Introductory Remarks by Rosalyn Higgins
Higgins, Rosalyn, Proceedings of the Annual Meeting-American Society of International Law
In this panel, we will be talking about fact-finding in inter-state disputes, not fact-finding in the context of international criminal cases nor state-private party arbitrations. But that still leaves a great deal within the field of inter-state disputes. As international lawyers, especially when we are starting out, we think a lot about the law and perhaps too little--whether as academics, members of the bar, or new arrivals on the bench--about procedure and the finding of facts.
The finding of facts in an authoritative and persuasive way is a central part of international judicial decisionmaking, and it raises many issues. It is important also---and this is our theme for this morning--in international civil litigation. Although each international court and arbitral tribunal necessarily differs, the issues relating to fact-finding are in a sense common, but play out differently in each of these fora. The obvious example is burden of proof. There is also standard of proof as well as the question of what is and is not reliable in terms of evidence. There are questions about when to use experts, when to have witnesses, and how those witnesses are to be examined.
We have a great panel this morning. Lisa Grosh is the Deputy Assistant Legal Adviser of the Office for International Claims and Investment Disputes in the State Department's Office of the Legal Adviser. That role entails overseeing all aspects of the United States's handling of international claims, investment disputes of U.S. nationals against foreign governments, and U.S. defense before the Iran-U.S. Claims Tribunal and NAFTA tribunals. Ms. Grosh has argued many claims before the Iran-U.S. Claims Tribunal, has participated actively in the U.S. defense in Chapter 11 cases, and has also been involved in the settlement of terrorist-related claims with the governments of Libya and Iraq.
Bruno Simma is now the William Cook Global Professor of Law. He recently retired from the ICJ after a 9-year term. He has for a long time been a professor at Munich and a joint Munich-Ann Arbor professor. …