Evidence, Fact-Finding, and Experts Flashcards
Examples that International Adjudication Body Rules on Evidence are Rudimentary
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.
What detailed rules are we missing? (4 suggestions)
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.
Adversarial vs Inquisitorial
- 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.
Basic Principles
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.
3 Evidence Powers
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
Power to Require Parties to Produce Evidence
ICJ:
Article 49 and 34(2) SICJ
Article 62 Rules of the Court
Is there a corresponding legal obligation for parties to disclose material?
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.
Definition of “Burden of Proof”
Which party is obliged to established the facts.
Definition of “Standard of Proof”
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.
Standard of Proof vs Burden of Proof
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.
Burden of Proof Basic Rule
Onus probandi incumbat actori
Burden of proof lies with the party making the claim.
Onus probandi incumbit actori
Burden of proof lies with the party trying to make the claim.
Shifting the Burden of Proof
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.
3 Types of Evidence
(1) Direct Evidence
(2) Circumstantial Evidence
(3) Adverse Inference
Direct Evidence
Direct evidence proves the existence of a particular fact without any need for inferences or presumptions.
Circumstantial Evidence
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.
Adverse Inference
Adverse inference is drawn due to the silence of a party.
3 Standards of Proof
(1) Beyond Reasonable Doubt
(2) Preponderance of Evidence/Balance of Probabilities
(3) Sufficiency of Evidence
Beyond Reasonable Doubt
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.
In what cases has the beyond reasonable doubt standard of proof 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.
Didn’t use wording “beyond a reasonable doubt” but it is genuinely understood that this is what the Court meant.
Preponderance of Evidence/Balance of Probabilities
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
Sufficiency of Evidence
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
Which standard of proof is typical for international adjudicatory bodies?
Preponderance of Evidence
2 Types of Experts
(1) Fact Witnesses
(2) Expert Witnesses
