Professional Documents
Culture Documents
customary law.1
The CHD manifests the principle that one cannot seek equitable relief or assert an equitable
defense if that party has violated an equitable principle, such as good faith.2 Conduct in violation
of the CHD need not therefore be illegal.3 A party seeking to obtain an equitable remedy may be
denied on the grounds of unclean hands if her conduct violated principles of law, ethics, equity, or
morality, even though the claimant would have been entitled to the remedy absent her prior
wrongdoing.4
Yukos v Russian Federation was not persuaded that there exists a general principle of law
recognized by civilized nations, within the meaning of Article 38(1)(c) of the ICJ Statute, that
would bar an investor from making a claim before a tribunal under an investment treaty because it
From Renac :
1
Andorno, R. (2007). The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethics6
2
BLACKS LAW DICTIONARY 268 (8th ed. 2004)
3
Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 815 (
4
Deweese v. Reinhard, 165 U.S. 386, 390 (1897) (if the conduct of the plaintiff be offensive to the dictates of natural
justice, then, whatever may be the rights he possesses and whatever use he may make of them in a court of law, he
will be held remediless in a court of equity.); Miller v. Beneficial Mgmt. Corp., 855 F. Supp. 691, 712713 (D.N.J.
1994) (Whenever a party who seeks to set the judicial machinery in motion and obtain some equitable remedy has
violated conscience or good faith, or other equitable principle in his prior conduct with reference to the subject in
issue, the doors of equity will be shut against him [or her] notwithstanding the defendants conduct has been such that
in the absence of the circumstances supporting the maxim, equity might have awarded relief.) (citations omitted).
5
1|Page
these forms of free chlorine are convenient, relatively safe to handle, inexpensive and easy to dose.6
produce chlorate and chlorite ions. As the solution ages and the available chlorine concentration
decreases, it is necessary to dose more product to achieve the desired residual chlorine
concentration, with a consequent increase in the amounts of chlorate and chlorite added to the
treated water.7
:CAUSATION:
Alternative causation refers to cases where several acts by several authors could have led to the
damage, however it remains unclear which of the acts was actually decisive in bringing about a
certain result. These are cases where, even if the tortfeasors had acted lawfully, the victim would
have suffered similar harm.147 Additional (or competitive) causation refers to cases where several
acts have caused an injury, while one act would have sufficed to bring about the result.148 Such
acts are each sufficient causes in the legal sense and thus distinguishable from circumstances
Another approach is to establish causation on the basis of a contribution to the problem from a
specific actor, and leave the issue of how much of the damage might have been caused by this
6
http://apps.who.int/iris/bitstream/10665/44584/1/9789241548151_eng.pdf page 141
7
http://apps.who.int/iris/bitstream/10665/44584/1/9789241548151_eng.pdf page 188
2|Page
This rule was developed especially to overcome evidentiary problems in determining
causation.158
While there has not been an international award dealing in-depth with this issue even the Trail
Smelter case does not provide insights the ILC accepted that an unlawful act might not be the
exclusive cause of an outcome, and assumed that establishing causation would be possible if the
State in question played not the exclusive, but a decisive role in causing the injury.162
Equivalence Theory (see above). This theory declares every condition or occasion a cause for a
particular result. The equivalence theory is not supported in many legal systems, but it is often
used as a first step in the determination of causation. Indeed, all greenhouse gas emissions are have
the same potential for creating the ensuing problem of anthropogenic climate change.
3 In common law countries, while proof on the balance of probabilities might suffice in general,
the court must be convinced of a fact if it is to base a judgment on it (also referred to as the more-
this threshold could be met, plaintiffs were entitled to full compensation.176 It is difficult to
ascertain a required quantum of proof on the basis of the existing jurisprudence of international
tribunals and courts,177 but there is no evidence that full proof would be required
In Corfu Channel, circumstantial evidence was also explicitly allowed and in Trail Smelter the
tribunal did not insist on absolute certainty of proof, either. Naturally, the quantum of proof
required might differ from forum to forum. As Cheng shows, tribunals exercise complete freedom
to admit and evaluate evidence so as to arrive at the moral conviction of the truth of the whole
case179
3|Page
This implies that even if proving causation in a specific case is difficult, the probability that an
activity will lead to some kind of impact would allow the court to link the activity to the damage.
In a case of water pollution the German High Court for example stated that as long as a particular
substance was generally capable of causing the relevant damage in conjunction with other
the issue of concurrent causes. Concurrent causes are conditions for an injury which are not the
result of internationally wrongful acts- from Renac jo control ni kar paye virus ko niklne se like
drainage by Aves.
the ILCs report assist in answering this question. In particular, the ILC concludes that
international practice and the decisions of international tribunals do not support the reduction or
attenuation of reparation for concurrent causes, except in the cases of contributory fault. 189
This is comparable to the common law principle of nuisance where the defendant is responsible
for the nuisance as a whole, regardless of whether or not he created it, once he knows or should
have known of its existence and fails to take reasonable precautions to abate it.192
4|Page