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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.

Focusing on evidentiary approaches, this article examines the burdens and standards of proof applied at United Nations quasi-judicial international human rights bodies. These bodies have dual-faceted mandates, combining legal and human rights traditions and imperatives. However, they diverge in their approach to evidence. This article argues that the prima facie approach developed over the Working Group on Arbitrary Detention's 30 years of jurisprudence provides an appropriately flexible and conceptually coherent means of accommodating combined human rights and the judicial mandates. Nonetheless, this approach requires lexiconic and taxonomical tightening, and clarification of its standard of proof. Comparing the approaches taken by other quasi-judicial bodies, this article builds the impetus towards inter-institutional consistency. It reviews proposals such as wholesale reversal of the burden of proof onto Governments. It highlights the drawbacks of that unilateral type of burden and the risks that it would introduce further uncertainty for parties to proceedings, may cause onerous difficulties for claimants, and would potentially flood the human rights institutions with unsubstantiated claims. [ABSTRACT FROM AUTHOR]

Aerial visuals play a central – and increasing – role in military operations, informing military decision-makers in real time. While adding relevant and time-sensitive information, these visuals construct an imperfect representation of people and spaces, placing additional burdens on decision-makers and creating a persuasive – yet misleading – virtual representation of the actual conditions on the ground. Based on interdisciplinary analysis of critical security studies, behavioural economics and international law literature, as well as rich data from US and Israeli military investigations into four military operations spanning from 2009 to 2021, this article identifies three types of challenges stemming from the mounting reliance on aerial visuals to inform military operations: technical challenges, relating to the technical capabilities and features of aerial vision technologies; cognitive challenges, relating to decision-making biases affecting human decision-makers; and human-technological challenges, relating to the human–machine interaction itself. The article suggests ways to mitigate these challenges, improve the application of the law of armed conflict, and protect people, animals and the environment during armed conflicts. [ABSTRACT FROM AUTHOR]

Being wrongfully convicted of a crime is arguably one of the most dreadful examples of injustice in any criminal justice system. This phenomenon has been recorded and studied in Western, predominantly adversarial, jurisdictions such as the United States of America, England-Wales, Canada, and Australia since the late twentieth century. Factors that have been found to contribute to wrongful convictions include eyewitness misidentification, faulty forensic evidence, prosecutorial misconduct, inadequate defence, and many more. While adversarial safeguards such as cross-examination and acquired expertise are thought to diminish the chances of wrongful convictions by revealing unreliable evidence, an increasing number of researchers are concerned that these safeguards have little effect on accurate fact-finding in criminal trials. In South Africa, where individual reports of wrongful convictions in the predominantly adversarial criminal justice system have been recorded in the media, no systems exist to track or investigate the injustice of false convictions. The objective of Part 1 of this article is to review the existing literature on eyewitness misidentification evidence as cause of wrongful convictions as well as those adversarial safeguards upon which criminal justice systems rely to identify errors in fact-finding. Parallels are drawn to the adversarial system as it functions in South Africa, and the possibility of misidentification as root and legal cause of wrongful convictions locally is considered. [ABSTRACT FROM AUTHOR]

International organizations (IOs) dispatch fact-finding missions to establish epistemic authority by objectively and impartially assessing contested facts. Despite this technocratic promise, they are often controversial and sometimes even fuel international disputes that challenge the epistemic authority of the dispatching organizations. Although the twenty-first century has witnessed a proliferation of United Nations (UN) commissions of inquiry, they have received surprisingly little attention in international relations (IR) scholarship. How can we explain this trend and the successes and failures of fact-finding missions, which sometimes even backfire on the IO authority? Drawing on IR theories of delegation, epistemic authority, and IO field operations as well as public international law scholarship on commissions of inquiry, this article develops an analytical framework for studying the delegation, implementation, and dissemination of fact-finding missions. It theorizes how and under what conditions international fact-finding missions close or widen credibility gaps and thus help to establish, maintain, or weaken the epistemic authority of IOs. The article illustrates this framework with a case study of the Ad Hoc Working Group on the Human Rights Situation in Chile, sent by the UN Commission on Human Rights in 1974 to investigate allegations of human rights violations and torture. The conclusion outlines a comparative research agenda on international fact-finding missions for IR that contributes to the study of knowledge production in IOs and the enforcement of international norms. [ABSTRACT FROM AUTHOR]

It is often believed that the common law adversarial process performs efficiently to ensure the truth comes out and that justice is served. However, this was not the case in R v Mullins-Johnson. This paper argues that the common law adversarial trial process can actually contribute to wrongful convictions if judicial passivity is strictly adhered to. If the trial judge could have learned about the unreliability of the Crown expert testimony through independent research, he could have intervened to avoid a wrongful conviction. [ABSTRACT FROM AUTHOR]

Article 370 of the Indian constitution granted the State of Jammu and Kashmir 'special status' in the Indian Union. It was read down in a unilateral move by the Indian government in 2019. The State was stripped of its statehood and split into two Union Territories. The whole event was carried out without the consent of the people. The State's political leadership was detained and an information blockade was imposed. The local media could not function. Kashmir became like a blackhole from which no information was allowed to escape. Several Indian fact-finding teams visited Kashmir during this period, as they did during previous uprisings, to reveal facts from the ground situation. This paper examines multiple reports produced by these teams and seeks to understand the values and concerns that animate them. It considers of immense significance the professional and personal engagement of the authors with the politics of Kashmir and examines whether, and how, their identity, citizenship or ideological inclinations hamper their ability to produce unbiased reports. In doing so, the paper argues that such partisan teams and their biased reports contribute to a decontextualised and hierarchical (re)production of knowledge about Kashmir and its people. [ABSTRACT FROM AUTHOR]

Taking as its focus the 1991 movie High Heels by Spanish film director Pedro Almodóvar, this article argues that the multi-layered narrative style of Almodóvar's films make them especially suited to the examination of present-day culture and society. High Heels is the story of a troubled mother–daughter relationship compounded with the subplot of a judge who is entrusted with the investigation of the murder of the daughter's husband. A judge by day, at night he performs as a drag artist in a gay bar (as well as occasionally slipping into other roles). The article contends that, rather than the two plots being in a hierarchical relationship, they are intertwined. Bringing her own biographical perspective as a former judge, Ruth Herz considers the significance of the Almodóvar's judge Dominguez's role as the one who navigates the intricate labyrinth of facts, feelings, and fantasies, and who mediates between the two plots. The unique method employed by Dominguez in his quest for the 'truth' challenges the deep-seated notion among the general public and in the judiciary itself of what judgecraft is. He demonstrates – albeit in a typically scandalous, parodic way – how the process of judging continues to remain enigmatic even under democracy, despite the claim of transparency and open courts. [ABSTRACT FROM AUTHOR]

Background: Medical institutions are required to report suspected cases of child abuse to administrative agencies, such as child guidance centers in Japan. It is left to the discretion of the medical institutions whether to notify the family of the child or the center. However, it is unclear what kinds of measures are being taken to ensure a robust policy of notification versus non-notification and how notifying the family will affect the child. Methods: An unregistered questionnaire survey on reporting suspected child abuse cases to child consultation centers and notifying families was conducted by mail across 518 pediatric specialist training facility hospitals designated by the Japanese Pediatric Society. Results: Responses were received from 323 facilities (62.4% response rate), of which 5 facilities were excluded because of incomplete responses. Therefore, in all, 318 facilities were included in the analysis. The results showed that 59.8% of the facilities had a policy of notifying the family, 33.7% said the decision varies from case to case, and 6.6% did not have a policy of notifying the family. The facilities that had a policy of either notifying or not notifying the family were less likely to experience problems than those with a policy of deciding on a case-by-case basis. The proportion of cases in which some problems occurred was higher in the cases where families were notified than in the cases where they were not, with 51.4% of the children experiencing worsening of relationships with family members. In the cases where the families were not notified, the children were twice as likely to experience further abuse than in cases where the families were notified. Conclusion: Problems arise in the case of both notification and non-notification. It is necessary to examine background factors and specific methods of notification in the cases where problems arise.

This article discusses the evidentiary issues that arise at the compensation phase of the proceedings in the International Court of Justice ('the Court'), with special reference to the intersection of the rules of evidence and the law of State responsibility concerning reparations. It identifies a sequence of interactions between the two sets of norms throughout the compensation phase and even the prior merits stage. Various notions and approaches indicated by the Court that fall into either of the two sets of rules, such as the reversal of the burden of proof, lowering the standards of proof, equitable considerations and the global sum, should thus be read in conjunction with each other and not in isolation. Such an interplay aims ultimately to bring about a financial outcome that may afford minimum satisfaction to both parties in a dispute, even at the sacrifice of the coherence of judicial reasoning to some extent. In particular, the trade-off between the questions of proof and the reduction of the amount of compensation is seen as a practical adjustment of the financial outcome that could otherwise be unacceptable for the responsible State in the situation of evidentiary uncertainties. The remedies brought to the injured party might be minimal, but an invented alternative to nothing, which could have been the case had the rules of evidence and compensation been ordinarily applied. [ABSTRACT FROM AUTHOR]

Background: Medical institutions are required to report suspected cases of child abuse to administrative agencies, such as child guidance centers in Japan. It is left to the discretion of the medical institutions whether to notify the family of the child or the center. However, it is unclear what kinds of measures are being taken to ensure a robust policy of notification versus non-notification and how notifying the family will affect the child. Methods: An unregistered questionnaire survey on reporting suspected child abuse cases to child consultation centers and notifying families was conducted by mail across 518 pediatric specialist training facility hospitals designated by the Japanese Pediatric Society. Results: Responses were received from 323 facilities (62.4% response rate), of which 5 facilities were excluded because of incomplete responses. Therefore, in all, 318 facilities were included in the analysis. The results showed that 59.8% of the facilities had a policy of notifying the family, 33.7% said the decision varies from case to case, and 6.6% did not have a policy of notifying the family. The facilities that had a policy of either notifying or not notifying the family were less likely to experience problems than those with a policy of deciding on a case-by-case basis. The proportion of cases in which some problems occurred was higher in the cases where families were notified than in the cases where they were not, with 51.4% of the children experiencing worsening of relationships with family members. In the cases where the families were not notified, the children were twice as likely to experience further abuse than in cases where the families were notified. Conclusion: Problems arise in the case of both notification and non-notification. It is necessary to examine background factors and specific methods of notification in the cases where problems arise. [ABSTRACT FROM AUTHOR]

This article examines the amendments of the Regulations and Rules of the International Centre for Settlement of Investment Disputes (ICSID) recently approved by the Administrative Council of ICSID. The amendments are of all regulations and rules for proceedings that ICSID has long been authorized to administer – ICSID Convention and Additional Facility conciliation and arbitration and fact-finding proceedings. As part of the amendments, ICSID has also issued a new set of mediation rules. For context, the article briefly recalls previous amendments of the Regulations and Rules before discussing highlights of the newly amended Regulations and Rules. A concluding section points out that the amendments, which respond to many criticisms of investor-State arbitration under investment treaties (ISDS), will generally apply to all ICSID ISDS arbitrations initiated on or after the effective date of the amendments (1 July 2022). [ABSTRACT FROM AUTHOR]

One of the most persistent questions in criminal evidence relates to the use of (unchallenged) expert evidence. What does it mean to accept or reject (unchallenged) expert evidence? To what extent can, and should, an expert enter jurisprudential territory? Is the traditional model of trial by jury viable in our complex world? In order to clarify these pressing questions, we will examine the evidential structure underpinning expert witness testimony. We will show that what we usually and, at the cost of oversimplification, call 'evidence', comprises three distinct questions: (i) What does the data show? (ii) What should we believe? (iii) What should we do? From this insight, a number of corollaries fall into place. First, although decisions have to be informed through reasoned inferential procedures, they cannot be reduced to scientific propositions. As a result, fact-finders do not need to cede their decision-making prerogative as some proponents of expert-driven decision-making suggest. Secondly, criminal liability is not a scientific conclusion. Rather, so our argument, it is an individualistic normative construction that involves an inferential leap which is not warranted by any scientific (i.e. general) proposition. For the rectitude of the criminal verdict (or indeed any legal decision) does not map logically onto the possible treatment of scientific findings, that is, acceptance/rejection. Thirdly, our clarification of this evidential structure, which we call coherent decisionalism, provides a conceptual framework to understand and stabilise case law on expert witness testimony. [ABSTRACT FROM AUTHOR]