marginal benefits of minimizing the risk of a miscarriage of justice, or (c) the parties have exhausted their evidentiary capacity or have simply have not performed reliable evidence at the stage of gathering and presenting evidence, the Tribunal is forced regularly to make decisions based on imperfect and incomplete information and apply the relevant standard of proof.

Standard of proof represents the degree to which the party bearing the legal burden must discharge that burden. By following the standard of proof, the Tribunal may conclude that a party's assertion of factual circumstances is proven.Waincymer J. Ibid. 766. The range of possible degrees of certainty that a tribunal might have is about the limit of doubts about the truth of fact, which is combined with the readiness of the Tribunal to admit the fact proved.

The credibility of the body of evidence presented by the party bearing the burden of proof, which is perceived by the Tribunals as sufficient and used in practice always referred to as the positive standard of proof, which basically reflects is a social norm. On the contrastnormative standard of proof is ayardstick and certain unification of approaches to determining the permissible level of doubts.Dane F. C. In search of reasonable doubt //Law and Human behavior. - 1985. - Vol. 9. - №. 2. - P. 148. In our research we are clearly concentrating on the normative standard of proof.

In any way both positive and normative standard of proof are closely linked to the notion of probability. The judge or an arbitrator verifies that the evidence presented meets his or her intuitive or recognized standard of proof by assessing the likelihood that the disputed circumstances are as presented by the party bearing the burden of proof. Naturally, this is most often not a frequency (objective) probability based on statistical data on the frequency of occurrence of such phenomena in the past, but rather the so-called subjective probability based on the subjective confidence of a person in the truth of fact.Kaplan J. Decision theory and the factfinding process //Stan L. Rev. - 1967. - Vol. 20. - P 105. According to A.T. Bonner, establishing the circumstances of civil cases on the basis of a high degree of probability in many cases the only possible and necessary way to solve them in conditions where a reliable establishment of truth is virtually impossible.Боннер А. Т. Проблемы установления истины в гражданском процессе. - 2009.C. 44. Hence, the accuracy and reliability of the evidence is always a matter of probability.

As the predominant approach under CISG in practice that standard of proof is governed by non-harmonized national law, thus at this point at first place national concepts first have to be evaluated.The main division between two legal systems lies in the subjective and objective criterion of proof. The subjective criterion of proof bases on the conviction and faith, while subjective - on the probability.ЕлисеевН.Г. Ibid. С. 12.

The common law system standard of proof for civil cases is “balance of probabilities” with the American synonymous variant “preponderance of the evidence”, meaning that the burden is discharged if the fact more probable to be true. The rule was first referred in Miller v. Minister of Pensions (1947) 2 All ER 372, where Judge Lord Denningtongave the definition. Miller v. Minister of Pensions case (1947) 2 All ER 372. [Electronic resource] // Thomson Reuters Practical Law UK. https://uk.practicallaw.thomsonreuters.com/2-500-6576(Accessed 23.04.2020).This formula is always expressed as “more likely than not” or that the probability exceeds 50%.

Naturally, mostly the language is not switched to the percentages and usually it is not said that Tribunal is of 90 or 51% sure of the proven fact. It is just a reflection of subjective certainty within a certain continuum, where the absolute “one does not believe” is 0% and “one isconvinced without the slightest doubt” is 100%.The very existence of a clearly articulated standard of proof in court disputes is largely due to the role of jury trials in Common law jurisdictions.БудылинС. Л. Ibid. P. 25. It is precisely because the facts in them were historically established by the jury and there was a need to develop a constructive and self-explanatory criterion for assessing the evidence. This criterion, e.g. the standard of proof must be sufficiently clear so that the judge can explain it to the jury how this criterion should apply.Будылин С. Л. Ibid. P. 29

The balance of probabilities standard is also justified by economic analysis of law: the standard of proof is designed make the mistake in favour of the claimant and the respondent equal, thus making the public utility maximised.Posner R. A. Ibid. P. 140. It is due to the factor that the negative consequences of an error in favour of the plaintiff (i.e., an erroneous dismissal) are exactly the same as the negative consequences of an error in favour of the defendant (i.e., an erroneous dismissal).

However, in the continental systemthe concept of the inner conviction (l'intime conviction du juge, die richtericheЬberzeugeng)has become more prevalent. Continental legal traditions adopted a free evaluation of evidence principle.Lew J. D. M. et al. Comparative international commercial arbitration. - Kluwer Law International BV, 2003.P. 561.The modern procedural lawin Russiaas well as of many European countries states that a judge evaluates evidence by inner conviction (Article 71 of the RussianArbitration Procedural Code andArticle 67 of the Russian Civil Procedural Code).

To conclude, standard of proof resolves the necessary question of how sure the tribunal of fact must be in any given case be. Standard of proof is needed because it is difficult to establish objective truth within the time, limited evidentiary capacities of the parties and economic efficiency of justice. Contrary to almost identic understanding of the burden of proof in common and civil law traditions, the standard of proof from the first point of view seems to be understood very differently.Common law determines the standard on the balance of probabilities based on objective evidentiary criterion, while civil standard of inner convictionbases on the subjective criterion of proof.