Evidence, Fact-Finding, and Experts

Question 1

Examples that International Adjudication Body Rules on Evidence are Rudimentary

Answer 1

ICJ:
Article 48 –> ICJ shall arrange everything in relation to power of evidence.

Article 62 ICJ Rules of the Court

WTO:
WTO DSU Art 11 –> No technical discussion about how panel is meant to go and assess the evidence in a more technical sense.

Question 2

What detailed rules are we missing? (4 suggestions)

Answer 2

Missing Detailed Rules:
(1) Detailed rules on admissibility of evidence

(2) Direct and cross-examination rules
(3) Weight that is meant to be given to particular forms of evidence perhaps depending on their source.
(4) Steps to be taken in cases of fraudulent evidence.

Question 3

Adversarial vs Inquisitorial

Answer 3

• International adjudicatory bodies tend to follow the more adversarial approach (more like common law) to evidence rather than the more civil law approach.
• Parties are expected to provide the evidence.
• Surely this is more likely anyway due to state sovereignty and the restrictions the Court has in getting into a State to get its own evidence.

Question 4

Basic Principles

Answer 4

Proper/good administration of justice and equal and fair opportunities (Nicaragua)

Weighing evidence (DRC v Uganda)

• Material from a single source
• Preference for contemporaneous evidence with direct knowledge of what happened.
• High bar on fact-finding reports.

Question 5

3 Evidence Powers

Answer 5

3 evidence powers:

(1) Power to require parties to produce evidence
(2) Power to make own investigations (proprio motu)
(3) Power to engage experts in proceedings

Question 6

Power to Require Parties to Produce Evidence

Answer 6

ICJ:
Article 49 and 34(2) SICJ
Article 62 Rules of the Court

Question 7

Is there a corresponding legal obligation for parties to disclose material?

Answer 7

Said to emanate from State’s obligation to comply with the UN Charter.

C Brown: State parties have an obligation to comply with “decisions” of the ICJ under Article 94(1) UN Charter

He is implying that “decisions” should be interpreted more widely than merely the final judgement of the Court.

Question 8

Definition of “Burden of Proof”

Answer 8

Which party is obliged to established the facts.

Question 9

Definition of “Standard of Proof”

Answer 9

Measure against which the value of each piece of evidence as well as the overall value of evidence in a given case should be weighed and determined.

Question 10

Standard of Proof vs Burden of Proof

Answer 10

Burden of Proof:
Which party is obliged to establish the facts.

Standard of Proof:
Measure against which each piece of evidence as well as the overall value of evidence in a given case should be weighed and determined.

Question 11

Burden of Proof Basic Rule

Answer 11

Onus probandi incumbat actori

Burden of proof lies with the party making the claim.

Question 12

Onus probandi incumbit actori

Answer 12

Burden of proof lies with the party trying to make the claim.

Question 13

Shifting the Burden of Proof

Answer 13

Shifting the burden of proof is appropriate in certain circumstances.

Metal-Tech v Uzbekistan:
Burden shifting presumptions are usually deemed to be part of the lex causae which here would be the BIT.
The BIT provides no rules for shifting the burden of proof.
Therefore the tribunal has freedom in determining what standard it thinks is necessary for sustaining a determination of corruption.

Tribunal does not require application of rules on burden of proof to resolve dispute.

Question 14

3 Types of Evidence

Answer 14

(1) Direct Evidence
(2) Circumstantial Evidence
(3) Adverse Inference

Question 15

Direct Evidence

Answer 15

Direct evidence proves the existence of a particular fact without any need for inferences or presumptions.

Question 16

Circumstantial Evidence

Answer 16

Circumstantial evidence is indirect evidence of facts which are in dispute between the parties. A series of facts other than the ones that the parties are seeking to prove or disprove.

Question 17

Adverse Inference

Answer 17

Adverse inference is drawn due to the silence of a party.

Question 18

3 Standards of Proof

Answer 18

(1) Beyond Reasonable Doubt
(2) Preponderance of Evidence/Balance of Probabilities
(3) Sufficiency of Evidence

Question 19

Beyond Reasonable Doubt

Answer 19

Evidence must be sufficient to prove the case beyond a reasonable doubt. Higher standard of proof than balance of probabilities.

-Definition is cyclical

Where has beyond reasonable doubt been used?
-Corfu Channel Case –> “Charge of exceptional gravity against a State”

-Bosnia Genocide Case –> Charges of exceptional gravity must be proved by evidence which is fully conclusive.

Question 20

In what cases has the beyond reasonable doubt standard of proof been used?

Answer 20

• Corfu Channel case –> “charge of exceptional gravity against a State”
• Bosnia Genocide case –> Charges of exceptional gravity must be proved by evidence which is fully conclusive.

Didn’t use wording “beyond a reasonable doubt” but it is genuinely understood that this is what the Court meant.

Question 21

Preponderance of Evidence/Balance of Probabilities

Answer 21

Standard of Proof where the fact is proven to be more probable than not. Evidence from one party outweighs the evidence on the other side.

What case was it used in?
-Judge Lauterpacht in Norwegian Loans case

Question 22

Sufficiency of Evidence

Answer 22

Sufficient to convince the judge.

Typical standard that is used by international adjudicatory bodies.

Mentioned in the Following Cases:

• Corfu Channel Case
• Nicaragua Case
• Oil Platform Case
• Several times in Armed Activities on the Territory of the Congo Case

Question 23

Which standard of proof is typical for international adjudicatory bodies?

Answer 23

Preponderance of Evidence

Question 24

2 Types of Experts

Answer 24

(1) Fact Witnesses

(2) Expert Witnesses

Question 25

Facts Witnesses

Answer 25

Fact witnesses provide evidence of facts within their personal knowledge.
They usually testify during oral proceedings but they can also sign their name to an affadavit instead or in addition to oral testimony.

They are subject to direct, cross and redirect cross examination.

Question 26

Expert Witnesses

Answer 26

They explain technical or scientific information to a non-technical bench. They are meant to do so in an impartial manner.

Subject to direct examination and cross-examination.

Question 27

Expert witnesses appearing as counsel

Answer 27

Experts used to appear before the Court not as experts but as counsel. This was significant because at the ICJ, counsel can speak uninterrupted often for lengthy periods of times and judges can only ask questions at the end of their pleading. They also don’t expect counsel to reply right away and they can instead respond in writing.

Question 28

Why is it wrong for expert witnesses to appear as counsel?

Answer 28

Missing an opportunity to be questioned by the Court or parties (because cross examination is also missing).
Flaws in experts reasoning or research cannot be as easily questioned.
In addition, if an expert appears as counsel, he has not sworn the oath that he will only speak the truth (whilst this is only a formality it is a significant one).

Question 29

Pulp Mills (Argentina v Uruguay)

Answer 29

Case that brought an end to the practice of experts acting as counsel.

Facts:

• Argentina filed case against Uruguay alleging that it had violated a bilateral treaty called the Statute of the River Uruguay.
• Statute determined boundary and how they should look after this share natural resource. It was designed to prevent pollution and also to create a procedural mechanism deal with the use of the river and maintain its water quality.
• Uruguay created Pulp Mills located along the rivers.
• Argentina agreed these affected water quality and polluted the river.

Held:

• No conclusive evidence that linked operation of mills to high levels of polluting substances.
• Did find Uruguay had breached its procedural obligations.

-Court also reprimanded counsel from both sides saying that it would have been more useful if they had brought experts as expert witnesses rather than counsel.

Question 30

Which case is known for bringing an end to experts acting as counsel?

Answer 30

Pulp Mills (Argentina v Uruguay)

Court reprimanded counsel from both sides saying that it would have been more useful if they had brought experts as expert witnesses rather than counsel.

Question 31

Court Appointed Experts at the WTO

Answer 31

-Use of experts by panels at the WTO is standard practice.

• But existing rules (Article 11 and 13 DSU) provide minimal detail on how this is meant to be conducted.
• Recourse to experts is considered necessary to fulfil function under Article 11 DSU.

-Written Phase –> Both panel and parties can provide questions.

Question 32

Court Appointed Experts Using PCA

Answer 32

-Not uncommon to appoint experts in inter-state arbitration.

Phillipines-China (South China Sea):

• Appointed hydrographer
• Expert on navigational safety issues
• 3 experts on coral reefs
• Late addition of some experts indicated how the politics of this case (China not appearing) meant that there was such a high level of evidence required to prove the point.

Guyane v Suriname:

• Expert to assist with drawing the maritime boundaries with precision.
• Coordinates were necessary for Tribunal to be able to draw maritime boundary and so tribunal relied on expert’s report.

Indus Waters Kishenganga (Pakistan v India):

• Treaty which was signed in 1960 between India, Pakistan, and World Bank.
• Arbitration proceedings instituted by India in 2010 because they wanted to build a hydroelectric dam. According to Pakistan this was going to violate the terms of the treaty.
• Treaty allowed highly qualified engineers to be members of the bench.

Question 33

Court Appointed Experts for ICJ

Answer 33

-Court appointed experts by the ICJ have been a rare thing.

2 cases which the ICJ appointed experts:
-Corfu Channel case –> 3 naval experts were appointed to work out if mining could go undetected.

-Gulf of Maine –> Case between the US and Canada –> Technical exercise of drawing a maritime boundary.

Question 34

Court Appointed Experts - ICJ

Corfu Channel Case

Answer 34

3 naval experts were appointed to work out if mining could go undetected.

Question 35

Court Appointed Experts - ICJ

Gulf of Maine case

Answer 35

Technical exercise of drawing a maritime border.

Question 36

Court Appointed Experts - PCA

Phillipines-China (South China Sea)

Answer 36

• Appointed hydrographer
• Expert on navigational safety issues
• 3 experts on coral reefs
• Late addition of some experts indicated how the politics of this case (China not appearing) meant that there was such a high level of evidence required to prove the point.