Originally from Anti-Suit Injunctions in International Arbitration

This study has analyzed the significant conditions to obtain an anti-suit injunction in the previous chapters. These conditions are not easy to prove and therefore, which party bears the burden of proof becomes a very essential question. This is important because if the party who has burden of proof does not fulfill its obligation to show the foreign proceeding is “vexatious and oppressive” then the court will reject the request. Therefore, the party with the burden of proof and what that burden is in an anti-suit injunction deserves a separate analysis.

The burden of proof describes a procedural obligation regarding whether a certain event occurred.  In law and practice, some principles have developed to regulate who bears burden of proof. For example, according to article 6 of the Turkish Civil Law No. 4721 (“TCL”), unless otherwise requested by law, each party has to prove the facts upon which it relies.  Article 190 of the Turkish Code of Civil Procedure (“TCCP”) also states that the “burden of proof regarding affect is on the party who benefits from the fact if proved.” If a certain fact is not properly proved, the party shouldering the burden of proof will lose the case.  Based on these approaches, it is possible to argue that there is not a uniform definition of the burden of proof. It is not correct to conclude that the burden of proof is exclusively on a plaintiff or a defendant because the burden of proof may be on either party depending on each case.  In Turkish Law, the party who does not bear the burden of proof does not have to wait for the obligant party to prove the facts first and this principle is laid down in article 191 of TCCP. By doing so, the party will not be deemed to take over the burden of proof from the obligated party. The real importance of the burden of proof arises especially when the evidence is insufficient to persuade the court and the party is still obliged to prove the case.

As can be seen from the TCCP, some laws regulate the burden of proof explicitly by leaving no room for controversies. Since this book analyzes anti-suit injunctions in international arbitration, the burden of proof should be analyzed from a private international law perspective. Some jurisdictions consider the burden of proof and other evidence matters as part of substantive law, whereas some consider these matters as part of procedural law.  This distinction is crucial because unlike substantive matters, procedural matters fall within sovereignty of states and therefore are subject to the lex fori of each country.