Adverse Inferences Research Articles

A Legal Notion of Adverse Inference in WTO Case Law

Gathering evidence is of utmost importance in any legal proceeding. However, sometimes, one of the parties may hide specific evidence, which complicates the adjudicators’ reaching of a fair conclusion. For such cases, judges or arbitrators can use several tools, one of which is adverse inference. An adverse inference is a negative conclusion that may be drawn from a party’s failure to provide some evidence without a valid excuse for non-production. By drawing it, adjudicators assume this evidence would harm the party’s interests. At the same time, adverse inference is quite a radical tool because it may strongly impact the final decision. Because of this, adjudicators are sometimes cautious about using it. This paper analyzes the notion of adverse inference in the context of the dispute resolution mechanism available in the WTO. In particular, three cases were summarized in which the Appellate Body made interesting findings regarding the application of adverse inference. As a result of the work, conclusions from these cases are made that can be used by lawyers in future WTO disputes, as well as in other international and national dispute resolution fora.

The Right to Silence Under Scrutiny: Unveiling the Significance of Section 313 of the Code of Criminal Procedure of India

Abstract The often-overlooked provision of criminal law, which holds significant importance is section 313 of the Code of Criminal Procedure 1973. Section 313 grants the accused an opportunity to provide their statement, ensuring their right to be heard and preventing self-incrimination. This article explores the background, evolution, and objectives of section 313 CrPC, as well as its alignment with the principles of natural justice. The main aim of the article is to demonstrate how India still falls short in upholding the right to silence as per section 313, through a detailed analysis of various judgments passed by the Supreme Court of India, and laws enacted in other jurisdictions around the world. The article addresses the issue of Indian courts using adverse inferences from an accused person’s silence, which conflicts with Article 20(3) of the Indian Constitution. It argues that drawing such inferences should be reconsidered by the courts, as it contradicts important legal principles and undermines the right to a fair trial.

Talking to the enemy: Explaining the emergence of peace talks in interstate war

Why are some states open to talking while fighting while others are not? We argue that a state considering opening negotiations is concerned not only with the adverse inference that the opposing state will draw, but also the actions that the opposing state might take in response to that inference. We use a formal model, with assumptions grounded in extensive historical evidence, to highlight one particular response to opening negotiations—the escalation of war efforts—and one particular characteristic of the state opening negotiations—its resilience to escalation. We find that states are willing to open negotiations under two conditions: when their opponents find escalation too costly, and when there is a signal of high resilience that only the highly resilient care to use. To illustrate the dynamics of the second condition, we offer an extended case study detailing North Vietnam’s changing approach to negotiations during the Vietnam War.

МОЛЧАНИЕ ОБВИНЯЕМОГО В УГОЛОВНО-ПРОЦЕССУАЛЬНОМ ЗАКОНОДАТЕЛЬСТВЕ РОССИЙСКОЙ ФЕДЕРАЦИИ И ИНОСТРАННЫХ ЮРИСДИКЦИЙ

Introduction: the article analyzes the defendant’s silence models in foreign states (England and Wales, Ireland, the United States, the Netherlands, Belgium) and in Russia, with a focus on the evidence thresholds that allow drawing adverse inferences from the accused’s refusal or failure to answer questions as well as on the scope of these inferences. The historical retrospective of the issue and the development of international standards permitting the use of silence for evidentiary purposes are explored. The purpose of the paper is to study the legislation and law enforcement practice of the selected countries with regard to the conditions under which adverse inferences can be drawn from the defendant’s silence. Methods: general scientific methods of analysis, synthesis, analogy, and interpretation; comparative legal, formal legal, and axiological methods. Results: the author identifies the categories (groups) of crimes to which provisions on adverse inferences are applicable and indicates the guarantees designed to compensate for the limitation of the right to remain silent. The implementation of such guarantees in Russian legislation and their practical application are analyzed. The author outlines the possible negative scenarios for criminal process in Russia in cases where ambush defenses are raised. The experience of Belgium and the Netherlands in investigating stand-alone money laundering exemplifies the algorithm of using the indirect method of proof and demonstrates the role of the defendant’s failure to clarify the origin of an asset suspected to originate from an illegal source as corroborative evidence. Conclusions: while the presumption of innocence is a universal principle, the legal approaches to adverse inference from the defendant’s silence differ from state to state. Attaching the evidentiary importance to the accused’s silence does not violate the right to a fair trial, subject to compliance with the safeguards. The attitude to the evidentiary value of the defendant’s silence in Russia is to be changed due to the known difficulties of prosecution for profit-driven crimes.

‘Basically, I’m gonna ask you a load of questions’ Cautioning exchanges in police interviews with adolescent suspects

The police caution in England and Wales is a compulsory elementof every police interview that informs suspects of their right to silence andoutlines the concept of adverse inference. This research draws on authenticdata from interviews with 17- and 18-year-old suspects from two English policeforces, analysing how the cautioning exchanges are negotiated while consideringsuspects’ ages and legal statuses as children and adults, respectively. Taking aninductive approach rooted in conversation analysis, the findings reveal an overalltendency for interviewers to explain the caution directly after reciting it, therebyacting on a presumption of suspects’ non-comprehension. It is also consideredhow the (discursive) presence of appropriate adults in interviews with juvenilescan complicate the interactions. The study sheds light on the experiences of anunder-researched group of interviewees and discusses the implications of thesefindings on police practice and vulnerable persons’ access to justice.

Corruption Allegations in Arbitration: Burden and Standard of Proof, Red Flags, and a Proposal for Systematization

Arbitration is widely regarded as one of the most efficient mechanisms to solve complex commercial disputes. However, it has not yet been able to present sufficiently cohesive solutions for cases involving contracts obtained through corruption and, oftentimes, the current arbitrator’s toolkit might not be enough to deal with such disputes without compromising the decision, risking its enforceability, and eventually unsettling the status quo of arbitration as an adequate mechanism for dealing with commercial disputes. To harmonize the current treatment of corruption allegations in arbitration and the broader societal fight against corruption, this article analyses the issues arising out of corruption allegations in arbitration and demonstrates how burden and standard of proof can be used as the missing link to seek such cohesiveness. Moreover, it analyses how the use of red flags – which can be obtained primarily from anti-corruption compliance practice – in arbitration is desirable. As a result, this article proposes a systemized framework for addressing allegations of corruption, in which a red flag of great gravity or the accumulation of red flags, in the absence of counterevidence or sufficient evidence to rule out the plausibility of the risk, authorizes arbitrators to apply negative inferences vis-à-vis the suspicion of corruption. corruption, bribery, standard of proof, burden of proof, red flags, adverse inferences, public policy, soft law, compliance, United Nations Convention Against Corruption, Civil Law Convention on Corruption

TAEffect: Quantifying interaction risks in trust‐enabled communication systems

SummaryThe interactive risks of different devices, serving as clients or servers, have increasingly attracted huge attention in various communication systems, such as wireless sensor networks, wireless communication networks, and mobile crowd‐sensing. At present, lots of countermeasures had been proposed and deployed accordingly. Nevertheless, the investigation on the interaction risks between different devices is still very limited to date. In this paper, we propose a novel adverse effect inference mechanism TAEffect for malicious behaviors of devices emerged in various decentralized and open communication systems/networks through network‐percolation theory. At first, four typical malicious interactional behaviors are mapped into four topologies, then, upon which a network influence‐inspired approach is employed to quantify the adverse effect. Finally, multifacet experiments using five real‐world datasets and a synthetic testbed are performed to validate the efficiency and effectiveness. The experimental results show our proposed approach is significant and rational to quantitatively calculate and qualitatively mirror the four kinds of malicious interactional behaviors in diverse misbehavior‐emerged communication systems.

Due process or crime control? An examination of the limits to the right to silence in criminal proceedings in Ghana

This article examines the extent of participation of accused persons in criminal proceedings in Ghana, particularly in the context of the procedural limits to the right to silence and its associated privilege against self-incrimination. Though normatively set along a libertarian theory that largely insulates the accused from matters of proof, the article finds that the legal regime of the right to silence not only admits of several procedural burden-shifting mechanisms that enjoin accused persons to speak and participate in the proof process, it also permits the drawing of adverse inferences against the accused's exercise of the right to silence in several instances. The analysis extends to a critical evaluation of the benefits of silence in the operational design of the adversarial trial. In that context, it discusses the extent of the accused's beneficial use of the right to silence and finds it an imprudent and legally-uninformed exercise that may deprive the accused person of their right to aggressively partake in the search of facts and evidence and thus of their right to adversarial trial. The article is relevant as it constitutes the first attempt at defining the criminal justice policies underlying the limitations to the right to silence in Ghana. It adds to the existing knowledge on the right to silence in criminal proceedings as it delves into the philosophical underpinnings of the criminal procedure which is increasingly leaning towards a truth-finding and utilitarian ideology away from the core due process theory that generally defines the adversarial criminal procedure.

4A_341/2018 del 15 aprile 2019 [Diverging opinions of arbitrators on challenge – Application of adverse inferences rule not a violation of the principle of equal treatment

4A_341/2018 del 15 aprile 2019 [Diverging opinions of arbitrators on challenge – Application of adverse inferences rule not a violation of the principle of equal treatment

“Right to Silence”: A Commentary on Misinterpretation and Violation by the Indian Judiciary

AbstractThe Indian Constitution, being the lengthiest constitution in the world, seeks to accord the “right to silence” the status of a fundamental right, a particularly high threshold from which little to no derogation is permissible. This constitutional guarantee has also been given a statutory backing, wherein the silence of an accused cannot be used to draw an adverse inference against him. As a country which hails itself as a champion of personal liberty, it is disheartening to see that the reality of the situation is disappointing. The draconian pre-Constitution jurisprudence is still followed by most judgements, and often the silence of an accused is used as a “missing link” on the part of the prosecution to establish an accused’s guilt. This occurs either due to the correct provisions not being brought before the notice of the courts, or due to the courts adjudicating in derogation of statutory provisions and settled case laws. In this paper, the authors seek to establish the correct position of the law by taking into account its evolution in Indian and other jurisdictions, and then establish how India continues to fail to give effect to this right, by empirically analysing several judgements of the Supreme Court of India.

Silence with caution: The right to silence in police investigations in Belgium

This article is about the right to remain silent within Belgium. Although the right has always been considered applicable, both the courts and parliament have historically demonstrated a disinclination to define or engage with this. The right to silence is now formally recognised in the Belgian Code of Criminal Procedure, albeit with the classic distinction between those who are not (yet) accused of a crime and those who are formal suspects: while all enjoy the right not to incriminate themselves, only formal suspects in Belgium enjoy the explicit right to remain silent. Accordingly, whilst no one may be obliged to assist with their own conviction or be forced to co-operate with the authorities, it remains unclear how far the right not to cooperate effectively stretches. The case law seems to be moving, albeit slowly, in the direction of confining this right within narrower borders, particularly by excluding its applicability with regard to the unlocking and decryption of digital devices. This is not, however, the only idiosyncrasy concerning the right to silence in Belgium. Among those also addressed in this article are: the lack of caution on the right to remain silent given to arrested persons immediately following their deprivation of liberty (an absence striking for its apparent breach of Directive 2012/13/EU on the right to information in criminal proceedings); the possible inducement to breach the right to silence via the discretionary powers of the public prosecutor to offer a reduction or mitigation in sentence; the obscurity surrounding the definition of ‘interrogation’ and the consequences of this on both the caution and the obtaining of statements; and the extent to which judges can draw adverse inferences from the right to silence. The question remains: is the right to silence currently protected enough?

A pragmatic attitude: The right to silence in the Netherlands

This article examines the workings of the right to silence in a system, which retains a large number of the original ‘inquisitorial’ elements. The right to remain silent was and is a highly contested issue in the Netherlands, which is reflected in the fragmented and often contradictory nature of the respective legal provisions. The Netherlands has diligently implemented the relevant EU Directives and the ECtHR case law in legislation and/or through case law, including the case law on adverse inferences. However, tensions with the right to silence arise indirectly through legislative provisions and case law. Relevant examples are the provisions on interrogative pressure, on the use of suspects’ statements made before invoking the right to silence and on the provision of access to digital data (such as phone passwords) by suspects for the purposes of investigation.

Ireland: Curtailment of the right to silence through statutory adverse inferences

In Ireland, the right to silence has been significantly impacted by the legislative introduction of adverse inference provisions. In specified circumstances, with varying threshold requirements, a suspect’s failure to answer questions or provide information during Garda (police) questioning can form the basis of an inference against them at trial. Ireland has not opted in to either Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence or Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings. This article examines the constitutional and common law context of the protection of the right to silence in Ireland; the operation, and expansion, of the statutory inference regime; the lack of legislative provision for a right to legal assistance during Garda interview; and relevant European Court of Human Rights jurisprudence. While there are some benefits to overt legislation and safeguards attached to the drawing of inferences from pre-trial silence, the question must be asked whether a detained suspect in Ireland truly has a protected right to silence in real terms, given the proliferation of inference provisions.

Disclosure of information under competition: An experimental study

The theory of voluntary disclosure of information posits that market forces lead firms (senders) to disclose information through a process of unravelling. This prediction requires that consumers (receivers) hold correct beliefs and, in equilibrium, make adverse inferences about non-disclosed information. Previous research finds that receivers are naïve and do not sufficiently infer non-disclosure as bad news, leading to the failure of complete unravelling. This paper experimentally examines whether competition between senders increases unravelling and decreases receivers' naivety about non-disclosed information. We find that while complete unravelling fails to occur, competition between senders significantly increases unravelling and receivers' overall welfare. Receivers' welfare increases despite no significant difference in their guesses or beliefs about non-disclosed information relative to the treatment without competition, and this is driven by higher rates of disclosure by senders. We conclude that competition between senders positively affects disclosure of information and receivers' welfare.

Human Rights Protections in Drawing Inferences from Criminal Suspects’ Silence

Abstract This article sheds comparative and contextual light on European and international human rights debates around the privilege against self-incrimination and the right to silence. It does so through an examination of adverse inferences from criminal suspect’s silence in three European jurisdictions with differing procedural traditions: Ireland, Italy and the Netherlands. The article highlights the manner in which adverse inferences have come to be drawn at trial in the three jurisdictions, despite the existence of both European and domestic legal protections for the right to silence. It also explores differing approaches to the practical operation of inference-drawing procedures, including threshold requirements, varying evidential uses of silence and procedural safeguards. The authors argue that human rights’ standard-setting institutions ought to provide clarity on the conditions under which adverse inferences may be tolerated, including the purpose(s) for which inferences may be used, and the necessary surrounding safeguards.

The Constitutional Right to an Implicit Bias Jury Instruction

The Supreme Court has gone to great lengths to prevent jurors from holding defendants’ silence against them. In a trilogy of opinions, the Court concluded that when a defendant refrains from testifying, (1) the prosecutor and judge cannot make adverse comments about that decision; (2) the judge can give a “no adverse inference” instruction even over a defense objection; and (3) the judge must give a “no adverse inference” instruction upon a defense request. Conversely, the Court has never ruled that jurors can impeach their verdict based upon jurors holding a defendant’s silence against him, and lower courts have ruled against recognizing such a right to jury impeachment. Meanwhile, the Supreme Court has addressed the issue of juror racial bias in reverse. In 2017, the Court ruled in Pena-Rodriguez v. Colorado that jurors must be allowed to impeach their verdict based on jurors holding a defendant’s race against him. But the Court has never held that there is a right to an implicit bias jury instruction, and no lower court has ever recognized such a right. In Pena-Rodriguez, however, the Supreme Court clearly recognized that the right to an impartial jury not only addresses “unique historical, constitutional, and institutional concerns,” but also requires “[a] constitutional rule.” Specifically, the Pena-Rodriguez Court concluded that “[a] constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.” This article contends that this rule must go further and address juror racial bias on both the back end and the front end. For the same reasons that the Supreme Court created the right to a jury instruction that jurors must not hold a defendant’s silence against him, it should recognize the right to a jury instruction that jurors must not hold a defendant’s race against him.

Case and Legislation Notes: Honesty is the Best Policy: Adverse Inferences and Non-Disclosure of Matrimonial Assets — <i>UZN v UZM</i>

Case and Legislation Notes: Honesty is the Best Policy: Adverse Inferences and Non-Disclosure of Matrimonial Assets — <i>UZN v UZM</i>

Notes: eThekwini Municipality & others v Westwood Insurance Brokers (Pty) Ltd: Personal costs against public officials through the lens of Westwood

eThekwini Municipality & others v Westwood Insurance Brokers (Pty) Ltd concerns personal costs orders against public officials. The high court sought to extend itself beyond the merits of a tender dispute in its main judgment by engaging in an inquiry about the officials implicated and whether they should be penalised by way of a personal costs order. In its costs judgment, certain individuals within the eThekwini Municipality were mulcted with personal costs orders. On appeal, a full bench cautioned against a court reaching conclusions about officials too quickly and drawing adverse inferences from facts that are not properly pleaded. This is a judgment that has mapped out the procedural steps necessary to make personal costs orders against public officials.

Finansiranje sporova od strane trećih lica i pristup pravdi

The purpose of this paper to analyze whether and to what extent are third-party funding and access to justice intertwined and compatible. The analysis started from recognizing most common challenges with third-party funding and whether these challenges may be overcome with existing regulation and guidelines. Global lack of regulation of this subject is noticeable. This increases the risks of having undisclosed conflict of interests between various participants and affects the confidentiality, efficiency and fairness of the proceedings and ultimately the access to justice considerations. Although third party funding undoubtedly contributes to larger access to justice, an unregulated market of this kind may also draw adverse inference to the access to justice. In conclusion, authors of this paper call for wider regulation of this matter, including both through local legislation and arbitration rules.

The Status of the Testimony of the Non-Appearing Witness in International Arbitration

Abstract A problem that arises from time to time in international arbitration proceedings is how an arbitral tribunal is to deal with the evidence of a non-appearing witness. The applicable rules of arbitration typically confirm that the tribunal has the authority to determine (e.g.) the “admissibility, relevance, materiality and weight of the evidence offered,” but they rarely go any further than this. The purpose of this article is to seek to provide guidance to tribunals by reviewing the available arbitral practice. This reveals that there are circumstances in which tribunals have adopted broadly consistent approaches to the status of the non-appearing witness's written testimony (although this does not appear to extend to the treatment of a non-appearing expert's evidence), and that tribunals have generally not distinguished between the existence of a valid reason for a witness's failure to appear, or of exceptional circumstances which would warrant the witness's evidence being admitted. In addition, tribunals appear to be reluctant to place much weight on a non-appearing witness's written evidence unless it is corroborated by the testimony of other witnesses or documentary evidence, and they are also reluctant to draw adverse inferences from a witness's non-appearance.