Bato'ora Ballong-Wen-Mewuda. Travels to discover the source of the Nile. Edinburgh: At the University Press, , p. Africa and Europe: from Roman times to national independence. Second edition. Afrika: von der Vorgeschichte bis zu den Staaten der Gegenwart. The overthrow of colonial slavery London: Verso, John William Blake ed.
Europeans in West Africa, documents to illustrate the nature and scope of Portuguese enterprise in West Africa, the abortive attempt of Castilians to create and empire there and the early English voyages to Barbary and Guinea. West Africa : quest for God and gold, London: Curzon Press, A. Adu Boahen ed. General history of Africa. VII: Africa under colonial domination Die grossen Reisesammlungen des Jahrhunderts und ihre Bedeutung. Heitz, Albert van Dantzig. Forts and castles of Ghana. Accra: Sedco Publishing, T. South Africa : a modern history.
Fourth edition. Basingstoke: Macmillan, J. A history of Africa. Third edition. London: Routledge, J. A history of West Africa: an introductory survey. Flint ed. The Cambridge history of Africa. Volume 5: From c. Mommsen and Ronald Robinson eds. A short history of Sierra Leone. London: Longman, Richard Gray ed. Volume 4: From c. The map of Africa by treaty. Foreign Office.
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Arbitral Awards, Used - AbeBooks
Hair, Adam Jones and Robin Law eds. London: The Hakluyt Society, P. Hair and Robin Law. Oxford: Oxford University Press, , p. See also: the following discussion of the rules developed in the jurisprudence of the WTO Appellate Body concerning the limits upon a panel's right to weigh the evidence: "In EC-Hormones , the Appellate Body stated that '[t]he duty to make an objective assessment of the facts is, among other things, an obligation to consider the evidence presented to a panel and to make factual findings on the basis of that evidence'.
Accordingly, the 'deliberate disregard of' or 'refusal to consider' evidence is incompatible with a panel's duty to make an objective assessment of the facts How a panel treats the evidence that is presented to it, including expert testimony, may affect the parties' substantive rights in a dispute as well as their rights to due process. A panel's choice not to discuss a piece of evidence that on its face appears to be favourable to the arguments of one of the parties might suggest bias or lack of even-handedness in the treatment of the evidence by the panel, even if in fact the panel is making an objective assessment of the facts The Appellate Body has, however, also clarified that, as the 'trier of facts', a panel enjoys a margin of discretion in the assessment of the facts, including the treatment of evidence…[a] panel enjoys a margin of discretion in assessing the value of and the weight to be ascribed to the evidence and that a panel is 'entitled, in the exercise of its discretion, to determine that certain elements of evidence should be accorded more weight than other elements'.
In principle the duty to approach the evidence without bias is also applicable to the deliberations of international commercial arbitral tribunals. Nevertheless, such principles should not be seen to nullify a tribunal's right to exclude evidence from the record for the various reasons set forth in art. On the other hand, the Tribunal sees no need to deal with and decide on objections regarding evidence which, in the Tribunal's judgment, is not relevant for it in deciding on the claim before it.
Two independent factors are considered by Arbitral Tribunals when assessing the weight that should be given to such evidence ' If a party, as was the case with Respondent, does not comply with its obligations, for instance by refusing to produce the requested documents and witnesses, the Arbitral Tribunal is authorized to draw adverse conclusions from the party's behavior.
Arbitral Awards, Used
The same applies when witnesses manifestly lack independence, as was the case with those produced by Respondent, [and] the second factor is whether direct evidence of fact is unavailable'. Prager and Joanna E. See also: the following consideration of "indirect" proof concerning a bribery claim by an ICC tribunal: "In the present case, bribery has not been proved beyond doubt. It is true that it is possible to prove something through indirect evidence and that Art.
However, it is necessary that a sufficient ensemble of indirect evidence be collected to allow the judge to base his decision on something more than likely facts, i. XIX, p. In fact, how else could it be explained that, during a period of three years, a company aiming at obtaining a major contract Such behaviour can only be logically explained if we admit that defendant tacitly approved of claimant's activity.
The consequence of this approval - which is not necessarily the validity of the contract - will be examined below. See further below.
The tribunal noted with respect to witness testimony certain inconsistencies with documentary records produced in the proceedings, but was not minded to reject the testimony as false. The tribunal did, however, take a more permissive standard in regard to the evidence, due to the general view that testimony may be accepted during a jurisdictional phase on face value, with greater scrutiny reserved for the merits phase.
In this procedural order a witness was to testify only to those matters that he or she had personally witnessed as the tribunal limited testimony by noting that the witness "was invited to state orally before the arbitrators the facts of which he had personal knowledge". This being said, hearsay evidence is admissible in international arbitration. See: generally comments to art.
While not necessarily endorsing this author's view on the classification of these concepts, Marossi provides an interesting consideration of the various aspects of the burden of proof question in, Ali Z.
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Hamilton et al. This burden of proof may be called procedural. The tribunal in this case was borrowing from Bin Cheng's formulation of this principle. Bin Cheng, supra n. See also: where another tribunal noted with approval the rule set forth in AAPL : "The Tribunal agrees with the standard articulated by the AAPL tribunal that, with regard to 'proof of individual allegations advanced by the parties in the course of proceedings, the burden of proof rests upon the party alleging the fact'.
See also: the decision by an ICC tribunal which followed this principle: "The burden of proof for the conclusion of a contract is on the party claiming rights out of the contract. Since the arbitration clause is also a contract, the same rules are applicable for the arbitration clause. Thus, in the case at hand the claimant must establish the conclusion of the alleged contracts and of an arbitration clause for each alleged contract.
XXIX, p. Accordingly the issue does not necessarily depend on the parties' role as a claimant or defendant. See: the ruling of an ICC tribunal, "Any facts that are favorable towards the position of the defendant must be proven by it. However, the ' actori ' is the party who alleges a fact, not necessarily always the party who instated the proceedings. It was the Respondent who, at one point during the proceedings in this Case, raised the defence that the Deed is a forgery. Specifically, the Respondent has contended that the Deed, dated 15 August , was in fact fabricated in Having made that factual allegation, the Respondent has the burden of proving it.
XI, p. See further: for the summary of the Swiss view on the matter: "in most cases, each party shall bear the burden of proof for the facts on which it is basing its case actori incumbit probatio. Mistelis ed. See also: the following position adopted by an ICC tribunal, as a classic example of where a party's failure to meet the burden of proof resulted in an adverse finding: "In view of these contradictions and of the fact that the loan agreement concluded with the bank was not produced, nor any bank statements concerning the amount of the debts of the Plaintiff towards the bank, during the period under scrutiny, the Arbitral Tribunal considers that it is impossible to take into account the interests claimed by the Plaintiff, which has not brought the necessary proof although the burden of proof laid on it.
See also: a decision of the High Court of Ireland approving this principle, "It was also submitted on behalf of the respondent that the Danish Arbitration Board had wrongly refused to consider the counterclaims of the respondent when making its award. I consider this submission is misconceived and also unsupported by the facts.
The award clearly indicated that the Board considered the respondent's counter claims, made in correspondence, but simply found that they were not proven in evidence. The burden of proof for any claim in an arbitration made by the respondent is obviously on that respondent. The Arbitration Board simply stated that the respondent had not proved the claims. This was the fact. There was no evidence before the Board. Therefore the claim could not be allowed. The principle of 'he who asserts must prove' is applicable. Furthermore, as is evident from the award, the written counterclaims were considered during the oral hearing as the applicant itself accepted two of.
International Dispute Settlement
XXXV, p. Dietmar W. I at para. XVIII, p. See: a similar formulation used by a well-experienced panel of arbitrators in an NAI arbitration: "In the Tribunal's view Claimant has done nothing more than articulate the usual burden of proof Standard, i.