Full Description
This book addresses the worldwide movement towards granting the parties to a contract the possibility of defining the rules of evidence in a pending or future court procedure. The so-called "evidentiary contracts and agreements" are contractual stipulations to derogate default statutory norms regarding evidence.
Legal systems more inclined to see judges as central characters of litigation often emphasize jurisdictional powers to produce evidence ex officio. Judges should be entitled to bring evidence to the procedure on their own motion to search for the truth; justice and fairness of the final decisions about the facts should be assured as values of public interest, intrinsically dependent on judicial oversight. Therefore, parties should not be able to govern those rules according to their private goals and strategies.
In other legal systems, parties have a stronger role as protagonists of the procedure and should take the more intense initiatives regarding the allegation of facts and the evidence supporting them. Party autonomy to shape the formalities of litigation should follow the waivability of substantive legal rights. Judges would then have a subsidiary role, and parties' stipulations about evidence would reflect the unavoidable private interests involved, including the costs of evidence and its impacts on privacy, professional or trade secrets, and business confidential information.
Across the globe, many contracts nowadays (both nationally and internationally) contain clauses through which the parties intend to control and regulate how evidence is to be taken, evaluated, and how it should or should not support the legal reasoning about facts in judicial decisions. In this backdrop, a comparative analysis of different jurisdictions can certainly be of interest to academics and practitioners. It seems of utmost relevance to debate the admissibility of evidentiary contracts and agreements, their conditions of validity, the role of judges vis-à-vis these stipulations, and the several types of legal transactions that can be entered into by the parties to determine the rules of evidence to be applied in a certain court procedure.
Contents
Evidentiary Agreements: Between Party Autonomy and Court Oversight by Antonio Cabral.- How Far Can Evidentiary Agreements Go? Limits and Possibilities of Contracting Regarding the Evidence from Chinese and Comparative Perspectives by (Hector) Zhixun Cao.- Contractual Clauses on the Burden of Proof and the Standard of Evidence by Magne Strandberg.- Limitations and Possibilities of Procedural Agreements on Standards of Proof in Brazilian Civil Procedural Law by Ravi Peixoto.- Stipulation of Facts and Evidentiary Agreements: Drafting and Interpretation Issues by Ignacio Soba Bracesco.- From Contract to Courtroom: Evidentiary Effects of Non-Disclosure Agreements by Wannes Vandenbussche and Niels Depaepe.- Evidentiary Agreements in Italy: Shaping Admissible Evidence Across Mediation, Negotiation, and Judicial Proceedings by Elena D'Alessandro.- Perspectives on Evidence and Party Autonomy in the Italian Legal System by Alessandro Fabbi.- Evidentiary Agreements in Structural Litigation by María Pía Molina and María Victoria Mosmann.- Evidentiary Waivers in Criminal Adjudication by Talia Fisher.- Law and Economics of Evidentiary Agreements in Civil Procedure by Clarisse Leite.- The Role of Pre-action Protocols in Facilitating Evidentiary Agreements in the English Civil Justice System and a Proposal for Brazil by Masood Ahmed.
