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4.4. Evidentiary Privileges in International Courts and Tribunals

Wednesday, May 15
09:30 - 11:30

Hall #3, General Staff Building (6-8, Dvortsovaya sq.)


There is no unified approach towards the issue of evidence within the system of international courts and tribunals. As a result, courts and tribunals frequently do not have clear rules on the taking of evidence. In practice, judicial bodies have developed specific solutions for some matters. Nevertheless, such methods and approaches may vary on a case-by-case basis. In these circumstances, legal certainty, including the clarity of procedural rights and obligations of the parties as well as of the court’s role in the taking of evidence, may not be provided and ensured.

One of the results is that international courts and tribunals frequently find that their attempts to resolve some factual disputes are hindered or even frustrated by a party’s failure to produce evidence. As such, one of the ways in which a party may prevent the production of evidence is by refusing to disclose it on the grounds of privilege. As a result, the following questions may arise: (1) means of a court or tribunal to ensure the delivery of evidence by the parties; (2) non-disclosure of evidence and good faith (e.g., M/V “Norstar” case, ITLOS); (3) non-disclosure and the burden of proof; (4) non-disclosure and duty to cooperate; (5) refusal to produce evidence and adverse inferences (e.g., the Corfu Channel and the Bosnian Genocide cases, ICJ).


Roman Khodykin

Visiting Professor of the Centre for Commercial Law Studies, Queen Mary University of London


Tullio Rodolfo Treves

Honorary Professor of International Law at the State University of Milano, Judge of the International Tribunal for the Law of the Sea (1996–2011)

Antoine Ollivier

Legal Officer, Registry of the International Court of Justice

Marie-Benedicte Dembour

Professor of Human Rights Law, University of Brighton

Louise Wichmann Madsen

Dispute Settlement Lawyer at the Legal Affairs Division, World Trade Organization

Sergey Usoskin

External Expert, International and Comparative Law Research Center

* The Programme may be subject to change