Defences and the Burden of Proof in International Law

2020 ◽  
pp. 88-107
Author(s):  
Joost Pauwelyn
Keyword(s):  
International Law ◽  
Burden Of Proof ◽  
Burden Of Persuasion

The burden of proving a defence is said to be on the party invoking it. As trite as this proposition may sound, in international law it hides a far more complex litigation reality. Distinctions must be made both in terms of types of claims in defence, and types of burdens this may impose on the respondent. This chapter distinguishes six different claims in defence: (i) objections to jurisdiction, (ii) objections to admissibility, (iii) exemptions, (iv) absence of breach, (v) exceptions, and (vi) defences under secondary rules. For each of these six claims in defence, five types of burdens are identified: (i) burden of raising a claim in defence, (ii) burden of production of evidence, (iii) burden of persuasion, (iv) quantum of proof, and (v) standard of review. Although for some claims in defence some types of burden are on the defendant, this is certainly not the case for all.

scholarly journals Testing for Negative Spillovers: Is Promoting Human Rights Really Part of the “Problem”?

2021 ◽  
Vol 75 (1) ◽  
pp. 71-102
Author(s):  
Anton Strezhnev ◽  
Judith G. Kelley ◽  
Beth A. Simmons
Keyword(s):  
Human Rights ◽  
International Law ◽  
Instrumental Variable ◽  
Burden Of Proof ◽  
Negative Consequences ◽  
Human Rights Law ◽  
International Human Rights ◽  
First Order ◽  
Trade Offs ◽  
International Human

AbstractThe international community often seeks to promote political reforms in recalcitrant states. Recently, some scholars have argued that, rather than helping, international law and advocacy create new problems because they have negative spillovers that increase rights violations. We review three mechanisms for such spillovers: backlash, trade-offs, and counteraction and concentrate on the last of these. Some researchers assert that governments sometimes “counteract” international human rights pressures by strategically substituting violations in adjacent areas that are either not targeted or are harder to monitor. However, most such research shows only that both outcomes correlate with an intervention—the targeted positively and the spillover negatively. The burden of proof, however, should be as rigorous as those for studies of first-order policy consequences. We show that these correlations by themselves are insufficient to demonstrate counteraction outside of the narrow case where the intervention is assumed to have no direct effect on the spillover, a situation akin to having a valid instrumental variable design. We revisit two prominent findings and show that the evidence for the counteraction claim is weak in both cases. The article contributes methodologically to the study of negative spillovers in general by proposing mediation and sensitivity analysis within an instrumental variables framework for assessing such arguments. It revisits important prior findings that claim negative consequences to human rights law and/or advocacy, and raises critical normative questions regarding how we empirically evaluate hypotheses about causal mechanisms.

Part II Burden and Standard of Proof in International Investment Arbitration, 3 Shifting the Burden of Evidence

2018 ◽  
Author(s):  
Sourgens Frédéric Gilles ◽  
Duggal Kabir ◽  
Laird Ian A
Keyword(s):  
Burden Of Proof ◽  
International Investment ◽  
The Other ◽  
Standard Of Proof ◽  
Investment Arbitration ◽  
Burden Of Persuasion

This chapter explains the process of ‘shifting the burden of evidence’, otherwise known as the ‘shifting principle’. This is the proposition which occurs when the party who bears the initial burden puts forward evidence to support its initial claim. Here, the burden of evidence (or alternatively also termed as the ‘burden of production’, ‘burden of persuasion’, or ‘burden of proceeding’) shifts to the other party to rebut the evidence put forward. Shifting the burden of evidence is to be read in conjunction with the burden of proof principle discussed in the previous chapter. This is because it is only when the initial burden of the party making an allegation is met that the burden is shifted to the other party.

Part II Preliminary Topics, 6 Substance and Procedure

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
International Law ◽  
Foreign Currency ◽  
Burden Of Proof ◽  
Private International Law ◽  
The Law

This chapter examines the substance and procedure of private international law. It first explains the distinction between substance and procedure, noting that all matters appertaining to procedure are governed exclusively by the law of the forum, along with the importance of the distinction and how such distinction is to be made. It then considers a number of particular issues whose classification as substantive or procedural raises difficulties, namely: the time within which an action must be brought; evidence, taking into account evidence by means of request, direct taking of evidence by the requesting court, and presumptions and burden of proof; the identity of the parties to the action; priorities; the nature and extent of remedy; damages; judgments in foreign currency; and execution of judgments.

scholarly journals Facts, Evidence and the Burden of Proof in the World Bank Group Sanctions System

2020 ◽  
Vol 23 (3) ◽  
pp. 685-702
Author(s):  
Joachim Åhman
Keyword(s):  
International Law ◽  
World Bank ◽  
Burden Of Proof ◽  
World Bank Group ◽  
Public International Law ◽  
Procedural Law ◽  
The World Bank ◽  
The World ◽  
Bank Group

ABSTRACT The large and growing number of international judicial and quasi-judicial bodies has made international procedural law an important part of public international law. This article examines how procedural rules of a certain type—provisions related to facts, evidence, and the burden of proof—have been designed in the World Bank Group Sanctions System. The main conclusion is that such rules play a central role, and that considerable efforts have been made during the last two decades to develop a well-functioning body of procedural provisions. However, the article also argues that certain parts of the system could be developed further, in order to make it as clear as possible what is expected from the different actors in the proceedings.

Aspects of Evidence in International Adjudication

2007 ◽  
pp. 83-118
Author(s):  
Chester Brown
Keyword(s):  
International Law ◽  
Burden Of Proof ◽  
International Courts ◽  
Standard Of Proof ◽  
Rules Of Evidence ◽  
Rules Of Procedure ◽  
Evidence Gathering ◽  
General Principles Of Law ◽  
International Adjudication

This chapter examines whether commonalities exist in the rules of evidence applied by different international courts and tribunals. It begins by considering the sources of rules of evidence in international law. These are the constitutive instruments of international courts, rules of procedure, general principles of law, and inherent powers. It then selects a number of evidential issues, being the admission of evidence, the burden of proof, and the standard of proof, and reviews whether international courts adopt similar approaches. The chapter then turns to an examination of the evidence-gathering powers of international courts, such as taking judicial notice of facts, ordering the production of evidence, making site visits, and ordering expert reports. The practice of international courts generally indicates a common approach to these issues, although the application of the rules is not completely consistent.

Fakes v. Republic of Turkey

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 279-302
Keyword(s):  
International Law ◽  
Burden Of Proof ◽  
Content Type ◽  
Customary International Law ◽  
Applicable Law ◽  
Host State ◽  
Diplomatic Protection ◽  
Heavy Burden ◽  
Legal Fees ◽  
Necessary And Sufficient

279Jurisdiction — Foreign investor — Nationality — ICSID Convention, Article 25 — Dual nationality — Effective nationality — Whether an effective nationality test must be read into Article 25 of the ICSID Convention — Whether the explicit exclusion from jurisdiction of dual nationals who held the nationality of the host State was the only jurisdictional bar related to a natural person’s nationality under the ICSID ConventionApplicable law — Customary international law — Diplomatic protection — Effective nationality — ICSID Convention, Article 27(1) — Whether the rules of customary international law applicable in the context of diplomatic protection applied to determine nationality in investor–State arbitrationJurisdiction — Investment — ICSID Convention, Article 25 — Salini test — Legality — Whether the four elements of the Salini test must necessarily be met to determine the existence of an investment — Whether the three objective criteria of contribution, duration and risk were both necessary and sufficient to define an investment within the framework of the ICSID Convention — Whether the applicable BIT imposed further limits on protected investments — Whether the investment fell within the scope of the requirement of legality under municipal lawJurisdiction — Investment — Shares — Evidence — Burden of proof — Whether the share certificates were valid under the law of the host State — Whether the heavy burden of proof of alleged impropriety was met — Whether the claimant held legal title over the share certificates said to constitute the investmentEvidence — Burden of proof — Impropriety — Whether the burden of proof of any allegations of impropriety was particularly heavyCosts — Frivolous proceedings — ICSID Convention, Article 61(2) — ICSID Arbitration Rule 28 — Whether an arbitral tribunal had discretion in frivolous proceedings to allocate the arbitration costs and the legal fees and expenses between the parties by ordering the losing party to bear in full the costs of the arbitration and the entirety of the legal fees and expenses incurred by both parties

Principles of Evidence in Public International Law as Applied by Investor-State Tribunals: Burden and Standards of Proof

2019 ◽  
Vol 2 (2) ◽  
pp. 1-52
Author(s):  
Kabir Duggal ◽  
Wendy W. Cai
Keyword(s):  
International Law ◽  
Burden Of Proof ◽  
Valuable Insight ◽  
International Court Of Justice ◽  
Public International Law ◽  
Investment Arbitration ◽  
Court Of Justice ◽  
International Court ◽  
Standards Of Proof ◽  
Insight Into

AbstractPrinciples of Evidence in Public International Law as Applied by Investor-State Tribunals explores the fundamental principles of evidence and how these principles relating to burden of proof and standards of proof are derived.By tracing the applications of major principles recognized by the International Court of Justice and applied by investor-state tribunal jurisprudence, the authors offer valuable insight into the interpretation, understanding, and nuances of indispensable principles of evidence, an area that has been ignored in both investor-state arbitration and public international law more generally. Each principle is analyzed through historical and modern lenses to provide clarity and cohesion in understanding how fundamental principles of evidence will affect evidentiary dispositions of parties in investment arbitration and public international law cases.

scholarly journals Exceptions in International Law

2020 ◽  
pp. 11-34
Author(s):  
Jaap Hage ◽  
Antonia Waltermann ◽  
Gustavo Arosemena
Keyword(s):  
International Law ◽  
Burden Of Proof ◽  
Legal Consequences

In order to understand the role of exceptions in international law, this chapter distinguishes between applicability and application of rules. An exception to a rule in a case is defined as the situation in which a rule is applicable to, but nevertheless not applied to, the case. This is possible because the applicability of a rule is merely considered to be a reason for applying the rule, which can be outweighed by reasons against application. This chapter argues that exceptions to rules are made mainly for two purposes: to create a division in the burden of proof, or because the legal consequences of the rule in the case are undesirable. The chapter also discusses techniques used by law to avoid rule conflicts and the need for making exceptions, including subscripting, scope limitations, interpretation, derogation, incorporation and reference, and limitations on rule-creating powers.

Part II Burden and Standard of Proof in International Investment Arbitration, 2 Burden of Proof in Investor-State Arbitration

2018 ◽  
Author(s):  
Sourgens Frédéric Gilles ◽  
Duggal Kabir ◽  
Laird Ian A
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Burden Of Proof ◽  
International Investment ◽  
Basic Rule ◽  
Standard Of Proof ◽  
International Agencies ◽  
Investment Arbitration ◽  
International Dispute ◽  
Near Unanimity

This chapter discusses the concept of the burden of proof in investor-state arbitration. The basic rule regarding the burden of proof in international law is that the party who makes an assertion must prove it. The rule has its origins in the traditions of Roman, common, and civil law countries, and is not new or unique to investment arbitration. In fact, this principle has been widely recognized by several international dispute settlement panels, as well as other international agencies. Not every set of arbitration rules explicitly includes this rule, however, although there is near unanimity by tribunals and commentators in its application.

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