(6) Evidence / Civil procedure (Evidence in international dispute…
(6) Evidence / Civil procedure
Evidence in international dispute settlement in general
Common law world vs civil law world: there is a difference in how evidence is treated i.e. france, germany spain, netherlands (civil law/continental model),
In english law / common law tradition, there are certain rules that instruct a judge / ct as to what is the standard of proof. In civil law, there is no such structured approach.
standard of proof
International courts and tribunals have generally been reluctant to set out a particular standard of proof; this, as President Higgins has explained: ‘is caused by the gap between the explicit standard-setting approach of the common law and the “intime conviction du juge” familiar under civil law; the ICJ naturally has judges from both of these traditions on its Bench’: Speech to the Sixth Committee of the General Assembly, 2 Nov. 2007,
discussed evidence: in the common law, there is an 'explicit standard setting approacj2, civil law has 'intime conviction du juge' - the intimate conviction of the judge. The french phrase means whether it is convinced or nt.
What about beyond reasonable doubt? -> criminal law. A higher evidentiary threshold than BOProbabilities.
in a civil case, ie tort: A sues B in english cts and A makes claims about B's tortious activities, then A in order to make good on claims, must prove "on the balance of probabilities" that A is right and B is wrong. It means that it is more than likely to be the case -> this is the first standard (more likely than not). A needs to be just above 50%.
have both in civil and criminal cases, the same standard i.e. “intime conviction du juge” -> no distinction is drawn btwn BOP and BRD.
somewhere in between. ICJ has judges from both traditions.
Burden of proof
Know the difference between BOP and Standard of proof
‘As a general rule, it is for the party which alleges a fact in support of its claims to prove the existence of that fact’: Ahmadou Sadio Diallo (Guinea v DRC), Merits, ICJ Rep 2010, p 639, 660.
if guinea says DRC breached a treaty, then it is for guinea to "prove existence of existence of that fact"
Guinea said congo breached some treaties wrt how congo treated diallo. It is for guinea to prove it had breached the treaty. Diallo was detained in many prisons and guinea claims HR was violated. Congo (respondent) says it cant be proved eg no documents, real evidence, sob.
Ct said if guinea can be shown it is
to be right, then BOP shifts to congo to disprove what guinea has shown as been likely.
Sometimes, bop is shifted in international law (Guinea v DRC case )
this bop shift can be seen in SF bulgaria case for seminaR
NOTE IT IS NOT ALWAYS THE CASE THE GENERAL RULE APPLIES see Diallo p639
Standard of proof
As a matter of international law, the correct test is one of:
‘a balance of probabilities’ (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) ICJ Rep. 1992 p. 350, 506, para. 248 (no need to read this case; it is interesting only for this sentence).
Ct says el salv proved on bop it is right. Thus, in itl like in a civil law case, (i.e. tort suing), will rely on BOP as a test. -> quite similar to the english approach
Similarly, Ioannis Kardassopoulos & Ron Fuchs v Georgia (Case Nos. ARB/05/18 and ARB/07/15 para. 229) held that the: ‘principle articulated by the vast majority of arbitral tribunals in respect of the burden of proof in international arbitration proceedings applies in these concurrent proceedings and does not impose on the Parties any burden of proof beyond a balance of probabilities’.
"don't have to read" -> says basically the same thing as BOP. But they talk about burden of proof rather than SOP. Eirik prefers using "standard"
"balance of probabilities" - more likely than not
‘International courts and tribunals have avoided the distinction between criminal and civil standards of proof familiar to common law (which requires proof beyond reasonable doubt in criminal cases and proof only on a balance of probabilities in civil cases). The Court has, however, indicated in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment, I.C.J. Reports 2007 (I), pp. 129–130, paras. 208–210) that charges of conduct as grave as genocide require “
proof at a high level of certainty appropriate to the seriousness of the allegation
” (ibid., para. 210). It is implicit in that statement that a lower standard of proof is acceptable in the case of other, less grave, allegations’: Sep. Op. Judge Greenwood in Pulp Mills on the River Uruguay (Argentina v Uruguay) p 14, 221, para 25.
Dichotomies: Civil cases (balance of probabilities test) vs criminal (beyond reasonable doubt) -> ingringementof liberties IS ALWAYS WAY MORE SEVERE THAN financial losses
issue with corruption
Corruption in international litigation -> investment protected under BIL only if you act lawfully. If investor has been acting corruptly, then it is not.
Argument for a higher standard of proof than balance of probabilities? State is saying that investor is engaging in corruption. It would be better to say the burden of proof is on the state… but what is the standard of proof that the state has to prove this?
But if it is BRD, it is difficult for state to prove ….. Corruption by definition happens in secret … geared to evade arm of law. If a state has to prove sth difficult to prove, and in a higher criminal law test, then its impossible ….
ICJ Bosnia said a few things about standard of proof .. This is about a civil case… tort of genocide at international level. Greenwood said in the genocide case… ct requires
'proof at a high level of certainty appropriate to the seriousness of the allegation'.
Standard of proof required needs to reflect enormity of the alleged crime. Greenwood had been looking around and couldn't find the 'LAND, ISLAND, MARITIME FRONTIER' one.
Note that some ICSID Tribunals have relied on a higher standard of proof than balance of probabilities in connection with corruption allegations
In the corruption case Agrima (ICC Case No 12732) the ICC Tribunal observed of the standard of proof to be used in connection with corruption allegations:
‘the standard of proof need not be, and should not be, weakened, nor that it need be or should be strengthened. The same standard of proof, namely one based upon the balance of probability, should be applied. That standard does not require “certainty”, or even “likelihood beyond a reasonable doubt”. Nor does it require conclusive, direct evidence. It requires evidence, to be sure, but such evidence may be indirect or circumstantial,
to the extent it is sufficient, in the context of the surrounding circumstances, to tip the balance of probability
.’: (2011) 22 ICC International Court of Arbitration Bulletin p 78
Agrima - Chamber of commerce
Between 2 private parties.. Follow itl commercial principles. Icsid tribunals have said more is required than BOP
But in agrima, they didn't say we needed more than balance of prob …
Stick religiously to BOProbability….. But it has to be proven/proved in BOP in the context of surrounding circumstances
In the seminar: what does the tribunal mean? We have not forgotten corruption is a serious allegation …… for that reason it is unlikely that an investor would have been corrupt. Whether or not that individual was corrupt need only be proven on BOP. Its difficult to prove corruption on BOP.
Lord mustill in Agrima. Also lord hoffman… had to deal w the qn of whether
in certain circumstances, a higher standrd of proof is required in a civil case
… remember that it is much more unlikely .. Lioness in regents park rather than an alsation… in effect, it is harder to prove what u saw was a lion TL;DR .. Corruption will effectively be more difficult to prove because it may be rather unlikely …….