On November 9, 2018, International and Comparative Law Research Center with the support of the Russian Arbitration Center at the Russian Institute of Modern Arbitration held a workshop on the topic "Evidence before international courts and tribunals: distinct fora, similar approaches?". The workshop was held in the format of consecutive panel discussions. Judges and other participants of processes in international courts, professors of Russian and foreign universities took part in the event. They presented their own reports and answered questions from other speakers, audience, and also Internet audience.
The event was attended by members of the Russian state bodies (the Ministry of Foreign Affairs of the Russian Federation, the Ministry of Justice of the Russian Federation, the Prosecutor General’s Office of the Russian Federation), the Council of Europe, the Court of the Eurasian Economic Union, Russian and foreign legal firms, universities and research centers.
Roman Kolodkin welcomed the guests and participants and highlighted the relevance of topic for the current state of doctrine and international practice.
Aniruddha Rajput delivered a keynote statement which he started by pointing out that the very purpose of the workshop was to deal with the evidence as a process of an establishing a fact. He then followed with the indication of the main problems existing within the sphere. In that respect, he marked the importance of identification of similar evidentiary practices across different fields of international law for finding a common “denominator of evidence”. Launching the discussion Dr. Rajput noted that there is sufficiently advanced substantive international law and it is now the time to develop the procedural one, towards which he invited the collective thinking of the workshop.
Starting with the issue of evidence in inter-state litigation, the participants of the first discussion panel, the moderator of which was Gudmundur Eiriksson, concentrated on the following questions. Philippe Couvreur discussed the matters concerned with the burden of proof, methods of proof, forms of evidence, and standards of proof applicable before the International Court of Justice (ICJ). Kate Parlett elaborated on the ICJ’s approach towards fact-finding and expert evidence, noting that it had been heavily criticized in the past. Based on the recent cases, she stressed that there can be cautious optimism whereas the Court has applied a more “robust approach” as to the fact and scientific evidence. James Devaney started by expressing his agreement with the statement of Dr. Parlett, but pointed out that there remains work to be done. He, therefore, suggested some practice directions be taken up by the ICJ. Dr. Devaney then turned to the issue of documentary discovery and discussed the notion of “indirect discovery” that has been developed by the Court in recent cases.
The second discussion panel, the moderator of which was Anatoly Kovler, was devoted to the issues of evidence before regional courts of human rights. Armen Harutyunyan in his presentation outlined a methodological approach of the European Court of Human Rights (ECtHR) used in its practice. Following that Anna Austin went into the discussion of the details of evidence taking in the ECtHR and, in particular, explaining the factors affecting the Court’s approach to the issue of evidence before it and elaborating on the standards of proof applied by the Court. Khanlar Hajiyev in his presentation stopped on specific rules concerning the taking of evidence developed by the ECtHR in its practice. Angelo Matusse gave the African Court’s on Human and Peoples’ Rights perspective on evidence, identifying the rules on burden of proof and the means of evidence used by the Court. Finally, Fredrik Sundberg talked about the importance of the reliability of the facts established in a particular case for the enforcement of judgments.
Evidence in the international criminal jurisdiction has become the topic of the third discussion panel moderated by Bakhtiyar Tuzmukhamedov. Lord Iain Bonomy started by stating that the faults and weaknesses of the present practices have to be identified and addressed when pursuing the clarity of the evidence taking procedures. He, therefore, expressed his view on the problems currently existing in the international criminal tribunals. Peter Kremer then gave an overview of how the issue of evidence has been dealt with by the judges of the International Criminal Tribunal for the former Yugoslavia. Kimberly Prost followed by concentrating on the practices of the International Criminal Court and pointing out that even within the Court itself the ICC struggles to bring similarity into the rules of evidence. Finally, Ivana Hrdličková presented the unique features and problems that the Special Tribunal for Lebanon has to deal with when considering the issue of evidence before it.
The speakers of the fourth discussion panel raised the issue of evidence in international investment, commercial and sport arbitration. The panel's moderator was Michael Swainston. Mojtaba Kazazi started out the discussion by giving an overview of the approach towards evidence in the investment arbitration. He indicated that the rules of evidence in investment arbitration have no that much of a difference from those used in other types of arbitration. Roman Khodykin followed by discussing the issue of negative inferences, its nature, foundations and values in the taking of evidence. Nayla Comair-Obeid then addressed the difference between the common and civil law approaches to evidence and how those are combined in international commercial and investment arbitration. Dirk-Reiner Martens concluded the discussion by pointing out the peculiarities of taking of evidence in sports arbitration.
Summing up the discussion held during the workshop, Aniruddha Rajput expressed optimism towards the possibility of creating the similar approaches to taking of evidence among distinct fora. He pointed out that there are common grounds that could be used to go forward and concluded by referring to the following words: "Rules of any kind are disabling for a bad judge and enabling for a good judge".
Roman Kolodkin made closing remarks thanking everyone for their participation in the event and the fruitful discussion on the topic of the workshop.
The Center is planning to publish the materials of the seminar.