Evidence, Fact-Finding and Experts

Abstract

Issues relating to the establishment of the facts, seemingly as stubborn as ever, are a prominent feature of proceedings at the international level today. This chapter examines certain issues of evidence, fact-finding and experts which are common to various dispute settlement mechanisms, with the goal of identifying similarities and differences between these regimes. In doing so, it will focus on three illustrative evidentiary issues in particular, namely; proof, discovery and expert evidence. Section B shows that, in terms of the liberty, burden and standard of proof alike, a significant degree of similarity can be discerned across the international courts and tribunals examined. A relatively informal approach to issues of proof is evident, in the absence of detailed provisions on such issues in relevant constitutive instruments. Section C, dealing with the issue of discovery, reveals a similar lack of detailed evidentiary provisions in this context, and examines how some tribunals have dealt with such issues in recent proceedings. The same trends can be seen in Section D, which addresses perhaps the most prominent evidentiary issue in contemporary practice, expert evidence. Finally, Section E reflects more generally on the issues raised in the preceding sections, noting that a common feature of the international courts and tribunals examined is the flexible nature of the fact-finding regimes which operate. Such flexible regimes, facilitated by relatively rudimentary provisions governing such issues in their constitutive instruments, were designed to accommodate the wishes of the parties, in accordance with the principle of party autonomy. As a result, courts and tribunals are left to innovate solutions to evidentiary issues as they arise on a case by case basis. This, in turn, provides both parties and judges and arbitrators a degree of flexibility and discretion in terms of how to handle such issues, but is also problematic in certain situations, as is illustrated in this Part. For this reason, it is argued that greater clarification and elaboration of evidentiary rules is likely to be necessary in the future.