4.8 Burden of proof

The question crises whether French procedural law allows for a reversal of the burden of proof. In principle, the claimant has to provide evidence for the facts that support his claim.1 There is possible support for an affirmative answer in a French Supreme Court judgment where it was ruled that, given the special nature of the doctor-patient relationship, in which a doctor owes his patient a specific contractual or legal obligation to inform him correctly, has to prove that he acted in conformity with that obligation.2 In this special relationship there is an information asymmetry.

It could be argued that the fulfilment of the specific obligation of the issuer and/or the lead manager to inform investors should also be subject to a reversal of the burden of proof because of the similar nature of the relationship. The investor cannot know the (financial) situation and/or business prospects of the issuer. He is completely dependent on the information provided by the issuer in the prospectus. For that reason, the law imposes a specific obligation on companies to publish and distribute a correct and complete prospectus before listing or offering their securities. Because of this information asymmetry, it could be argued that the issuer should prove that he complied with that particular legal obligation: that the information in the prospectus is neither false nor misleading. However, French procedural law does require in any case the claimant to prove that he incurred losses and, that there is the causation between the tortious behaviour and the losses incurred by him.3