Burden of proof

For some, the purpose of evidence is to obtain knowledge regarding the truth of the factual statements presented in the process (Ferrer, 2022, p. 84). Thus, when the means of proof incorporated into the process provide sufficient elements of merit in favor of the effectiveness of a proposition, then that proposition is considered proven.

In this regard, it first falls to the parties of the process to formulate propositions about facts (Articles 254 No. 4 and 309 No. 3 of the CPC). Subsequently, during the evidentiary stage, it is up to those same parties to prove their propositions through means of proof or evidence. In this way, the burden of proof corresponds to the conduct requirement placed upon the parties of the trial to provide the means of proof that the judge considers sufficient to deem a certain proposition about the facts as true.

This is termed a “procedural burden” because if it is not fulfilled the consequences are suffered only by the party that was supposed to satisfy them. Thus, the burden of proof is associated with a rule that establishes the final moment to fulfill the burden (in the first instance, at the end of the evidentiary period, and in the second instance, regarding certain means of proof, until before the hearing of the case). It is also associated with a procedural sanction in the event that it is not carried out, which consists of the burdened party being unable to prove its factual claims and being negatively affected by the decision adopted on the merits (Larrocau, 2013, p. 280).

Traditionally, a distinction has been made between two burdens of proof. On one hand, the objective burden of proof, which refers to the need to prove the factual claims formulated by the parties; and, on the other, the subjective burden of proof, which refers to the necessity that the specific subjects bound by the requirement of conduct be the ones to prove those claims (Hanns, 2010, pp. 453-464). However, in recent years, part of the literature has argued that with the introduction of the system of free valuation of evidence (“sana crítica”), the utility previously served by the burden of proof in its subjective phase —and even in its objective phase— has declined, considering that “it is not the burden of proof that ensures the viability of the final judgment, but res judicata” (Nieva, 2018, p. 142).

Some argue that the subjective burden of proof falls exclusively on the parties and not on the judge, as this respects the distribution of private and social costs imposed by the process (Carrasco, Núñez, and Rojas, 2020, p. 340). Likewise, some maintain that the objective burden of proof is linked to procedural good faith “because it allows the parties’ narrative and the evidence supporting it to be expressed until a final, single moment without the possibility of that evidence being fragmented across various stages” (Carrasco, Núñez, and Rojas, 2020, pp. 344-345).

In Chilean Procedural Law, the rule regarding the burden of proof is contained in the Civil Code regarding the proof of obligations (Title XXI, Book IV), where Article 1698, paragraph 1, provides: “The burden of proving obligations or their extinction falls upon the one who alleges them.”

This provision has been considered a general rule of law applicable in national proceedings despite its location within substantive regulations (Judgment of the Most Excellent Supreme Court, October 30, 2017, Case Rol No. 34.003-2016, Recital 15).

Nevertheless, this provision has been criticized because it only mentions the subjective burden of proof and, in any case, does so incompletely by only referring to the proof of obligations and their extinction, and not to other types of factual claims such as modifying, counter-modifying, or counter-extinguishing facts.

The rule of Article 1698 of the Civil Code serves to distribute the risk of losing assumed by parties in any proceeding involving a controversy, including contentious antitrust proceedings.

In fact, the Antitrust Court (TDLC) has noted this, stating that: “…the burden of proof regarding the allegations made falls upon the plaintiff, such that they must demonstrate the veracity of the factual propositions underpinning their action” (Judgment No. 155/2016 of the H. TDLC, November 14, 2016, Recital 5).

In this sense, there have been final judgments by the TDLC that have applied the rules of subjective and objective burden of proof, penalizing with the dismissal of the claim those plaintiffs who failed to satisfy the conduct requirements associated with demonstrating the truth of the claims they formulated.

This occurred in case Rol C-428-2021, where the plaintiff failed to meet the burden of proving its factual propositions; consequently, the H. TDLC rejected the lawsuit, awarding costs due to the passivity demonstrated during the trial. Regarding this, in Judgment No. 183/2022, the H. TDLC stated:

“The plaintiff did not produce any evidence that would allow this Court to consider the facts constituting the alleged infringements as proven. Indeed, Arabran failed to provide background information to establish the existence of an act of unfair competition, the dominance of the defendant (or a reasonable expectation of achieving it), or the potential anti-competitive effects of the acts of unfair competition alleged in the complaint” (Judgment No. 183/2022 of the H. TDLC, October 14, 2022, Recital 6).

This role of the burden of proof as a rule of decision does not preclude the TDLC from exercising its power to order evidentiary proceedings when it deems them necessary to clarify certain facts (Art. 22, paragraph 2, DL 211). Furthermore, the way the TDLC exercises this power could eventually be reviewed by the Supreme Court, bearing in mind the public interest involved in antitrust cases (e.g., Judgment Rol 34.849/2016, May 30, 2017, Recital 16).