Chapter 19 looks at two landmark decisions that were issued after the submission of the full manuscript of this book for publication: the Advisory Opinion of the International Tribunal for the Law of the Sea on climate change and marine protection, and the judgment of the European Court of Human Rights in Verein KlimaSeniorinnen Schweiz and Others v Switzerland. The authors situate these decisions within the broader context of climate litigation, examining their implications for future cases and drawing connections to the themes explored in other chapters. They demonstrate how these decisions both reflect and advance emerging best practice in climate jurisprudence, potentially inspiring further innovation based on science and rigorous legal reasoning.

Chapter 5 on Admissibility delves into the factors determining whether a climate case can be heard in court. It presents a clear understanding of the criteria for admissibility and their potential implications on the trajectory of climate litigation. The chapter also delves into the interplay between domestic and international legal rules and norms and their influence on the criteria for admissibility. The author’s analysis reveals that a restrictive interpretation of admissibility criteria can present formidable access to justice barriers, particularly for those most impacted by climate change. In light of these challenges, the author’s distillation of emerging best practice highlights instances where courts and quasi-judicial bodies have interpreted admissibility criteria to ensure access to justice. Specifically, the chapter highlights cases where these bodies have considered human rights and justice imperatives in their admissibility decisions. These decisions highlight the potential for an inclusive and equitable approach to climate litigation, one that aligns with the global nature of the climate crisis and the urgent need for climate justice.

This title delves into the mechanisms and processes of international human rights litigation, focusing on the various judicial and quasi-judicial bodies that adjudicate human rights complaints. It examines the diversity of international complaints mechanisms, including regional human rights courts, such as the European Court of Human Rights, Inter-American Court of Human Rights, and African Court on Human and Peoples’ Rights, as well as nonjudicial bodies such as the Human Rights Committee and other treaty bodies. The section discusses the conditions of admissibility for international complaints, the procedures for examining claims, and the standards of proof and evidence. It also explores the role of provisional measures in protecting human rights during litigation and the challenges in enforcing international human rights decisions. By providing insights into the litigation process, this title highlights the importance of access to justice and the role of international bodies in holding states accountable for human rights violations.

Accession of the EU to the ECHR is again a realistic prospect after the 46 + 1 Group reached a deal in March 2023. This chapter answers the question as to what the potential impact of EU accession to the ECHR is from the perspective of fundamental rights accountability and effective judicial protection vis-à-vis the EU. This chapter discusses the added value of accession showing how it fills two protection gaps while also contributing to coherence and legal certainty. It argues that actual substantive effects depend on the way in which the ECtHR will apply its case law vis-à-vis the EU, such as the margin of appreciation, positive obligations or locus standi, and access to justice. The second part of the chapter focuses on the procedural practicalities, including admissibility, the co-respondent mechanism, and the prior involvement procedure. The third part analyses how accession could remedy the gaps in judicial protection in the Common Foreign and Security Policy.

This chapter describes: the creation of the ICC; its main features (such as its jurisdiction and its rules for selecting cases); opposition and criticisms; and a brief assessment of its work, including its controversial and sometimes disappointing early efforts, and the challenges that the Court confronts. The chapter discusses the Court’s jurisdiction – including personal and territorial jurisdiction, temporal jurisdiction, and subject matter jurisdiction. It discusses the ‘trigger mechanisms’: State Party referrals (including self-referrals), Security Council referrals, and initiation by the Prosecutor. It explains preliminary examination, investigation, and prosecution, as well as the selection criteria of admissibility (complementarity and gravity), and the interests of justice. It discusses opposition to the ICC, including the criticisms from the United States and the African Union, as well as key developments, such as US attacks on the ICC and threats of withdrawal from the African Union. The chapter reviews the Court’s record, including problems of collapsed cases, slow proceedings, the early focus on Africa, and accusations of selectivity and bias, as well as recent indications of progress.

In the landmark case Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), the Supreme Court of the United States articulated the admissibility standard for expert evidence. In jurisdictions that have adopted the Daubert standard, trial court judges must make difficult decisions regarding the admissibility of proffered expert evidence. Although all federal courts and nearly all state courts use the Daubert standard, we know little about how judges fulfill their gatekeeping role when making admissibility decisions. This chapter reviews the empirical and theoretical considerations regarding how judges in Daubert jurisdictions determine which proffered expert evidence should be admitted. After reviewing the standards governing the admissibility of expert testimony, which includes a discussion of the Federal Rules of Evidence, Daubert, and related cases, the chapter provides a discussion of each Daubert criterion, including the available evidence relating to judges’ understanding of those criteria. It then discusses the heuristics and biases that affect judicial decision-making. The chapter concludes with a discussion of implications for practice and research.

Complaints procedures offer a unique opportunity for individuals and groups to have claims of human rights violations considered and their rights vindicated in a judicial or quasi-judicial procedure. On the one hand, for non-governmental organisations (NGOs) and human rights lawyers, complaints procedures are an important avenue to pursue strategic objectives, in addition to supporting victims in individual cases. States, on the other hand, may find themselves having to defend allegations of specific or systemic violations. Ideally, complaints procedures act as a mirror that provides an opportunity for states to bring their practices into conformity with the respective treaty. In practice, however, states often view unfavourable decisions as unwarranted criticism, which may create difficulties at the implementation stage. The treaty bodies themselves are in theory neutral arbiters that apply the treaty provisions and rules of procedures. However, inevitably, their position as bodies created by states, and relying on states’ cooperation on the one hand and seeking the effective protection of human rights on the other, raises a host of challenges in actual practice.

This chapter discusses how international courts operate, and how their jurisdiction is dependent on consent of states. It goes systematically through notions of jurisdiction, admissibility, interim measures, and compensation, ending with a discussion of advisory opinions and the possibilities for judicial review

The clinical diagnostic process invokes unvalidated general-causation theory (shaking) as an explanation for clinical findings in infants. These medical findings (subdural haemorrhage, retinal haemorrhage, and encephalopathy) are non-specific and develop in natural diseases and accidents. Yet child protection teams associate these findings with abuse. Such ‘diagnosis’ of abuse, triggers social service and law enforcement intervention. Outside the clinical system, which errs on the side of child safety, the SBS/AHT general-causation theories have been challenged. Biomechanical, neuropathological, and forensic pathology research disputes the validity of the shaking theory. Medical ethicists and epidemiologists question the clinical reliance upon data and studies limited by circular reasoning and case selection bias. While ‘child abuse’ may be a ‘valid diagnosis’ for triggering social service intervention, it is not a scientifically sound diagnosis. Lacking foundational validity and support in the relevant scientific fields, SBS/AHT lacks reliability and general acceptance. Expert opinion of SBS/AHT general causation theory is inadmissible under a Daubert or Frye analysis.

The orthodox view of shaken baby syndrome (SBS) has been predominant amongst the medical and forensic communities for decades, over which time scores of accusations of child abuse have been made based on standard diagnostic methods, which have been scientifically verified. Convictions for murder, manslaughter and child homicide have resulted in jail sentences of up to 35 years, whilst actions taken through family courts have resulted in removal of children. We discuss how belief in SBS has been systematically incorporated into Australian medical, forensic, judicial, policing, and social service institutions. We also highlight some important challenges that have been made to the orthodox views in Australia, despite the ongoing general adoption of the orthodoxy.

Arbitrators derive their jurisdiction from the agreement of the parties. The underlying contractual basis of their jurisdiction and the supervisory powers of the courts over arbitrator’s jurisdictions raises several issues which are examined in this chapter.

The first part of the paper briefly examines the principle of competence-competence and its ramifications on various matters, such as who has, or should have, priority to rule on jurisdiction (the courts or the tribunals) and what should be the appropriate level of scrutiny by the supervising courts.

The second part examines which issues are to be regarded as ‘jurisdictional’. A broader or narrower understanding of the term will reflect on the scope of the courts’ review.

The third part examines who and when is to rule on jurisdiction and the various scenarios that can be triggered depending on how the jurisdictional review is initiated. Prior to the constitution of the tribunal the matter can only be brought before the court. Once the tribunal is constituted, the issue of jurisdiction can be brought both before the court and before the tribunal, and the court may be called upon to review tribunal’s findings. Post-award jurisdictional review can be triggered both in the set-aside and recognition proceedings. Issues of particular importance in this regard are standard of review to be used by the courts and whether the courts should be entrusted to review negative jurisdictional rulings of the tribunals.

The final part of this chapter discusses anti-suit and anti-arbitration injunctions and their perceived pros and cons, form and legal basis.

The negative effect doctrine discussed in this chapter deals with when, if ever, a state court will stay proceedings before it and refer disputants to the arbitrators for them to decide, in the first instance, whether an arbitration agreement between the parties (i) exists, (ii) is valid, and (iii) has a scope that covers the dispute in question. An affirmative answer on each of these points would mean that the dispute’s merits must be decided in arbitration. Thus, the negative effect issue concerns whether a decision on these three jurisdiction sub-issues should be decided with finality by the court itself at the outset, or, in the first instance, by the arbitrators themselves, with possible court review on jurisdiction delayed until later.The chapter discusses the dramatically different approaches to the negative effect issue followed in several leading arbitral jurisdictions: France, Germany, the U.S., Switzerland, the U.K., and Canada (Quebec).It also discusses the underlying policy issues at stake in the different national approaches to the doctrine.In conclusion the chapter offer’s the author’s view of a preferred approach to the negative effect issue.

Evidence – its marshalling, disclosure and presentation – lies at the heart of many, if not most, international arbitration proceedings. Yet, perhaps more than any other aspect of arbitral practice, evidentiary issues lay bare the significant divergences between the common and civil law traditions. As result, evidentiary questions can sometimes be among the most contentious that arise in an international arbitration, particularly when a dispute involves parties and/or counsel from different sides of the common law/civil law divide.In this chapter, we outline the process by which evidence is used in international arbitration and highlight some particularly thorny issues that can arise, including in relation to the document disclosure process, the admissibility of evidence and the use of evidence at an evidentiary hearing.It is important that parties and counsel consider these evidentiary issues carefully – and early in the arbitral process. Although every tribunal is different, international arbitration is fundamentally party-driven.Parties should therefore be proactive in fostering an efficient, effective, and fair process as it relates to the gathering, production and use of evidence in an international arbitration proceeding.

A decision which does not respect jurisdictional limits may be annulled by a controlling authority. But if there is no issue as to jurisdiction, then any issue as to admissibility is an objection to the claim (for example its prematurity or – at the other extreme – its staleness) and not to the forum. It follows that determinations with respect to should ordinarily be final and non-renewable. Once it is established that the parties have consented to the jurisdiction of a particular court or tribunal, there is a powerful policy reason – given the multiplicity of for a which might otherwise come into play internationally, with incompatible outcomes – to recognize its authority to dispose conclusively of other threshold issues.