The Bilateral Devil’s Proof Dilemma under Brazilian Legal System

Análise e Soluções

Abstract

This paper aims to analyze alternatives to address the issue of “prova diabólica” (that is, the existence of a fact which is relevant to the outcome of the dispute, but which is, for all parties, impossible or excessively hard to prove), with a focus on alternatives that result in a judgment without recourse to considerations pertaining to the burden of proof. To that effect, 4 (four) points will be addressed. First, an introduction to the issue of “prova diabólica”. Second, alternatives to address this issue within the Brazilian legal system. Third, alternatives to address this issue in international law, particularly the resource to the existence of a suspicion as a sufficient basis for a breach of contract to arise, as well as the analysis of the compatibility of this alternative with the Brazilian legal system. And fourth, final remarks will be presented.