Fact-Finding in Non-appearance before International Courts and Tribunals: A Review of the Tribunal's Practice in the South China Sea Arbitration

LIAO Shiping ； HAN Yuchen ； CHEN Jueyu ； HUANG Yuxin

《中华海洋法学评论》 41期 (2022/03) Pp. 93-127

摘要

International courts and tribunals are confronted with the complicated task of fact-finding due to the lack of clarification and assistance from the non-appearing party. In such proceedings, dispute settlement bodies have often adopted ＂the claim is well-founded in fact＂ as a fact-finding requirement, and some have even developed in practice the standard of ＂best available evidence＂ as a further elaboration of the aforesaid requirement. It follows from practice that this requirement needs to be implemented in a case-by-case context. In the absence of proof and cross-examination by the party not appearing before the court, dispute settlement bodies should be more prudent in dealing with the evidentiary materials in the case, particularly in examining whether the materials submitted by the party appearing before the court corroborate each other, as well as with those obtained by the dispute settlement body on its own initiative, and whether there are any contradictions.

關鍵字

Non-Appearance ； Standard of proof ； ICJ ； ITLOS ； South China Sea Arbitration