Law students routinely forget that the legal tradition has been concerned with fact finding for centuries. The entire body of evidence law has evolved for two important purposes: ensuring that the evidence presented to a court is legally admissible; and ensuring that the evidence presented to the court is reliable so that the tribunal of fact is able to draw conclusions about whether or not an alleged fact existed in circumstances where the tribunal of fact has not witnessed the event for itself. Legal reasoning is empirically grounded and draws upon centuries of human experience in the examination of materials of this kind. With that in mind, principles from evidence law can be used to help us to think about facts as part of the analysis of a legal problem. Indeed, turning your mind to the rich body of evidence law is essential. It is not possible in a book like this to engage with evidence law in any detail. Evidence law in Australia is comprehensively examined by several authoritative authors, to which the reader is referred to for detail.

This chapter on fact-finding and expert evidence considers how the Court has treated competing evidentiary claims, and how it engages in a fact-finding process, looking at the evolution of the Court’s process in this regard. The author evaluates the significant criticism that has been directed against the Court in respect of its approach to fact-finding and the ways in which the Court has begun to address those criticisms.

This chapter turns to the judicial bureaucrats’ review of the facts and evidence on the record. As all soon discover, it is impossible to reconstruct the historical or objective truth behind a case, but only to come up with a persuasive factual narrative that obscures as much as it reveals. What may appear a structured and logical task proves more akin to bricolage. As they parse through the record, bureaucrats are bound to select the facts they deem most salient, ascribe varying weight to the scraps of information they come across, and use whatever is at hand to stitch up an assessment able to withstand scrutiny. Things get even trickier – and more uncertain – where technical or scientific evidence is involved. Some courts are better equipped to engage in extensive factual review than others. These differences notwithstanding, most international judges tend to have little patience for complex evidentiary issues, which they happily delegate to their legal assistants.

This chapter focuses on the distribution of the burdens of argumentation in proportionality analysis. A survey of rights adjudication in Latin America and other countries suggests that the idea of proportionality as an interchange of reasons and justifications has substantial conceptual and institutional indeterminacies, which may only be solved with a view on the normative consequences of the different options in different contexts. The chapter explores two extreme versions of the distribution – the dialogic and the unilateral – but also the gradation or continuum between them, with flexible and strict versions of dialogue and open and closed modalities of unilateralism. The selection of one or another point along the spectrum has consequences in terms of normative rationales such as democracy, epistemic quality, integrity, equality or legal security, and should carefully account for contextual elements like patterns of access to justice, legal culture and procedural architectures.

This chapter discusses the rules and procedures governing evidence and burden of proof in WTO dispute settlement proceedings. The chapter explains that the WTO follows the normal rule that a party asserting a fact or claim bears the burden of establishing that fact or claim. The chapter discusses the types of evidence that may be submitted in WTO dispute settlement proceedings, including through the use of experts (particularly in cases involving SPS measures). The chapter examines the standard of review used in WTO dispute settlement proceedings. The chapter also discusses the special rules governing confidential information, including the rules governing so-called "business confidential information" and other categories of very sensitive information.

The focus of this book is the uniform Evidence Act (referred to throughout as ‘the Act’ or ‘the Acts’). The Act has not been introduced in Queensland, South Australia or Western Australia, where each state’s Evidence Act and the common law apply. However, the Act is still an important reference guide for those states due to the connection between the common law and the Act. Despite the differences between jurisdictions that have adopted the Act, there is a significant degree of uniformity. Accordingly, in this book the provisions that are extracted to indicate the rules in relation to the Act come from the Commonwealth Act. Any important jurisdictional differences are separately identified.

This chapter considers the legislative history and sets out some fundamental introductory concepts that are used frequently in evidence law and the trial process. This chapter is merely an introductory overview; specific topics are dealt with in substance in subsequent chapters.

The means of detection determined investigation and interrogation practices. Conspiratorial networks and targeted minorities were vulnerable to surveillance and infiltration in ways that society was not. Distinct groups with organized structures could be mapped to uncover organized resistance. Policing criticism was sisyphean by comparison. Blanket surveillance was neither realistic nor desirable. Practically, general suspicion threatened popular support. Ideologically, the police were to cooperate with racial comrades. Faced with limited resources and an impossible task, the Gestapo relied on Germans to denounce opponents in their midst. The Party played an integral role to this end. On the one hand, it screened accusations and channeled reports to the Gestapo. On the other, its officials reported a fifth of critics and encouraged others to do the same. These intermediaries dismissed minor offences, yet the Gestapo ultimately relied on denouncers with mixed motives. Highly questionable evidence documented potentially serious incidents. The Gestapo investigated critics thoroughly and cautiously as a result.

Chapter 9 examines environmental torts with a focus on the special rules and doctrines developed since the 1980s and under the Tort Law (2009) and relevant judicial interpretations of the SPC. Although most pollution-triggered disputes are resolved by mediation, courts offer the crucially important last resort for China’s most aggrieved and stubborn victims of pollution to seek remedies. Their efforts in seeking access to justice have helped shaping and reforming the rules and practice of environmental tort law to address the difficulties in the collection of evidence, assessment of damage, case acceptance by court, and enforcement of judgment. The chapter starts with exploration of the long journey to establish the rule of no-fault liability as an exception to the conventional fault-based liability by both judicial interpretation and legislation. It then examines the causal link between defendant’s acts and plaintiff’s loss or injury and the rule on the shift of burden of proof from plaintiff to defendant. As environmental torts often involve multiple tortfeasors and large number of victims, the chapter further investigates forms of liability among multiple tortfeasors, class action and remedies. It concludes with discussion of judicial mediation as a preferred option for settling disputes in court.

The chapter argues that judicial control mechanisms can provide effective remedies for individuals in ‘grey zones’ provided that the applicant can establish the responsibility of the respondent State and the (quasi-)judicial body is willing to exercise certain judicial activism to promote individuals’ access to international justice. The chapter highlights certain major deficiencies of judicial control mechanisms, before recommending certain tools of judicial activism that may promote individual applications from ‘grey zones’. If the attributability of the conduct to the respondent State is established, judicial control mechanisms are likely to have an impact on the human rights situation in the ‘grey zone’.

Examining changes in the legal rules and procedures that render the courts more or less attractive for rights-claiming helps answer a core question: To what extent and how has civil litigation become an institutional mechanism for rights-claiming in South Korea? The concept of legal opportunity structures pinpoints the relatively stable but not static rules and statutes related to access to the courts, adjudication procedures, and judicial remedies that affect whether individuals and groups will use private litigation to try to enforce rights. This chapter’s analysis indicates that Koreans have benefited from a liberalizing structure of legal opportunities and improved potential for rights protection via the courts in the past two decades. I illustrate how claimants and lawyers are recognizing and using legal opportunities, and sometimes even prying open new opportunities, in pursuit of rights.

Embedded in this analytical framework, the fifth chapter is dedicated to an analysis of how due diligence obligations are applied and implemented in different areas of international law. Since the standard of due diligence is highly context-specific, problems and prospects related to its application are best illustrated by taking a closer look at the standard’s implementation in concreto. To this end, three fields of international law are singled out in which due diligence obligations have already been prominently discussed and which show certain similarities to the area of human rights law: the protection of the environment, the fight against terrorist activities, and rather recently the combat against harmful cyber activities. Based on the analytical framework introduced in the previous chapter, the application of due diligence obligations is discussed for each field taking into account the relevant state practice, international jurisprudence, and scholarly writings.

In his negligence suit against D, C can only recover damages from D where D caused, or materially contributed to, C’s harm; or where, exceptionally, some weaker causal link is established between D’s breach and C’s harm.

One of the few avenues for women to achieve freedom from slavery in the Kingdom of New Granada was to be manumitted by slaveholders. Only ten percent of the enslaved population in New Granada’s central region (state of Cundinamarca) gained their liberty through this legal action. Eufemia Álvarez was part of that small group, as her master Don Juan Álvarez voluntarily manumitted her in the mid eighteenth century. Consequently, her daughter Juana María Álvarez was born in freedom, even if both of them remained servants in Don Juan Álvarez’s household in Guaduas—a rural town that was part of the Royal Road from Honda to Santa Fe. In 1758, Juana María suffered re-enslavement when she was sold and taken to Quito, away from her family. Juana María resorted to the appellate court in Honda to re-claim her freedom and petition for her own protection as well as her daughter’s. Juana María’s biography emerges from legal documents, which record her struggle—and ultimately, her failure—to legitimate her freedom, despite having been voluntarily manumitted by the original slaveholder. Read against the grain, her life serves as a critique of a legal system that failed to protect freed women.

Each Contracting Party shall accord to investors of the other Contracting Party and to their investments treatment no less favourable than that it accords, in like circumstances, to its own investors and investments.

This chapter analyses the preconditions of invoking self-defence against a malicious cyber operation. After examining the notion of 'armed attack' and under what circumstances a cybersecurity incident may reach the critical threshold, the study focuses on the question of attributing the malicious conduct to a state actor. Depending first on identifying the acting individual whose hacking then needs to be linked to a state via the rules enshrined in the ILC Articles on State Responsibility, the question of the applicable standard of evidence is analysed in detail. Concluding that the technical peculiarities of cyberspace will often prevent states from presenting a sufficient amount of proof of adversarial state involvement in a timely manner, the chapter exposes the inherent difficulties in connection with the doctrine of self-defence in cyberspace.