Officiële Toelichting

P-21A The requirement stated in Principle 21.1 is often expressed in terms of the formula ‘the burden of proof goes with the burden of pleading.’ The allocation of the burden of pleading is specified by law, ultimately reflecting a sense of fairness. The determination of this allocation is often a matter of substantive law.

P-21B The standard of ‘reasonably convinced’ is in substance that applied in most legal systems. The standard in the United States and some other countries is ‘preponderance of the evidence’ but functionally that is essentially the same.

P-21C Principle 21.3 is based on the principle that both parties have the duty to contribute in good faith to the discharge of the opposing party's burden of proof. See Principle 11. The possibility of drawing adverse inferences ordinarily does not preclude the recalcitrant party from introducing other evidence relevant to the issue in question. Drawing such inferences can be considered a sanction, see Principle 17.3, or a shifting of the burden of proof, see Principle 21.1.