Fact-Finding in Non-Appearance Before International Courts and Tribunals

Abstract

International courts and tribunals are confronted with the complicated task of fact-finding in instances of a respondent party’s non-appearance due to the lack of clarification and assistance from the non-appearing party. As a result, international bodies frequently face criticism for possible inaccuracy of fact-finding undertaken under conditions of incomplete stakeholder participation and information deficiencies. This paper examines the practice of various courts and tribunals in non-appearance cases and attempts to develop procedural rules applicable to these cases. It finds that consistency and corroboration of evidences submitted by the appearing party should be the focus of these procedures, and the usual preponderance of evidence test should be discarded in cases of non-appearance in order for international bodies to satisfy themselves that claims are well founded in fact. A pro-active approach to fact-finding may be helpful to the courts and tribunals in certain aspects, however such an approach may still fail to ensure accuracy of factual conclusions if the characterization of the underlying dispute is itself inaccurate, as the starting point for the soundness of the fact-finding.

Keywords: Non-Appearance, International Court of Justice, International Tribunal for the Law of the Sea, Standard of Proof, South China Sea Arbitration

JEL Classification: K33