Evidentiary Challenges Research Articles

Evidentiary Challenges in the Context of Armed Conflict

Evidentiary Challenges in the Context of Armed Conflict

Analyzing the Legal Framework of Substitute Heirs in Islamic Inheritance Cases: DKI Jakarta High Religious Courts Perspective

The purpose of this study is to comprehensively analyze the construction and legal certainty of replacement heirs in the compilation of Islamic law and its application in the religious courts of the DKI Jakarta region. This research uses a qualitative method with a normative legal approach, legislation, decision analysis, and Islamic law literature. Primary sources are obtained from the decisions of the religious courts of the DKI Jakarta high religious court region numbered: 131/pdt.p/2022/pa.jp, 339/pdt.p/2021/pa.jp, 166/pdt.p/2021/pa-jb, 3950/pdt.g/2020/pa-js, the compilation of Islamic law, and other legal materials related to inheritance. Meanwhile, secondary sources are obtained from literature searches such as books, documents, and journals that have the same relevance as this research. After the data is obtained and collected, data will be filtered and grouped according to its type, then the data is analyzed using descriptive analysis to be able to provide an overview of the existing problems. The results showed that, the legal construction of the concept of substitute heirs in the Compilation of Islamic Law in the Religious Courts in the DKI Jakarta PTA region by placing the position of substitute heirs by applying justice to the inheritance of his parents who had died before the heir. The research confirms the legal construction and rationale behind substitute heirs in Islamic inheritance law, highlighting their significance in inheritance disputes. Recognized under KHI Article 185, substitute heirs play a crucial role in ensuring fairness and equity in inheritance distribution. However, obstacles such as public awareness, evidentiary challenges, and conflicts with local customs impede the effective implementation of the substitute heir rule.

When is a State’s ‘Hidden Agenda’ Proven? The Role of the Merabishvili’s Three-Legged Evidentiary Test in the Article 18 Strasbourg Case Law

Abstract The increasingly litigated Article 18 echr aims at unmasking the ‘hidden agenda’ pursued by states that proclaim to be restricting human rights for legitimate reasons, but in fact do so for an ‘ulterior purpose’. These complaints generate complex evidentiary challenges. This article investigates the evidentiary regime of Article 18 since the delivery of the Grand Chamber Merabishvili v Georgia judgment in 2017. It shows that this regime is composed of a three-legged evidentiary test requiring: (1) that the Article 18 complaint is a fundamental aspect of the case, (2) the identification of an ‘ulterior purpose’, and (3) the predominance of this purpose in the state’s overall motivation. The article argues that this three-stage test is sui generis, despite borrowing elements from evidentiary regimes, both from other Convention provisions and externally, and that it lacks clarity and coherency: facilitating a higher standard of proof for the provision, which largely burdens applicants.

Returning the Home State to the Global Anti-Corruption Campaign

Abstract International investment law is facing significant challenges in combating corruption in investment activities. The existing scholarly discussions are mostly centred upon the triangular relationship between the foreign investor, the host State and the investment arbitration tribunal. The role of another important body—the home State—has been under-examined, which seems to be better placed to implement measures to effectively govern investors’ (mis)conduct and ensure responsible investments. After identifying the low rate of substantiated corrupt acts in investment arbitration and the lack of a robust corruption prevention system in investment treaties, this article argues that participation of home States in arbitration proceedings can help mitigate those arduous evidentiary challenges and facilitate the fact-finding process. Home States should also impose obligations of delivering periodic corruption risk assessments on investors through domestic legislation and investment treaties.

The craft of translation: documentary practices within immigration advocacy in the United States

AbstractThis article builds on anthropological research on bureaucratic inscription as a power‐laden process to explore the craft of document translation in contexts of immigration legal advocacy. In a legal climate characterized by suspicion and resource scarcity, immigrants who seek to regularize their status in the United States face steep evidentiary challenges, including the requirement that all documentation, including records from their countries of origin, letters of support from friends and family, and their own affidavits, must be translated into English. Approaching immigration document translation ethnographically and drawing on multi‐year fieldwork in a nonprofit providing legal services to low‐income, Spanish‐speaking immigrants, this article focuses on translation as neither straightforward and mechanical nor as impossibly complex but rather as a craft that involves exercising discretion. Practicing this craft with care is one way to counter the otherwise alienating and state‐centric nature of bureaucratic inscription.

Domínio do fato à brasileira: na prática, a teoria é outra - Uma análise da relação entre a denúncia genérica em crimes societários e a aplicação da teoria do domínio do fato, na jurisprudência do Superior Tribunal de Justiça.

This paper begins with an overview of the fundamental conceptions of the German Doctrine of Command Responsibility with the objective to highlight the jurisprudence of the Brazilian Superior Courts. The analytical perspective of this paper about the decisions of the Brazilian Superior Courts is inaugurated with a view on the leading case AP n° 470 judged by the Brazilian Supreme Court - STF. After this initial analysis, this investigation sheds light on the problem of generic charging instrument and the difficulties of individualizing and proving the criminal act executed in a commited corporate crime. A special attention is given to the jurisprudence of the Brazilian Superior Court – STJ for the period 2019-2020 with an objective to clarify whether in the jurisprudence of the STJ, the generic charging instrument of a corporate crime and the Brazilian version of the Doctrine of Command Responsibility become or not the same being endowed with two faces that works as a fast track to overcome evidentiary challenges.

Parental Guidance Suggested: Engaging Parents as Partners in Research Studies of Genomic Screening for a Pediatric Population.

Recent advances in genomic sequencing and genomic medicine are reshaping the landscape of clinical care. As a screening modality, genetic sequencing has the potential to dramatically expand the clinical utility of newborn screening (NBS), though significant barriers remain regarding ethical, legal, and social implications (ELSI) and technical and evidentiary challenges. Stakeholder-informed implementation research is poised to grapple with many of these barriers, and parents are crucial stakeholders in this process. We describe the formation and activities of a Community Research Board (CRB) composed of parents with diverse backgrounds assembled to participate in an ongoing research partnership with genomic and public health researchers at the University of North Carolina. The mission of the CRB is to provide insight into parental perspectives regarding the prospect of adding genomic sequencing to NBS and collaboratively develop strategies to ensure its equitable uptake. We describe how these contributions can improve the accessibility of research and recruitment methods and promote trust and inclusivity within diverse communities to maximize the societal benefit of population genomic screening in healthy children.

“So, Sue Me:” Medical Professionals Should Support Title VI Civil Rights Law Improvements as Part of their Anti-racism Work

“So, Sue Me:” Medical Professionals Should Support Title VI Civil Rights Law Improvements as Part of their Anti-racism Work

Antitrust Law and Dominant-Firm Behavior in the Digital Technology Sector: Toward an Actionable Agenda for Policymakers

Antitrust Law and Dominant-Firm Behavior in the Digital Technology Sector: Toward an Actionable Agenda for Policymakers

Dismantling the Safe Harbour: Solving the Evidentiary Problems in Corruption Allegations in Investor-State Arbitration

By investigating the 32 investor-state arbitration cases where corruption was an issue, this paper illustrates the evidentiary problems in proving corruption in investor-state arbitration. These evidentiary challenges have led investor-state arbitration to become a safe harbour that countenances investments procured by corrupt conduct. To dismantle this safe harbour, the paper raises three evidentiary propositions, which hopefully, can assist future tribunals in assessing corruption allegations in a more principled manner. This paper was submitted to the Young Institute for Transnational Arbitration (ITA) Writing Competition in 2019, and was selected as one of the top three runner-up papers.

Evidentiary Issues in Philip Morris v Uruguay: The Role of the Framework Convention for Tobacco Control and Lessons for NCD Prevention

Abstract This article analyses the evidentiary assessment made by the investment Tribunal in the case of Philip Morris with a view to drawing some lessons for the regulation of non-communicable diseases (NCD) prevention regulations on food, alcohol, and tobacco. After the introduction, the second Section describes why this dispute, like any dispute concerning NCD prevention measures more generally, raised particularly complex evidentiary challenges. The third Section introduces the provisions and features of the ‘evidence-based’ Framework Convention on Tobacco Control (FCTC) relevant to the dispute. The fourth Section describes the evidentiary assessment made by the Philip Morris Tribunal, highlighting how it relied extensively on the evidence stemming from or related to the FCTC rule in favour of Uruguay. Finally, the last Section draws lessons that the NCD prevention regulation can learn from Philip Morris for respondents in possible future investment disputes.

Allocating healthcare resources to genomic testing in Canada: latest evidence and current challenges.

Precision medicine (PM) informed by next-generation sequencing (NGS) poses challenges for health technology assessment (HTA). To date, there has been limited reimbursement of genomic testing with NGS in Canada, particularly for whole-genome and whole-exome sequencing (WGS/WES). Through a structured literature review, we examine Canadian economic evidence and evidentiary challenges for the adoption of genomic testing. We searched Medline (PubMed) for published Canadian studies generating economic evidence for PM informed by NGS. Our search focused on studies examining the costs and/or value of NGS. We reviewed included studies and summarized results according to evaluation type, clinical context, NGS technology, and test strategy. We then grouped HTA challenges encountered by authors when evaluating NGS. Our review included twenty-five studies. To determine the economic impacts of NGS-informed PM in Canada, studies applied cost-effectiveness analysis (52%, n = 13), stated preference analysis (20%, n = 5), cost-consequence analysis (16%, n = 4), and healthcare resource utilization or costing analysis (12%, n = 3). NGS panels were the most common technology evaluated (n = 13), followed by WGS and/or WES (n = 8). The included studies highlighted multiple challenges when generating economic evidence, many of which remain unaddressed. Challenges were broadly related to (1) accounting for all NGS outcomes; (2) addressing uncertainty; and (3) improving consistency of economic approaches. Canadian studies are beginning to produce estimates of the economic impacts of NGS-informed PM, yet challenges for HTA remain. While solutions and real-world evidence are generated, lifecycle health technology management methods can be designed to better support resource allocation decisions for genomic testing in Canada.

Proving liability for highly and fully automated vehicle accidents in Australia

This article considers how liability questions will be resolved under current Australian laws for automated vehicle (‘AV’) accidents. In terms of the parties that are likely to be held responsible, I argue that whether the human driver remains liable depends on the degree to which the relevant AV is automated, and the degree of control the human driver had over the events leading up to the particular accident. Assuming therefore that human drivers would not be held liable for the majority of highly and fully automated vehicle accidents, plaintiffs will have to establish liability on part of those who manufacture, maintain or contribute to the operation of AVs, under the claims available in Australia's product liability regime.This article then turns to the problems of proof that plaintiffs are likely to face in establishing AV manufacturer liability in negligence, or in a defective goods claim under Part 3–5 of the Australian Consumer Law (‘ACL’). Firstly, it may be difficult to determine the cause of the AV accident, due to the technical complexity of AVs and due to ongoing concerns as to the explainability of AI-decision making. Secondly, plaintiffs may struggle to prove fault in a negligence claim, or that the vehicle was defective for the purposes of Part 3–5 of the ACL. Essentially, under both actions, manufacturers will be held to a duty to undertake reasonable testing of their AVs. Given that it is currently impracticable to completely test for, and eliminate all AV errors, and due to the broader social utility the technology is likely to offer, plaintiffs may face evidentiary challenges in proving that the manufacturer's testing was unreasonable.

الأدلة المتحصلة من مواقع التواصل الاجتماعي ودورها في الإثبات الجنائي: دراسة في القانونين الإنجليزي والأمريكي

إن وجود مواقع التواصل الاجتماعي في كل مكان، وفي جميع الأوقات، وحجم المعلومات الشخصية التي تحتويها هذه المواقع، يجعل منها مصدرًا خصبًا وغنيًّا للأدلة المحتملة التي يمكن أن تُستخدم في الإجراءات الجنائية. وبالنظر إلى طبيعة هذه المواقع، فإنها تثير تحديات كبيرة، يتعلَّق بعضها بالمصداقية التي تتمتع بها الأدلة المُتحصَّلة من هذه المواقع. ويعالج هذا البحث المسائل القانونية الناجمة عن استخدام الدليل المُتحصل من مواقع التواصل الاجتماعي، والآثار المترتبة على ذلك في القانونين الإنجليزي والأمريكي. كما يتناول التعريف بمواقع التواصل الاجتماعي وأهميتها في الإجراءات الجنائية. ويعالج أيضًا القضايا المُتعلِّقة بالحصول على الدليل، وقبوله، والتحقق من أصالته، إضافةً إلى المسائل الدستورية التي يثيرها الدليل المُتحصل من مواقع التواصل الاجتماعي. إن قواعد الإثباتالمطبَّقة على المعلومات المخزَّنة إلكترونيًّا ليست كافية للتعامل مع الأدلة المُتحصلة من مواقع التواصل الاجتماعي. وقد توصل البحث إلى أن القواعد التي تحكم الإثبات الجنائي في القانونين الإنجليزي والأمريكي كافية للتعامل مع هذا النوع من الأدلة، إلا أن هنالك حاجة مُلحة لوضع ضوابط تحكم بعض المسائل المهمة، وعلى الأخص التَّحقق من أصالة الدليل الذي تم الحصول عليه من مواقع التواصل الاجتماعي والمقدم في الإجراءات الجنائية. وتتطلب أنواع مختلفة من الأدلة المتحصلة من مواقع التواصل الاجتماعي مؤشرات تثبت المصداقية، ويتعيَّن على الأجهزة المختصة أن تبحث عن وسائل لجمع المعلومات من شأنها أن تؤكد المصداقية. يساعد توثيق عمليات جمع المعلومات بدقة، واستخدام برامج متطورة عند الحاجة، على عدم استبعاد الأدلة المتحصلة من هذه المواقع بدعوى عدم التحقق من مصداقيتها.

Indigenous Exceptionalism under Fire: Assessing Indigenous Soldiers in Combat with the Australian, Canadian, New Zealand and American Armies during the Second World War

ABSTRACTThe literature on Indigenous participation in the Second World War from Canada, the United States, Australia and New Zealand has tended to portray Indigenous soldiers as exceptionally able and courageous in battle. While heart-warmingly laudatory and an understandable product of genuine evidentiary challenges in researching this subject, the image constructed is partial and unrealistic. At best it is misleading; at worst it conflates indigeneity and combat proficiency in ways that reinforce racial stereotypes of Indigenous people as ‘natural’ warriors prevalent during the war. This article argues that we discard the exceptionalism enshrouding Indigenous combat performance in favour of a more culturally nuanced approach.

The Legal Implications of Detecting Alzheimer's Disease Earlier.

Early detection of Alzheimer's disease (AD) raises a number of challenging legal questions. In this essay, we explore some of those questions, such as: Is a neurological indicator of increased risk for AD a legally relevant brain state before there are any outward behavioral manifestations? How should courts address evidentiary challenges to the admissibility of AD-related neuroimaging? How should the government regulate the marketing of neuroimaging diagnostic tools? How should insurance coverage for the use of these new tools be optimized? We suggest that many voices and multidisciplinary perspectives are needed to answer these questions and ensure that legal responses are swift, efficient, and equitable.

Finding Agency in Adversity: Applying the Refugee Convention in the Context of Disasters and Climate Change

This article argues that, as individuals are already applying for refugee status in the context of disasters and climate change, a robust understanding of why disasters happen and how different groups are affected, combined with a principled methodology for determining such claims, are critical aspects of the anxious scrutiny that each claim should receive. The limitations of the “hazards” paradigm, which is shown to be dominant in international refugee law, are highlighted. Adopting the “social” paradigm developed within the field of disaster risk reduction, the argument is advanced that an understanding of disasters as social phenomena within which existing patterns of discrimination contribute to differential impacts, provides a sharper lens with which to consider eligibility for refugee status. The article argues that recent case-law from the New Zealand Immigration and Protection Tribunal reflects an awareness of the social paradigm, and the methodology for determining such claims is described and largely endorsed. It concludes by identifying sources of country of origin information that can help to address some of the evidentiary challenges claimants may face, and argues that the risk assessment under refugee law is more generous than the “immediacy” requirement identified by the New Zealand Immigration and Protection Tribunal in relation to complementary protection claims.

Violations of International Humanitarian Law by Non-State Actors during Cyberwarfare: Challenges for Investigations and Prosecutions

This article argues that it is possible—given the right resources and expertise—to hold individual non-state actors responsible for violations of international humanitarian law (also known as ‘the laws and customs of war’) perpetrated with cyberweapons. It describes jurisdictional elements of violations of the laws and customs of war as well as points that prosecutors and investigators must consider when planning investigations of serious violations of international humanitarian law perpetrated in cyberspace. It addresses how certain theories of individual criminal responsibility for war crimes apply to offences committed by non-state actors during cyberwarfare and identifies particular evidentiary challenges arising from the particular qualities of cyberspace and cyberweapons. Individual accountability for war crimes perpetrated during cyber operations requires new thinking about the application of legal principles and theories during cyber conflict.

Cyber Operations and International Law: An Interventionist Legal Thought

This article argues that the international legal scholarship grappling with cyber operations can be understood as a form of interventionism. Such literature reads as an attempt by international lawyers to intervene in the problems of the world by stretching existing legal frameworks like the United Nations Charter to address what they see as dangerous legal gaps. This article sheds light on the four key argumentative patterns around which such scholarly interventionism is commonly articulated: problem-finding, administrativist camouflage, consequentialist bending, and evidentiary pragmatism. In doing so, attention is paid to the limitations of interventionism, especially at the evidentiary stage. Mention is also made of the alternative argumentative patterns into which international lawyers are pushed because of the evidentiary challenges they face in relation to the management of cyber operations through the United Nations Charter. This article ultimately argues that many of the legal problems faced by those interventionist international lawyers who want to address problems of cyber operations through existing international legal frameworks are self-inflicted.

Cyber Operations and International Law: An Interventionist Legal Thought

This article argues that the international legal scholarship grappling with cyber operations can be understood as a form of interventionism. Such literature reads as an attempt by international lawyers to intervene in the problems of the world by stretching existing legal frameworks like the United Nations Charter to address what they see as dangerous legal gaps. This article sheds light on the four key argumentative patterns around which such scholarly interventionism is commonly articulated: problem-finding, administrativist camouflage, consequentialist bending, and evidentiary pragmatism. In doing so, attention is paid to the limitations of interventionism, especially at the evidentiary stage. Mention is also made of the alternative argumentative patterns into which international lawyers are pushed because of the evidentiary challenges they face in relation to the management of cyber operations through the United Nations Charter. This article ultimately argues that many of the legal problems faced by those interventionist international lawyers who want to address problems of cyber operations through existing international legal frameworks are self-inflicted.