PAIL Institute Publications

PAIL Institute Monograph Series

Evidence Before International Tribunals

Author(s): Sandifer, Durward V.

Hardcover - 519 pages (1975)
ISBN: 0-8139-0616-4; LC: 75-1242

Price: US $52.00

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About This Publication

Evidence Before International Tribunals has long been accepted as the standard reference on the law of evidence in international cases by scholars, lawyers, and the courts. Now Durwald V. Sandifer presents an inportant reassessment, restatement, and updating of this major work. The revision adds greatly to literature in the field of evidence, where information and guidance have been limited and disparate. It is unique in its comprehensive description and evaluation of the law and practice of all material pertaining to the law of evidence in international arbitration and adjudication. It is unique also in its comparative study of the Anglo-American and the Civil Law of Evidence, explaining the origin and patterns of the international rules which form these systems of laws.

The study is based on a searching examination of all available records in the field of evidence from the eighteenth century to the present. Every kind of international tribunal is consulted, including the International Court of Justice, international claims commissions, and national claims commissions such as the United States Foreign Claims Settlement Commission. Printed records are supplemented with an examination of the manuscript records in the Library of the Department of State and in the National Archives.

Despite the diversity of its sources, the research has led Sandifer to declare with confidence that "there is today a system of evidence to which authorities and tribunals can appeal to settle disputes." His study offers the most comprehensive statement of that system available to date.

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About The Author(s)

Durward V. Sandifer served in several positions at U.S. Department of State and the Foreign Service from 1934-60. He served as Secretary General and Chief Technical Expert, U.S. Delegation to the U. N. Conference, San Francisco, 1945; Dep. Director, Office of U. N. Affairs, 1947-48; Acting Director, Office of U. N. Affairs, 1949; Dep. Asst. Sec. of State for U. N. Affairs, 1949-54. Attended many U. N. Assemblies and other international conferences in various capacities for the State Department, 1944-52.

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Reviews

Arbitration Journal
This is undoubtedly one of the most omportant treatises on ointernational arbitration which has been published in the last few decades. Indeed, it would seem that no book exactly like the one here reviewed has ever been published anywhere.

University of Pennsylvania Law Review
The reviewer ventures the opinion that no lawyer charged with the presentation of an international case can afford to ignore this volume. For the moment it is the last word on the subject. The reviewer thinks that it will be a good word for years to come.

American Foreign Service Journal
Because of the great wealth of information . . . which he has made readily available in Evidence Before International Tribunals, that work should, and doubtless will, become one of the most important sources of an ultimate system of judicial procedure in international arbitration which will be generally recognized as effective and impartial in its operation.

Journal of Comparative Legislation and International law
The author has produced a full and workmanlike treatise in the best traditions of contemporary American legal scholarship.

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Availability

Evidence Before International Tribunals is available from:

William S. Hein & Co., Inc.
1285 Main Street
Buffalo, NY 14209

(716) 882-2600
(800) 828-7571 (toll free)
(716) 883-8100 (fax)
e-mail: mail@wshein.com
website: http://www.wshein.com/
Hein Item #: 306620

Evidence Before International Tribunals is also available from Amazon.com.

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Table of Contents

	Foreword by Philip C. Jessup			vii
	Preface			xiii
I.	The Nature and Sources of the Rules of Evidence			1
	Function and Nature of the Rules			1
	1	The Function of Evidence in Municipal and International Tribunals		1
	2	The Character of International Judicial Proceedings		4
	3	Consequent Nontechnical Character of the Rules of Evidence Generally Applied by International Tribunals		8
	4	Evaluation of Evidence		15
	5	Difficulties in Obtaining, Preparing, and Evaluating Evidence		22
	6	Amenability of International Tribunals to the Local Law of Evidence		29
	Sources of the Rules of Evidence			34
	7	The Creation of the Tribunal		34
	8	Rules in the Arbitral Agreement		36
	9	Rules of Procedure of the Tribunal		40
	10	Rules from Customary Law		44
II.	Order and Time of the Submission of Evidence			46
	Order of Submission			46
	11	Order of Submission		46
	Time of Submission			49
	12	During the Written Proceedings: With the Written Pleadings		49
	13	During the Written Proceedings: Rebuttal Evidence		54
	14	During the Written Proceedings: Later Submission of Evidence		55
	15	During the Written Proceedings: Later Submission of Evidence: The Palmas Island Case		60
	16	During the Oral Proceedings: General Practice		69
	17	During the Oral Proceedings: Practice in the International Court of Justice and the Permanent Court of International Justice		75
	18	Later Submission: Extension of Time for Submission		86
	19	Later Submission: After the Close of the Proceedings		90
	20	Conclusions		92
III.	The Production of Evidence			95
	The Right of the Parties			95
	21	Communication of Evidence		95
	22	Inspection and Discovery of Documents		97
	23	Portions or Extracts of Documents		100
	24	Awards Based upon Evidence Produced		105
	25	Use of Evidence Produced in Other Cases		109
	Obligations of the Parties			112
	26	General Nature of the Obligation to Produce Evidence		112
	27	Notice of Evidence		118
	28	Responsibility of States for Evidence Produced		121
	29	Burden of Proof		123
	30	Burden of Proof: The Permanent Court of International Justice and the International Court of Justice		132
	31	Presumptions and the Burden of Proof		141
	32	Adverse Inference from Nonproduction of Evidence		147
	The Authority of the Tribunal			154
	33	The Authority to Require the Production of Evidence		154
	34	The Authority to Remove Evidence from the Record		163
	35	The Authority to Make Evidence Accessible to Third Parties and the Public		166
	36	Judgment on a Prima Facie Case		169
	37	Judgment by Default		174
IV.	The Admission of Evidence			176
	In General			176
	38	Nature of the Rules of Admission		176
	39	General Principles Controlling the Admission of Evidence		179
	40	Certain General Principles Concerning Refusal to Admit Evidence		185
	Provisions in the Arbitral Agreement			190
	41	Evidence to Be Considered		190
	42	Evidence Submitted by, or on Behalf of, Governments		192
V.	Documentary Evidence			197
	Importance of Documentary Evidence			197
	43	Extent of Use		197
	The Best Evidence Rule			202
	44	General Principles		202
	45	Production of Original Documents		205
	46	Resort to Secondary Evidence		209
	47	Proof of Nationality		218
	48	Nationality Through Naturalization		219
	49	Nationality Through Birth		224
	50	Maps as Evidence		229
	Ex Parte Evidence			240
	51	Ex Parte Evidence Not Under Oath		240
	52	Affidavits in Anglo-American and Civil Law Procedure: In General		243
	53	Affidavits in Anglo-American and Civil Law Procedure: Procedure in the Taking of Affidavits and Depositions		244
	54	Affidavits in Anglo-American and Civil Law Procedure: Reasons for Use of Affidavits		247
	55	Affidavits in Anglo-American and Civil Law Procedure: Arguments Concerning Admission and Evaluation		251
	56	Affidavits in Anglo-American and Civil Law Procedure: Practice of Tribunals with Respect to Admission		257
	57	Affidavits in Anglo-American and Civil Law Procedure: Probative Value Determined by Tribunal		261
	58	Affidavits in Anglo-American and Civil Law Procedure: Conclusions		264
	Authentication and Translations			269
	59	General Principles of Authentication		269
	60	Certified Copies of Original Documents		272
	61	Method of Authentication: In General		274
	62	Method of Authentication: Public Documents		275
	63	Method of Authentication: Private Documents		277
	64	Method of Authentication: Officially Printed Records		278
	65	Method of Authentication: Literal Reproductions		279
	66	Method of Authentication: The International Court of Justice		279
	67	Conclusiveness and Effect of Authentication		282
	68	Translations		284
VI.	Testimonial Evidence			288
	In General			288
	69	Use in International Judicial Procedure		288
	Witnesses			293
	70	Power of International Tribunals to Compel Attendance		293
	71	Punishment for Perjury		300
	72	Payment of Witnesses		303
	73	Procedure in Examination		303
	74	Taking of Depositions		312
	75	Correction and Approval of Record of Testimony by Witness		318
	76	Credibility and Impeachment		322
	Experts and Expert Inquiries			325
	77	General Practice		325
	78	General Procedure in the International Court of Justice: Practice in the Permanent Court		330
	79	Practice in the International Court of Justice		335
	80	Visit to the Place (Descente sur les Lieux)		343
VII.	Evidence Subject to Special Rules of Admission and Evaluation			349
	Evidence of Interested Persons			349
	81	In General		349
	82	Rule of the British-Mexican Claims Commission of 1926		351
	83	Cases Attaching Slight Value to Claimant's Evidence		355
	84	Awards Based on Evidence of Interested Parties		357
	85	Interrogation of Claimants		361
	86	Conclusions		364
	Hearsay Evidence			366
	87	In General		366
	88	Reception in International Proceedings		368
	89	Maps as Hearsay		372
	90	Privileged Evidence: Evidence of Confidential Character		375
VIII.	Propositions Not Requiring Proof			382
	Judicial Notice			382
	91	In General		382
	92	Notorious Facts		383
	93	Judicial Facts		390
	94	Conclusions		396
	Sovereign Assertions			397
	95	Assertions of Fact by a Government		397
IX.	Rehearings and Revision on the Basis of Newly Discovered or Fraudulent Evidence			403
	In General			403
	96	Nature of Rehearing and Revision		403
	Rehearings			404
	97	General Principles		404
	98	Newly Discovered Evidence: In General		407
	99	Newly Discovered Evidence: United States-German Mixed Claims Commission of 1922		408
	100	Newly Discovered Evidence: United States-Mexican Mixed Claims Commission of 1868		414
	101	Newly Discovered Evidence: The United States Foreign Claims Settlement Commission		416
	102	Newly Discovered Evidence: Other Cases		420
	103	Newly Discovered Evidence: Conclusions		423
	104	Fraud: Controlling Principles		426
	105	Fraud: Conventional Provisions		428
	106	Fraud: The Weil and La Abra Silver Mining Co. Cases		430
	107	Fraud: The Sabotage Claims		435
	108	Fraud: The Gardiner Case		439
	109	Fraud: Conclusions		440
	Revision			443
	110	Bilateral Treaties		443
	111	Provisions in Multilateral Treaties		444
	112	General Cases		449
	113	Decisions of the Mixed Arbitral Tribunals		452
	114	Conclusions		454
X.	Conclusions			457
	115	General Conclusions		457
	116	The International Court of Justice		463
	117	Influence of Anglo-American and Civil Law: In General		468
	Bibliography and Abbreviations			475
	Index			501