This chapter focuses on the distribution of the burdens of argumentation in proportionality analysis. A survey of rights adjudication in Latin America and other countries suggests that the idea of proportionality as an interchange of reasons and justifications has substantial conceptual and institutional indeterminacies, which may only be solved with a view on the normative consequences of the different options in different contexts. The chapter explores two extreme versions of the distribution – the dialogic and the unilateral – but also the gradation or continuum between them, with flexible and strict versions of dialogue and open and closed modalities of unilateralism. The selection of one or another point along the spectrum has consequences in terms of normative rationales such as democracy, epistemic quality, integrity, equality or legal security, and should carefully account for contextual elements like patterns of access to justice, legal culture and procedural architectures.

This chapter considers how we determine the final obligations of a corporation where its actions or policies infringe upon fundamental rights. Since there are competing factors, there is a need to balance different interests. I argue that the proportionality test can be applied successfully to balance the fundamental interests of individuals against the interests of the corporation and thus can provide a structured process of reasoning for determining the final negative obligations of corporations. In making this case, I consider the justification for and challenges to applying the proportionality test to conflicts between non-state actors and individuals with a specific focus upon the corporation. I then consider how each stage of the proportionality analysis – purpose, suitability, necessity and balancing - can apply to corporations and the complexities involved in doing so. In doing so, I will show where each factor – identified in the last chapter - fits into the overall analysis.