In 1958 Neill Alford Jr stated that the likelihood of a dispute as to the facts in any case before the International Court of Justice was fairly remote. He argued that this was so due to the fact that generally neither State party to a case before the Court had sufficient evidence to question the factual assertions made by the other party. However, a number of developments in the intervening fifty or so years have proved Alford wrong, as increasingly the Court has had to deal with cases in which the outcome of the case has turned not just on legal questions but also on factual determinations. As Mosk has stated:

Crucially, such cases requiring a heavy focus on the facts have challenged the Court's traditional approach to the facts. In the past the Court was often able to decide the outcome of a case through reliance on undisputed facts. In essence, in such cases it was not so much the facts that were disputed, but rather the legal conclusions that were to be drawn from them. It has been remarked that ‘[i]n times past, courts and arbitrators dealt with situations that were not as complex as those today’. Whether or not this is so (for cases such as Corfu Channel and Nicaragua could hardly be described as straightforward in terms of the facts), what is certain is that the Court is increasingly deprived of the possibility of basing its decisions on undisputed facts.

In addition to the disputes coming before the Court being consistently complicated, these complex facts are being increasingly contested. States themselves have demonstrated a willingness to use ‘ever more sophisticated forms of evidence to substantiate their claims’.