Standards of proof in company law

an analysis of their application in piercing of the corporate veil cases

Abstract

Standards of proof are criteria used in the evaluation of evidence to assess the amount of evidence needed to prove or disprove the existence of a fact that constitutes, modifies or extinguishes a right. However, these criteria are not widespread in corporate law. In this context, the study will investigate the application of standards of proof in the corporate sphere, based on piercing of the corporate veil cases. The research problem will be: what criterion of probative sufficiency can be adopted for the analysis of a piercing of the corporate veil case? The hypothesis is that the incident requires the adoption of the “clear and convincing evidence” model. The study adopts a hypothetical-deductive approach and is exploratory in nature, having been carried out through bibliographical research. It is concluded that the hypothesis was partially confirmed, as there is a tendency to apply the “clear and convincing evidence” model in the legal hypotheses linked to the “major theory” (art. 50 of the CC/c art. 133, §1 of the CPC) for the cases of piercing of the corporate veil. However, a less rigid evidentiary standard (“preponderance of evidence”) tends to be adopted when the incident is related to the named “lesser theory” (art. 28, of the CDC c/c art. 133, §1, of the CPC).