Journal of International Dispute Settlement

Senogles, Geoffrey

2018 Journal of International Dispute Settlement

doi: 10.1093/jnlids/idy008

Abstract This article, written from the perspective of an accountant with broad experience as an expert witness, discusses the relative merits of the perceived adversarial nature of expert evidence. The article first identifies some advantages and disadvantages of the process whereby two expert witnesses can be perceived to take up positions seen by the tribunal as polar opposites. This article then provides commentary on some of the common ways in which expert evidence is presently communicated to a tribunal. The concluding commentary is that more thought could be given before an expert takes a position that serves the tribunal, but only somewhat as an afterthought—but whose principal target audience can be the opposing expert witness. To a lawyer involved in international arbitration, it could be seen as being the mainstream procedure that pitting one [expert] witness in direct conflict with another is the way to deliver quality, reliable opinion evidence for use by the tribunal. The rationale for this established norm could be that, opinion evidence forged in such a crucible, is seen to have been subjected to ‘stress testing’ under the spotlight in the crucible of exchanged written reports and oral cross-examination in the hearing room. In my view, this raises the supplementary question: is this ‘expert versus expert’ methodology, really the optimum way in which to deliver sound, reliable opinion evidence on technical matters for use by the arbitral tribunal in making their findings? In the words of an anonymous, but very well-known, arbitrator—albeit the following quote is paraphrased and is translated from the arbitrator’s mother tongue French for the purposes of this article, the gist of the comment was: ‘I find it completely annoying when I have two quantum experts sitting in front of me, each presenting widely – indeed wildly - divergent numbers and both being equally dogmatic about their own number. This is not helpful to us as members of the tribunal.’ The aim of this deliberately brief article is to provide some views from an accountant who has sat in the crucible approximately 40 times in legal proceedings in various contexts; international arbitration (treaty and commercial), High Court litigation, Iran–US Claims Tribunal and the Court of Arbitration for Sport. As is normal, other individuals will have differing experience and will have differing views. This short article is a personal view, based on personal experiences. As with most propositions, being open-minded, there are factors to be found both for and against this proposition, one of the themes of the symposium held in April. 1. ADVANTAGES Stress-testing of opinion evidence: The adversarial principle creates the obligation for each party’s expert witness to be required to not only present but also to justify and support their opinion. In the interests of due process, this obligation must surely be seen as reasonable. For some perspective on this, if we assume that we do away with the exchanges and ability to respond and rebut the other party’s opinion or evidence, then this would allow potentially unsound or inaccurate evidence to be relied on by the tribunal. Such evidence would, therefore, remain unchallenged by way of questioning by the opposing party’s legal advocates or via their expert witness’ reports. It is commonplace for the cross-examiner of an expert witness to seek guidance on relevant technical matters from their client’s expert witness. This guidance can take the form of general comments of potential weak and strong points identified in an expert witness, all the way to being heavily involved in assisting in drafting cross-examination questions. Whichever end of this spectrum is deemed appropriate in each case, the aim is the same—to produce a well-informed basis for the advocate to choose their own cross-examination theory and plan. Technical integrity of eventual award: A large part of the rationale for subjecting each witness (whether fact or expert) to cross-examination is to seek to ensure that the tribunal only bases their findings on demonstrably reliable evidence. This rationale serves equally to justify the cut and thrust, typically polite but occasionally emotive, that takes place in exchanges between professionals engaged as expert witnesses. When two expert witnesses are seen by the tribunal, and are seen defending their opinion and evidence when ‘under fire’ during cross-examination, this may be an influencing factor in the relative probative weights given by tribunal members to opinion of each witness. Forgive me, but having not sat as an arbitrator, I am not qualified to give a personal view on just how influential the performance and demeanour of a witness is in the perception of a tribunal. That issue is outside my scope of expertise. 2. DISADVANTAGES Ignoring their primary function: The adversarial principle can, in some rare instances, become the apparent primary focus of an expert witness. This is, of course, counter to the principal role as expected by the tribunal which is to assist the tribunal in their decision-making. The manifestation of such a distortion of the expert witness’ role can take the form of one expert’s report placing more importance on criticizing the other expert evidence, without also taking the opportunity to present support for their own evidence (whether such support could take the form of academic papers, industry technical standard practice, relevant accounting records or other documentation). Occasionally, some experts can seem to enjoy the ‘fight’, the intellectual combat, just a bit too much. In doing so, my personal view is that this is of no utility or interest to the tribunal—and hence neither is the practice useful to the parties. Entrenched positions: In some [rare] circumstances, certain expert witnesses are seen to be dogmatic in their opinions; unwilling to concede a point made, even in the face of overwhelming logic or contradictory evidence presented. Such attitudes and demeanour, I suggest, are typically easily identified by experienced, vigilant and intelligent tribunal members. In such circumstances, it is unclear what positive impression or utility a dogmatic expert believes can be gained by stubbornly refusing to simply accept a point that is undeniably clear to everyone else in the hearing room—even to the educated lay person. It can happen that two expert witnesses engage in a written game of ping pong, or even of boxing; with each seeking to ‘win’ the zero-sum game that they believe is all important. The siege mentality that can overwhelm an individual when they feel under pressure or ‘under fire’ is a human response—it can be a reflex reaction aimed at self-protection. I can say this from personal experience, but can also draw attention to the phrase ‘self-protection’ which, I suggest, belies the inappropriate reasoning behind this behaviour. The reason for an expert witness to give evidence is, or should be, to help form a proper legal decision and hence award. The purpose is not, or should not be, to cover the expert witness in glory or to insulate the expert witness from having to agree when any reasonable person really should simply … agree. When the evidence becomes mostly focused on the expert’s ego, then that, in my personal view, is a distortion of the role. It can be extremely powerful and refreshing for an expert witness to simply concede an incontrovertible point when made in cross-examination. To make a concession in these circumstances, can require a great deal of confidence and self-assuredness as a personality trait. At the time, under high-pressure cross-examination it can be ‘easier’ to stick to your guns and maintain an untenable position. On occasion, with the luxury of hindsight, an open-minded witness can see that it would ultimately have been more credible to simply concede and move on rather than to choose to dig a deeper hole. Ultimately, to be seen as credible and reasonable may be more valuable to the expert witness than to be seen as unshakeable in defending their stated position. 3. EXISTING OPTIONS AVAILABLE TO THE TRIBUNAL Several methods are available to a tribunal in relation to the communication and then the testing of opinion evidence of the parties’ expert witnesses. I briefly discuss some of the common methods below. Exchange of written reports: This is the core of the expert witness evidentiary process and is most commonly used in my experience. Little needs to be said on this topic that has not already been said by professionals better qualified than myself. An observation that can be suggested, however, is that sequential exchange of reports seems to better serve the tribunal’s need for testing of opinions expressed, rather than the alternative timing option, that of simultaneous exchange of reports. In my experience, simultaneous exchanges of reports by experts appointed by the two parties can lead to the situation where the tribunal is presented with reports with very little in common—in terms of methodologies and/or assumptions adopted or addressed. Examination-in-chief: This is increasingly taking the form of a set piece presentation by each expert witness in front of the tribunal; often using a deck of PowerPoint slides provided on screen and also printed for the bundle. From the perspective of an expert, it can be extremely welcome to be provided with a space of 20–40 minutes in which to communicate your views of, and on, your key points from your own evidence. The term ‘space’ is used here since this presentation is typically conducted without interruption by substantive questions from the other party’s advocate or the tribunal. Of course, questions or objections on procedural issues arising, if any, cannot be ignored and must be addressed. The key objective here is to communicate with clarity all of the key points. In my view, it can sometimes be the best option to leave out the minutiae or the highly technical detail underpinning the opinion. It can be more valuable ultimately to make the key points, and to make them robustly and with clarity, without having to rely on the minutiae to carry the day. A presentation made in place of examination-in-chief should not contain new evidence or opinion, but rather should merely present, and refer to, the witness’ written reports already submitted to the tribunal. Cross-examination: This is often the primary manifestation of the adversarial method; which of course, relies more on the common law procedural norms. It is in cross-examination when an expert witness is required to deal with questions and lines of questions that are deliberately intended to unbalance, surprise or provoke. This jeu de combat is, it seems to me at least, enjoyed more by some than by others. Hot tubbing: In recent years, the practice of asking two (or more) expert witnesses to give evidence, whilst sitting alongside each other (in the proverbial hot tub) in front of the arbitral tribunal, has gained some momentum. Typically, but by no means exclusively, this hot tub session takes place as a separate session after the experts involved have completed their cross-examinations by counsel.1 This practice is used on occasion and has widely varying views on its utility. Over the years, having spent many hours and days in the proverbial ‘hot-tub’ I can echo the divergent views on the value to the tribunal that is delivered from such a method. When a tribunal is well prepared and is seen to control the hearing room, and when the experts are willing to properly engage in the process, then the hot tub can provide a useful forum in which dynamic views on specific issues can be heard and tested in quick time. Equally, when these criteria are absent, the hot tub can provide little of use, other than a spectator sport—with probable very limited audience appeal. Meetings of experts: Often prescribed by procedural order, a meeting of the two expert witnesses addressing the same issues (such as for example, quantum or delay or product specifications) can be useful. In my caseload, such meetings are most commonly ordered to take place between the date of submission of all expert reports and the date of the hearing. The deliverable for the tribunal from such a meeting typically is a written schedule (or short report), jointly written and jointly signed by the experts, which sets out the following: those issues agreed and then those issues not agreed, with reasons for the disagreement). In my experience, when such a joint statement is available to the tribunal, it can form a very useful concise summary document that is heavily relied upon during the hearing. Tribunal-appointed expert: This is an option, relatively rarely used, that is available to a tribunal and from my personal experience only seems to be resorted to in one of two situations: either when an impasse is confronted in the proceedings (when the tribunal finds that the parties and their expert witnesses have not provided sufficient or adequate evidence on the issue addressed by experts) or, where the tribunal is unable to make an overall finding due to the need for some specific niche technical knowledge in order to arrive at a fully responsive award. Recently, I acted in precisely this role as Tribunal-appointed expert in a highly efficient and successful commercial arbitration, with its hearing in Zürich. In some cases, for cost reasons, it is agreed that no party-appointed experts are appointed but the only expert appointed is the tribunal’s own expert. When party-appointed experts are engaged, then the presence of a tribunal-appointed expert should, at least in theory, go some way to reduce the direct adversarial nature of exchanges between parties’ experts; since the tribunal’s expert will be responsible for providing assistance and opinion to the tribunal directly (with transparency as to written reports being required to be disclosed for comments by the parties). A benefit to the tribunal of appointing their own expert, can be their ability to request clarifications on matters that have been presented by the parties’ experts—but perhaps may not have been presented sufficiently clearly or in sufficient depth as to allow the tribunal to fully grasp the nuances. Of course, from my own long experience in lecturing on LLM programmes in two Swiss universities (Geneva MIDS and Fribourg), it is extremely powerful and valuable for arbitration lawyers to have a certain level of comfort when dealing with, for instance in my own field, valuation terminology and methodologies. 4. CONCLUSION In closing, whether or not the adversarial nature of expert evidence is a prerequisite or the ‘cornerstone’ will be a matter of personal perspective. Each participant in the arbitration will likely have a different view; whether a party, counsel, arbitrator or an expert witness. Indeed, even among the legal professionals on the tribunal and those on the parties’ legal teams, it is possible that differing views may derive from the individual lawyer’s professional formation—whether in the common law or civil law traditions. If, as has been succinctly suggested to me, what it is that lawyers (regardless as to whether counsel or arbitrators) demand from expert witnesses is simply ‘to give their honest opinion, and clearly’, then it seems to me that the adversarial approach should be used thoughtfully by lawyers and by expert witnesses alike. Relying exclusively on aggressive or dogmatic cross-examination questions or answers, as being the ‘best’ way to obtain or defend the ‘correct’ opinion is fraught with weaknesses—and risks not being the optimum method of gleaning genuinely useful and understandable opinion and evidence for the tribunal to use in their deliberations on challenging technical matters. Footnotes 1 As an example of the ad hoc diversity in format and method, in a recent Swiss arbitration, I was asked to sit alongside the other party’s-appointed expert for an entire day in the hot tub. Each of us was first required to deliver a 30-minute presentation to the tribunal, but there was no ‘traditional’ set piece cross-examination of each witness. Counsel and the tribunal took turns at asking questions of each expert on a pre-planned and agreed series of topics. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

de Chazournes, Laurence Boisson;Fabri, Hélène Ruiz;Mbengue, Makane Moïse;Das, Rukmini;Gros, Guillaume

2018 Journal of International Dispute Settlement

doi: 10.1093/jnlids/idy007

Abstract In the past decade, international courts and tribunals have been increasingly facing scientific and technical issues in their case law, and international disputes have seen greater resort to expert opinion, both by parties and adjudicators. Despite the increasing use of the expert in various kinds of international disputes, there has not been a corresponding coherence in practice governing different aspects of expert use, or clarity in the rules and practices to be followed in this respect. The present journal issue includes diverse contributions from authors on the aforementioned theme and offers challenging views and opinions on the topic. To further dialogue on various aspects of working with experts in disputes, especially cutting across different fora, a symposium was organized in April 2017, at the Max Planck Institute Luxembourg. This symposium provided a platform for the exchange of ideas on topics of considerable debate and divergent views. The interaction of participants highly experienced and specialized in their field also provided an in-depth practical and theoretical analysis of the topic under discussion. A comparative perspective, crucial to a holistic appraisal of the subject, was the hallmark of this discussion, due to the diverse professional backgrounds of the participants. The symposium highlighted and confronted, among other issues, varying views on the appointment of experts, their roles and obligations; the modes of using experts within the framework of the proceedings; and the means of assessing expert evidence available to the judge. The symposium was part of a research project on ‘Experts and International Courts and Tribunals’, funded by the Swiss National Science Foundation (SNSF),1 and conducted at the Faculty of Law of the University of Geneva. The research conducted under the aegis of the project aimed to identify and analyse practices across various international jurisdictions in relation to experts appearing in disputes before the said jurisdictions. The research has illuminated the core areas of disagreement and disparity among participants in international dispute settlement, such as the efficacy of cross-examination, the preference for party-appointed over tribunal-appointed experts and their expected roles and duties, as well as the areas which, by broad consensus, are in need of reform, such as the use of ‘phantom experts’ and transparency in a court or tribunal’s use of experts. The symposium provided opportunity for further in-depth discussion and examination of these aspects of expert use in international disputes. Speakers experienced in investment and trade disputes, those who have been involved with the Court of Justice of the European Union (CJEU), the Law of the Sea Tribunal as well as the International Court of Justice—in capacities of judges, counsel as well as experts—brought the necessary diversity of experience, along with academic scholars, to the debates at the symposium. A majority of these speakers, as contributors to this special issue of the JIDS, have also brought the same diversity of opinion to the debates in this journal, while at the same time expanding on the thoughts expressed at the symposium. Across a broad spectrum of dispute settlement fora, the authors raise issues concerning the various forms in which experts may be involved in a dispute and the procedures that govern their involvement, judicial assessment of expert evidence including questions such as admissibility and weight of such evidence and a related concern for independence and impartiality of experts that may have a bearing on admissibility of their evidence. The thread that ties these inquiries together is the extent to which the use of experts affects various aspects of an international dispute, from the pre-hearing phase, until judicial decision-making. There is a need to delineate the roles and responsibilities of experts from those exercised by judges and arbitrators in a dispute settlement function. The contributions brought together in this special edition of the journal confront these issues and help us to further consider how to address them. The papers in this special issue have thus been broadly classified into four sections, based on the different aspects of expert use they analyse. Each section consists of two to four contributions. Thereafter, a jointly authored paper by Professors Boisson de Chazournes and Mbengue, and Guillaume Gros and Rukmini Das, highlights the conclusions they have drawn from the empirical research they have conducted, under the aegis of the SNSF project. 1. CONTRIBUTIONS BY SYMPOSIUM SPEAKERS A. Different Forms of Expert Involvement The expert is an actor with a plurality of forms. A single term encompasses a multiplicity of practical expressions. He or she may be appointed by the judge, by the parties as a witness, as a counsel, or may sit with the judge or even in certain instances be a judge. Some of them apparently intervene at the fringe of the legal framework, being invisible, without formal recognition or public involvement. Each of these is an expert, the modality of intervention relates in fine to a specific type of justice either more inquisitorial or more adversarial. There may be advantages of using one form of experts over another, or of using two or more of them in conjunction. The authors of this section describe according to different perspectives and conceptions, these different types of use, and make a critical assessment in context of the adversarial principle. Judge Bennouna after carefully delineating the limit of the function of an expert in a judicial context addresses the advantages and disadvantages of the different forms of expert involvement in context of the International Court of Justice. He notes certain limits to a pure adversarial approach of fact-finding especially with regard to scientific uncertainty. He argues however in favour of the limited added value of the court-appointed expert and advocates for its cautious use. James Flett makes the plea that a sound conceptual clarification is necessary to effectively grasp the practice of using experts and would help resolving substantial issues. By relating the function of an expert to the functions of the other judicial actors, he identifies a negative definition, determining what an expert is not or should not do. He identifies the remaining (limited) functions of the expert, the primary one being organizing facts and evidence. Against this background Flett analyses the World Trade Organization (WTO) practice, and concludes that both adjudicators and counsel should keep in mind that the role of an expert is limited to ‘provid[ing] assistance’. As a counterpoint, Geoffrey Senogles offers a valuable perspective by giving the practical analysis of an expert on the adversarial production of expert evidence. Senogles offers a critical assessment of the different procedural methods existing to implement the adversarial principle in the production of expert evidence, rooted in practical experiences. He demonstrates that an adversarial approach without constraints can lead the experts to forget their function of assistance to the judge by sustaining entrenched positions and concentrating on discrediting the expert of the opposing party. Cherise Valles, after acknowledging the technical or scientific complexity of the disputes brought to the WTO, draws a comprehensive picture of the types of expert involvement including recourse to international organizations. By doing so, she points the paradox in WTO practice that no economic expert was ever appointed despite the parties including increasing number of economic technical evidence. The role of the secretariat in this perspective is then critically discussed as well as the importance of the standard of review applied when dealing with factual complexity. B. Judicial Assessment of Expert Evidence This section debates the means of introducing expert knowledge into the judicial decision and the potential development of legal criteria to handle scientific categories. Judgments from different international fora reveal varied approaches to handling expert evidence, in terms of using it to arrive at a decision, incorporating it into the steps in the judicial process. There seems to be an absence of a consistent approach in terms of admissibility of such evidence, weight given to it, or otherwise assessing it, across fora and sometimes within the same judicial forum. Judge Donoghue clearly notes that every case involving expert evidence does not call for passing judgement on scientific questions, since the mandate of the international judge is to settle legal disputes. Addressing a case according to this specific mandate allows judges to not adjudicate on the substance of matters of scientific uncertainty. Judge Donoghue demonstrates that when it comes to scientific fact-finding, the methodology of judicial assessment does not differ from fact-finding in general. Especially, similarly to other facts judges make use of ‘second order indicators’ when assessing scientific expert evidence. Generally, it is argued that increased scientific fact-finding should not be an objective in itself for international courts and tribunals. For Kate Cook, the ‘best available science’ (BAS) standard is increasingly present in international law, and is likely to become a parameter of assessment for the legality of national measures with scientific components. In this regard, the Paris climate agreement provides the most important illustration. Cook explains that if the agreement comes under judicial review, this will encompass an appraisal of the BAS as a determinant of the disputed measures. The assessment of expert evidence by international courts and tribunals will potentially be influenced by the formalization of this standard. The ITLOS has already made use of the BAS standard, the absence of which should trigger the application of the precautionary principle. As demonstrated by Isabelle van Damme, rules regarding evidence, admissibility, standard of proof and standard of review are underdeveloped in international law. At the same time, she notices the diversity in the use of expert evidence and its respective difference in treatment. Based on an analysis of the WTO and CJEU practice, van Damme advocates then for the determination of ‘essential procedural guarantees’ with regard to the assessment of expert evidence, as well as the reassessment of the use of party-appointed and ex-curia experts. In that respect, she concludes that before international courts and tribunals a balance should be identified between equity and transparency on one side and flexibility on the other. Jose Alvarez uses the Philip Morris vUruguay ICSID case to explore the concept of objectivity in a judicial context through the treatment of expert evidence. This case involved a considerable amount of expert evidence, the assessment of which was a crucial element of the decision. If it provided the judges with the occasion to distinguish ordinary ‘witnesses’ from ‘experts’, Alvarez points out the relative failure of the Tribunal to make ‘law ascertainment’ its exclusive domain. In this respect, the significance of legal experts, be it in international law or Uruguayan law, is somewhat problematic with regard to respect of the principle ‘iura novit curia’. Alvarez also identifies the absence of a specific test for expert evidence, as conceived in the US domestic system. When considering a risk of judicial ‘fragmentation’, he argues that a common set of rules with regard to assessment of expert evidence, identified cautiously, would be a factor fostering coherence in international jurisprudence. C. Qualities of Experts and Admissibility It is hardly disputed that an individual to be called an expert ought to possess certain qualities or characteristics that qualify him or her as such. In addition to specific knowledge and abilities, other qualities, often described as ‘ethical’, should characterize the expert in a judicial process, the most common among them being related to independence and impartiality. Requirements of independence and impartiality are not only found in common and civil law domestic systems, but also appear to be universal and are usually found in rules and statutes of most international fora. However, their definitions and scope remain imprecise. In practice, their implementation and means of testing appear unsettled, thus questioning their significance regarding experts in international law. In this context, Marisa Goldstein, in describing the procedures for selection and consultation of various forms of experts in WTO dispute settlement, highlights how the selection process of each kind of expert has specific issues of impartiality and due process attached to it. She describes how, at every stage of the process, especially that of expert selection, consultation, and utilization of expert input, panels try to ensure the independence of those experts. As Philippe Gautier demonstrates, through reference to rules and case law, the International Tribunal for the Law of the Sea, too, plays a significant role in ensuring the independence of experts and the impartiality and credibility of expert statements. Gautier also elaborates on the parties’ role in this regard, which, though limited, has been expanded through the use of innovative procedures such as voir dire (rarely used in international disputes). In context of inter-state and investor-state disputes, Kate Parlett identifies the safeguards and limitations to the possibility that an expert’s views might be unduly influenced by a party or its counsel. She argues that in practice, the effectiveness of these safeguards will ultimately depend on the ethical standards observed by parties, their counsel and the experts themselves. With a specific focus on investor-state arbitration, Mélida Hodgson and Melissa Stewart examine, in light of current practices, the lack of standards in existing rules to assess the credibility of expert opinions. They then propose that standards be adopted to determine the admissibility, or qualification, of credible expert testimony. In all these contributions, what appears as a common thread is the recognition that there is an undoubted necessity for the experts to possess certain ethical traits, as well as a need to ensure that the experts possess them. D. Concluding Observations and Suggestions for Reform Brendan Plant, in addressing reform in the expert evidence regime, highlights the specificity of international adjudication by emphasizing its flexibility. He explains how this flexibility complicates all prospects of procedural reform, each reform being able to potentially disturb the institutional balance agreed upon by states. Thus, reforming expert evidence regimes by modifying statutes and rules could prove ineffective. Some practitioners and adjudicators nevertheless acknowledge a need to adapt the system to accommodate the evolution of disputes towards increasing factual complexity. Plant suggests that this adaptation could be achieved through change in practices, fostered by adjudicators. He adds that these evolved practices should include a more transparent approach to the presentation and assessment of expert evidence. Jean-Marc Sorel concluded the symposium and notes by that the scope for reform lies perhaps less with the role of the expert and more with the expected role of the judge. He is of the opinion that a balance must be reached between confidence in the experts and increase in procedural safeguards to control them. 2. CONTRIBUTION BY THE PARTICIPANTS IN THE SNSF PROJECT ON EXPERTS Laurence Boisson de Chazournes, Makane Mbengue, Rukmini Das and Guillaume Gros, conclude this special issue with a paper on the regime of expert use in international disputes with insights from interviews with judges, practitioners and experts. In this article, the authors provide their analysis of the practical understanding of expert use in international disputes by judicial actors. This analysis is drawn from their exploration of questionnaires and interviews they conducted under the aegis of the SNSF project. These findings provide an understanding of the practices with respect to the kind of experts used, the methods of oral interaction, the assessment of evidence as well as areas of concern that are ripe for reform in a comparative perspective. Footnotes 1 Project number 10001A_156117, Swiss National Science Foundation, 2015–2019. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Donoghue, Joan E

2018 Journal of International Dispute Settlement

doi: 10.1093/jnlids/idy011

Abstract The primary mandate of international adjudicators (such as Judges of the International Court of Justice and members of investor-State arbitral tribunals) is to settle the legal dispute presented to them in a given case. They have scope to decide scientific questions only in the course of settling those disputes. Many cases involving scientific issues do not call for findings of scientific facts by adjudicators. In those cases that do call for findings of scientific facts, however, the methodology of judicial assessment is not peculiar to scientific facts. Regardless of whether the facts at issue are scientific in nature, adjudicators rarely base their conclusions on direct evidence, relying instead on second-order indicators. These second-order indicators are well-suited to the evaluation of evidence adduced through party-appointed experts, but are of more limited use when a court or tribunal appoints its own expert. 1. INTRODUCTION Experts participate in international adjudication1 in a variety of ways, most commonly as party-appointed experts and, less frequently, as court-appointed experts.2 Although experts speak to many different subjects, these remarks focus on evidence adduced through the involvement of experts in the natural sciences, which I shall call ‘expert scientific evidence’. I wish to explore this question: How should adjudicators approach the assessment of expert scientific evidence? The scholarly writings of one of the organizers of this symposium, Professor Makane Mbengue, suggest a two-part answer to this question. First, Professor Mbengue calls for more robust scientific fact-finding by international courts and tribunals (ICTs), asserting that: international adjudication [c]ould constitute a new promised land for scientific fact-finding…3 Second, Professor Mbengue urges greater use of court-appointed scientific experts: It is indisputable — not to say evident — that international courts and tribunals would benefit by resorting more systematically to the ‘assistance of experts’ when confronted with issues of scientific fact-finding.4 Professor Mbengue and a colleague criticize the ICJ in particular for skirting difficult questions of scientific evidence.5 Their dissatisfaction echoes the more general observation that the ICJ often avoids resolving difficult questions of fact.6 I certainly understand why some observers are disappointed when the decision of the ICJ or another ICT does not resolve a scientific controversy. And I accept, to a degree, both of Professor Mbengue’s propositions: some cases before ICTs do call for scientific fact-finding and there are circumstances in which court-appointed experts can assist adjudicators in fact-finding. However, taking into account the context in which ICTs are confronted with expert scientific evidence (which I depict as concentric rings in the figure below), I conclude that increased scientific fact-finding by ICTs should not be an objective in its own right. I also suggest some caution regarding court-appointed scientific experts. I begin by positing (2.A.) that the primary mandate of adjudicators is to settle legal disputes, and then observe (2.B.) that many cases involving disputed scientific assertions do not call for a finding on scientific facts. Thereafter, I turn to the methodology of fact-finding that ICTs use, pointing out (2.C.a) that, in cases having nothing to do with science, adjudicators often base evidentiary conclusions on second-order indicators. They use similar second-order indicators to evaluate scientific evidence presented by party-appointed experts (2.C.ii), but those indicators do not translate well to the evaluation of evidence presented by court-appointed experts (2.C.iii). 2. THE CONTEXT FOR CONSIDERATION OF EXPERT SCIENTIFIC EVIDENCE A. The Mandate of Adjudicators When we evaluate the way in which ICTs assimilate expert scientific evidence, we must bear in mind the mandate of each ICT. To this end, drawing on the work of Yuval Shany, we can seek to identify the goals for which each form of international dispute settlement was established.7 I offer summary observations about the goals of the ICJ contentious case jurisdiction8 and investor-State arbitration. As to the ICJ’s contentious case jurisdiction, it appears that the primary goal of the drafters of the United Nations Charter and the Statute of the International Court of Justice was the settlement of legal disputes between States.9 The history of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) reveals a similar goal for investor-State arbitration—to provide a forum for the settlement of disputes between host States and investors.10 Bearing in mind that the ICJ is accountable not only to disputing States but also the entire membership of the United Nations and that its proceedings and its decisions are available to the public, we can identify two additional goals for the Court—that its decisions would develop international law and would influence the behaviour of States not parties to a particular case.11 However, the ICJ has no mandate to pursue these two goals other than in the course of deciding contentious cases and rendering advisory opinions. It is unlikely that the drafters of the ICSID Convention had in mind the goals of law-development and of influencing the conduct of non-parties when they set out a mechanism for investor-State arbitration, which has traditionally functioned with a presumption that arbitral awards will remain confidential.12 The emergence of investment jurisprudence is one of the reasons for more recent calls for greater transparency. Did the mandate providers establish fact-finding as a goal of ICJ contentious case jurisdiction or of investor-State arbitration? I doubt it. Of course, both the ICJ and investor-State arbitral tribunals find facts, but they do so in pursuit of the primary goal for which they were established—the settlement of disputes. I agree with one of my former colleagues that ‘[t]he task of the Court … is to decide disputes of fact which have to be resolved in determining whether a party to the proceeding has breached its legal obligations.’13 Accordingly, adjudicators have a mandate to engage in scientific fact-finding when settlement of the legal dispute between the parties calls for the resolution of scientific facts. B. Framing the Question Presented to Adjudicators in a Case Some cases call for a judicial decision regarding disputed scientific evidence. For example, an allegation that one State has caused significant transboundary harm to another State requires adjudicators to weigh evidence on such issues as the extent of environmental harm and causation.14 In many cases involving scientific facts, however, the legal dispute to be decided by the adjudicators does not require resolution of the underlying scientific uncertainty. Suppose, for example, that an investor initiates arbitration, claiming that there was no scientific basis for the respondent State’s ban on use of a chemical and that the ban violates the respondent State’s fair and equitable treatment obligation. The respondent State disagrees, asserting that the chemical was banned because it poses an environmental or health risk. Allegations of this sort often appear in investor-State arbitration, as illustrated by Methanex Corporation v United States15 and Chemtura v Canada.16 In Chemtura v Canada, the investor, which produced a pesticide used to treat seeds, alleged that Canada’s phase-out of the use of the pesticide violated the fair and equitable treatment and expropriation obligations of the North American Free Trade Agreement (NAFTA). The Tribunal made clear that its task was not to determine whether certain uses of this pesticide were dangerous.17 It considered instead whether Canada’s process of reviewing the use of the pesticide was undertaken pursuant to the mandate of the reviewing regulatory agency and in implementation of Canada’s obligations under environmental treaties or was instead driven by trade concerns (as the investor claimed).18 To this end, the Tribunal examined the manner in which Canada had launched and conducted its review of the pesticide, relying on testimony of Canadian officials involved the review. It found that the evidence did not show bad faith or disingenuous conduct on the part of Canada and that the review of the pesticide was undertaken pursuant to the mandate of the reviewing agency and as a result of Canada’s international obligations. It concluded that Canada had met its obligations under NAFTA.19 In cases like Chemtura, courts and tribunals decide the case without passing judgment on the underlying scientific questions, eg, the risk posed by a particular substance. Such decisions may disappoint observers who wish for a clearer conclusion regarding the underlying scientific facts, but the adjudicators are addressing the question presented by the dispute before them, in a manner that is faithful to their mandate. C. Methodology of fact-finding (i) In General Professors d’Aspremont and Mbengue have stated that ‘scientific fact-finding enunciates “probabilities” while traditional fact-finding methods validate “veracities”’.20 I believe that this distinction is overstated. The assessment of evidence often takes place under conditions of uncertainty, as is reflected in one widely used formulation of a standard of proof—‘the balance of probabilities’.21 An allegation that a respondent State bears international responsibility for alleged violations of human rights law, for example, can rarely be evaluated by direct assessment of concrete evidence. Instead, such cases require adjudicators to weigh probabilities in order to form conclusions on difficult questions such as an alleged perpetrator’s intent or purpose and the extent of the State’s control over the conduct of that person. The difficulty of reaching conclusions about disputed questions of fact leads adjudicators to assess evidence using techniques that have been called ‘second-order indicators’.22 For example, adjudicators frequently identify those facts on which the parties agree, and proceed on the basis of party agreement.23 When a party admits facts that are unfavourable to it, adjudicators treat those facts as established without further inquiry.24 Adjudicators give particular weight to statements that are adverse to the party with which the person making the statement is associated.25 When adjudicators examine the testimony of a witness, they employ a variety of second-order indicators. For example, the ICJ: considers whether a witness is disinterested, giving greater weight to testimony of someone who has nothing to gain or to lose, as well as to statements against interest (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 42–43, para. 69). The Court distinguishes between facts within the witness’s personal knowledge, on the one hand, and speculation or repetition of information learned from others (sometimes called ‘hearsay’) on the other hand (ibid., p. 42, para. 68). The Court gives particular weight to statements that are contemporaneous with the events at issue (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 731, para. 244).26 ICTs draw inferences to fill gaps in direct evidence.27 Negative inferences have particular significance when a respondent State can be expected to possess information that it fails to produce. For example, when the respondent State failed to produce any evidence to support its claim that it had informed an individual of the reasons for his arrest and expulsion, the ICJ drew negative inferences.28 When investor-State tribunals apply the International Bar Association Rules on the Taking of Evidence in International Arbitration (2010) (IBA Rules), a party’s failure to produce documents can lead to an inference that is adverse to that party.29 Bearing in mind the overall importance of second-order indicators in the resolution of difficult questions of evidence, I turn to the methodology that applies to scientific evidence adduced through experts. (ii) Scientific Evidence Presented by Party-Appointed Experts When adjudicators evaluate scientific evidence presented by party-appointed experts, they make extensive use of the same kinds of second-order indicators that they use to evaluate other kinds of evidence. I review some of the second-order indicators used in relation to party-appointed experts and then turn to the evaluation of evidence presented by court-appointed experts. Adjudicators apply second-order indicators to evaluate the reliability and credibility of a party-appointed expert, much as they do with fact witnesses. Both the expert and the appointing party can be expected to establish the expert’s independence, qualifications and areas of expertise,30 and opposing counsel inevitably look for opportunities to erode the adjudicators’ confidence in the other party’s expert. Other second-order indicators contribute to the evaluation of the evidence adduced by party-appointed experts. Adjudicators seek to narrow the factual dispute by identifying points on which party-appointed experts agree.31 The importance of agreement between experts is illustrated by the IBA Rules, widely applied in investor-State arbitration, pursuant to which a tribunal may require the parties’ experts to record their points of agreement and disagreement.32 Adjudicators also give particular weight to opinions of an expert that are adverse to the party that appointed the expert.33 The unexplained failure to present scientific evidence can lead to an adverse inference. When the ICJ rejected Nicaragua’s claim that Costa Rica’s construction of a road had caused substantial environmental harm to Nicaragua, the Court pointed out that Nicaragua had not produced direct evidence in support of certain assertions, relying only on modelling and estimates by its experts.34 Courts also take into account a party’s failure to refute the evidence of the other party’s expert.35 An important second-order indicator of the reliability of expert scientific evidence is the methodology used by an expert. Under the IBA Rules,36 the report of a party-appointed expert must include ‘a description of the methods, evidence and information used’ in reaching conclusions. ‘One of the key qualities required for any technical assertion to be deemed compatible with scientific methodology is that it be independently verifiable or susceptible to peer review’.37 Each party typically seeks to undermine the scientific conclusions advanced by the other party by pointing to what it regards as methodological errors of the other party’s experts, criticizing, for example, ‘the care with which [the] analysis was conducted, its completeness, the accuracy of the data used, and the clarity and coherence of the conclusions drawn from such data’.38 Second-order indicators such as those noted here often determine the conclusions of an ICT on disputed scientific facts. In addition, when adjudicators state their conclusions on difficult questions of fact, whether scientific or not, the burden of proof plays an important role. Instead of stating directly that a particular fact did or did not occur, adjudicators typically conclude that a party has ‘failed to provide sufficient evidence’ of an alleged fact39 or has not proven those facts.40 (iii) Scientific Evidence Presented by Court-Appointed Experts The second-order indicators that are used in relation to party-appointed experts do not operate in the same manner when adjudicators assess evidence presented by a court-appointed expert. As with party-appointed experts, the adjudicators can consider the indicators related to the independence and expertise of the expert. However, they can be expected to consider these indicators most carefully prior to appointing the expert, taking into account party views. Moreover, although adjudicators are not bound by the conclusions of the experts they appoint, they are likely to invoke second-order indicators only to lend credence to the conclusions of an expert appointed by them. Their tendency will be to avoid the conclusion that an expert appointed by them made methodological errors. The parties might also refrain from challenging the conclusions of an expert chosen by an ICT, for fear that this would be interpreted as a challenge to the authority of the ICT itself. Under these circumstances, all participants in the proceedings may feel constrained to accept the court-appointed expert’s findings as definitive, which could determine the outcome in the case. 3. CONCLUSION Taken as a whole, the mandate of international institutions does not come close to matching the range of powers and functions assigned to the organs of States. These limitations can lead to disappointment about the inability of international law and institutions to solve pressing problems. The limited mandate of international courts and tribunals is one reason (although not the only reason) why their decisions are seen at times as missed opportunities to fill gaps in international governance, whether through an authoritative decision on disputed facts or through the development of international law.41 However, these opportunities are only available to an international court or tribunal in the course of settling the dispute presented to it. That is why, when an ICT is confronted with a case raising scientific controversies, it must consider with particular care the framing of the legal dispute presented to it and the extent to which that dispute calls for decisions on scientific evidence. Adjudicators also need a clear appreciation of the dispute that is presented in a case in order to decide whether to appoint an expert. If the dispute calls for a decision on scientific evidence and there are reasons to doubt the adequacy of evidence presented by the parties (including through their experts), appointment of an expert may be warranted. The dispute, as framed by the adjudicators, informs both the necessary areas of expertise and the terms of reference to be given to the expert. Prior to appointing an expert, adjudicators must follow procedures that allow for party input, thus stemming later criticism of an expert’s independence or expertise or of the terms of reference. They must also consider whether they are prepared to temper their reliance on second-order indicators such as the expert’s methodology, placing themselves instead in a situation in which they ‘cannot fail to give great weight’ to the opinion of the expert appointed by them.42 Footnotes 1 For convenience, I use the terms ‘adjudication’ and ‘court’ to refer not only to international courts, but also to international arbitration and other mechanisms for the binding settlement of a dispute to which at least one party is a State. I use the term ‘adjudicator’ to refer to the international decision-makers (eg, judges, arbitrators). 2 In the International Court of Justice (ICJ), Court appointment of an expert is to take place ‘after hearing the parties’, who are to be given an opportunity to comment on expert reports (Rules of Court, art 67). However, the Court has at times consulted experts without engaging the parties, a practice that has raised justifiable concerns. The Court’s Statute (art 30, para 2) also permits the Court to engage ‘assessors’ who may participate (without a vote) in the Court’s deliberations, although the Court has never done so. See generally Giorgio Gaja, ‘Assessing Expert Evidence in the ICJ’, (2016) 15 The Law and Practice of International Courts and Tribunals 409. 3 Makane Moïse Mbengue, ‘International Courts and Tribunals as Fact-Finders: The Case of Scientific Fact-Finding in International Adjudication’ (2011) 34 Loyola LA Int’l & Comp L Rev 53, 67. 4 ibid 53, 75. 5 Jean d’Aspremont and Makane Moïse Mbengue, ‘Strategies of Engagement with Scientific Fact-Finding’ (2014) 5 JIDS 240, 252–6. The authors do not mince words, stating that the ICJ ‘has constantly been stifling scientific issues by hiding behind legal reasoning and using legal rationality to shield itself from scientific controversies’. ibid, 252. 6 See eg Thomas M Franck, ‘Fact-Finding in the ICJ’ in Richard B Lillich (ed), Fact-Finding Before International Tribunals (Transnational Publishers 1992) 21. 7 See Yuval Shany, Assessing the Effectiveness of International Courts (OUP 2014). Professor Shany has suggested that we evaluate the effectiveness of various international courts and tribunals with reference to the goals of the ‘mandate providers’ who established a particular form of international adjudication. He recognizes that the effectiveness of an ICT can also be evaluated with reference to goals other than those of the mandate providers (ibid, 6, 23–25). 8 I focus here on contentious cases before the ICJ, although, of course, the Court has the additional mandate to render advisory opinions. 9 See Shany (n 7) 166; Malcom N Shaw, Rosenne’s Law and Practice of the International Court: 1920–2015 (5th edn, Brill Nijhoff 2016), vol I, 165. 10 See Aron Broches, ‘The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States’ (1972) 136 Recueil des cours 337, 342–50. 11 Joan E Donoghue, ‘The Effectiveness of the International Court of Justice’ (2014) ASIL Proceedings 114, 116. See also Shany (n 7) 166–8. 12 ICSID Convention art 48(5). 13 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Merits) [2010] ICJ Rep 14, Separate Opinion of Judge Keith 121, [8]. 14 See eg Pulp Mills, ibid; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) [2015] (II) ICJ Rep 665. 15 Methanex Corporation v United States of America (Final Award on Jurisdiction and Merits, 3 August 2005, ad hoc UNCITRAL Tribunal under NAFTA Ch 11), available at www.italaw.com. 16 Chemtura Corporation v Government of Canada (Award, 2 August 2010, ad hoc UNCITRAL Tribunal under NAFTA Ch 11) <www.italaw.com> accessed 13 April 2018. 17 ibid, [134]. 18 ibid, [137]. 19 ibid, [138]–[143], [162]. 20 d’Aspremont and Mbengue (n 5) 246. 21 Consistent with traditions in civil law jurisdictions, the ICJ has not explicitly adopted a generallyapplicable standard of proof. However, the Court’s reasoning suggests that, in general, it reaches conclusions based on the balance of probabilities. See Pulp Mills (n 14), Separate Opinion of Judge Greenwood 221, [25]–[26]. 22 See Oren Perez, ‘Judicial Strategies for Reviewing Conflicting Expert Evidence: Biases, Heuristics, and Higher-Order Evidence’ (2016) 64 Am J Comp L 75, 78, distinguishing between the direct assessment of evidence and the use of second-order indicators and Evan Bell, ‘Judicial Assessment of Expert Evidence’ (2010) 2 Judicial Studies Institute Journal 55 (describing techniques used by British judges to evaluate expert evidence). 23 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Merits) [2015] (I) ICJ Rep 1, [357], [447]–[449]. 24 See eg Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 13, [64]; Genocide (Croatia v Serbia) (n 23) [230], [281], and [284]. 25 Nicaragua v United States of America, ibid [64]. 26 Genocide (Croatia v Serbia) (n 23), Declaration of Judge Donoghue 390, [3]; see also the Judgment [196]–[197]. 27 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 1, 18. 28 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), [2010] ICJ Rep 638, [84] and [96]. 29 IBA Rules, art 9(5). 30 ibid, art 5(2). 31 See eg Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) [2014] ICJ Rep 225, [75], [77], [188]; Certain Activities and Construction of a Road (n 14) [119] and [198]. 32 IBA Rules (n 29), art 5(4). 33 Australia v Japan (n 31) [180], [192], [206]. 34 Certain Activities and Construction of a Road (n 14) [203] and [205]. 35 Australia v Japan (n 31) [190]. 36 IBA Rules (n 29), art 5(2)(e). 37 Nigel Blackaby and Alex Wilbraham, ‘Practical Issues Relating to the Use of Expert Evidence in Investment Treaty Arbitration’ (2016) 31 ICSID Review 655, 660. 38 Pulp Mills (n 13) [166]. 39 Genocide (Croatia v Serbia) (n 23) [256]. 40 Certain Activities and Construction of a Road (n 14) [119], [204], [206]. 41 See eg Diane Desierto, ‘Evidence but not Empiricism? Environmental Impact Assessments at the International Court of Justice in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica)’ (EJIL: Talk! 26 February 2016) <https://www.ejiltalk.org/evidence-but-not-empiricism-environmental-impact-assessments-at-the-international-court-of-justice-in-certain-activities-carried-out-by-nicaragua-in-the-border-area-costa-rica-v-nicaragua-and-con/> accessed 7 November 2017; Marko Milanovic, ‘On the Entirely Predictable Outcome of Croatia v. Serbia’ (EJIL: Talk! 6 February 2015) <https://www.ejiltalk.org/on-the-entirely-predictable-outcome-of-croatia-v-serbia/> accessed 7 November 2017. 42 Corfu Channel (n 27) 21. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Van Damme, Isabelle

2018 Journal of International Dispute Settlement

doi: 10.1093/jnlids/idy013

Abstract An assessment of the different contexts in which expert evidence in international adjudication, in particular in the settlement of disputes before the Court of Justice of the European Union (CJEU) and the World Trade Organization (WTO) dispute settlement system, may be used shows that the challenge lies in designing rules that are sufficiently permissive and flexible but nonetheless result in a more equitable, efficient and transparent method of submitting and assessing expert evidence. At the same time, the practice of and the rules governing the use of expert evidence before the CJEU and the WTO dispute settlement bodies suggest that a more calibrated treatment of court-appointed experts and party-appointed experts is required. 1. INTRODUCTION An assessment of the different purposes for which expert evidence in international adjudication may be used, in particular in the settlement of disputes before the CJEU (both the General Court and the Court of Justice) and the WTO dispute settlement system, presupposes that there is a common understanding of the meaning of an ‘expert’ and the applicable rules regarding the admissibility of evidence, the standard of proof and the standard of review in the relevant fora of dispute resolution.1 However, in international adjudication as it exists today this type of procedural rule remains underdeveloped. In the absence of such a procedural framework, an assessment of the (lack of) use of expert evidence therefore necessarily entails a degree of imprecision. In essence, rules regarding the admissibility of evidence, the standard of proof and the standard of review in the relevant fora of dispute resolution concern the value to be attached by an adjudicator, on whom jurisdiction has been conferred to resolve a dispute regarding the interpretation and application of law, to evidence. The focus of this article therefore is not on whether any value at all should be given to expert evidence. Other contributors to this issue of the Journal of International Dispute Settlement will address that matter in greater detail. My own view is that the use of expert evidence may be (very) valuable, provided that there is an accord on the essential procedural guarantees for the treatment of such evidence, including respect for due process. 2. GENERAL OBSERVATIONS ON THE FUNCTION(S) OF EXPERTS The practice of relying on expert evidence in international dispute settlement shows that such evidence may be used for different purposes, such as appraising factual assertions, identifying data, verifying the validity of a methodology or assessing opinions as regards such facts or methodologies. Discussions during the symposium on ‘The Expert in the International Adjudicative Process’, in which judges and counsel active in various dispute settlement fora took part, attested to that diversity.2 There is no generally applicable definition of experts. I would therefore submit that, for the purposes of this brief note, experts are in essence reputable, qualified, independent and objective individuals or organizations with a unique knowledge of facts falling within their expertise that are relevant to the resolution of a dispute before a court or tribunal. The evidence which they produce, whether in the form of written reports (whether or not produced for the specific purpose of being filed as evidence in judicial proceedings) and/or oral testimony, may be used by parties or be requested by courts or tribunals themselves. Experts can be used in international adjudication in order to appraise factual assertions (such as the assessment of municipal law or the evaluation of economic data) or identify data (such as the collection of import/export statistics). Where expert evidence is used to determine the existence of facts occurring or data produced outside of the control of the expert, it might suffice to rely on the original source of those facts or data, though an expert might assist in identifying the proper sources and offer additional support for a factual assertion.3 For example, the meaning of domestic law might be shown by relying on the text of the relevant legislation or legal instruments, evidence of the consistent application of such laws and the pronouncements of domestic courts on the meaning of such laws. A statement of an expert might summarize and collect all of these elements and/or add further interpretive arguments in support of one or the other meaning.4 The situation is quite different where the expert is the original source of facts in the sense that the expert observed, assessed and/or organized the facts in a particular manner. In those circumstances, the expert evidence might be essential to a party’s discharge of the burden of proof because no other source is available. Or expert evidence can be relied upon in support of the validity and general acceptance of using a particular (scientific) methodology and of the results of its application (for example, the merits of using one particular economic model as compared to another). The value of such expert evidence lies in the opinions or conclusions reached by the individual or organization authoring the expert statement, often regarding a certain fact or the application of a particular methodology applied to a defined set of facts. In such circumstances, the expert focuses primarily on the causes and consequences of relevant facts.5 Thus, experts can be used for different purposes in discharging the burden of proof of the party relying on expert evidence. Not all expert evidence will perform each and every one of those functions. That also implies that, in considering how expert evidence is to be assessed by international courts and tribunals, it is necessary to take into account the specific purposes for which the expert evidence is used, either by the party relying on that expert or the adjudicator deciding on the matter put before it in the light of the arguments and evidence presented to it. Therefore, the assessment of the use of expert evidence must take into account such contextualization and avoid studying expert evidence as being a monolithic category of evidence. In other words, the contribution of an expert in, for example, economics, national law, science, or other areas relevant to the fact-finding exercise or assessment of facts that is to occur before an international court or tribunal is not necessarily the same. At the same time, irrespective of the function of such evidence in a particular case, the use of expert evidence by one party will often prompt the other party to respond, in the absence of rules on the admissibility and value of expert evidence, by relying on its own expert. The alternative strategy might consist of challenging the reliability, independence and quality of the expert used by the other party, even if such challenges appear to be not that common. With that proliferation of expert evidence might come the risk of decreasing probative value and lower return in terms of the probative value which an adjudicator attaches to such statements.6 Faced with the risk of conflicting views of experts, an adjudicator should weigh the value of experts expressing different opinions as regards the same facts or methodology applied to those facts. However, in the absence of procedural rules, an adjudicator might also opt for an overall assessment of the entirety of the evidence and, in that manner, avoid taking a position on the probative value of specific expert evidence. Against that background, this article now turns to specific contexts in which experts may be used in WTO dispute settlement and in cases pending before the CJEU. 3. A COMPARISON OF THE USE OF EXPERTS IN WTO DISPUTE SETTLEMENT AND BY THE CJEU A. The contexts in which experts are used in WTO dispute settlement and by the CJEU In examining the role of expert evidence in the context of litigation before the CJEU and the WTO dispute settlement bodies, there appear to be at least three contexts in which expert evidence will be used. Firstly, expert evidence might be reviewed by a national authority or an EU institution in its assessment of the matter before it, followed by the review by the CJEU (possibly first by the General Court, followed by, in the event of an appeal, the Court of Justice) or a WTO panel of that authority’s decision and underlying assessment.7 Secondly, before the CJEU or a WTO panel, expert evidence might be presented to the CJEU or a WTO panel by one of the parties to the dispute (the so-called party-appointed experts), typically as part of their written pleadings. Thirdly, the CJEU or a WTO panel may decide to appoint one or more expert(s) in accordance with the procedural rules under which they operate.8 As regards, in particular, the WTO dispute settlement system, two other contexts in which experts may be used (but not necessarily in the form of expert evidence) might be added. Apart from the lawyers who are a part of the Legal Affairs Division (and serve a role similar to that of référendaires or legal secretaries in the CJEU), WTO panels may also be assisted by other members of the WTO Secretariat, such as economists or subject-matter experts in areas such as intellectual property rights protection and SPS protection, or by specialized expert bodies for which the WTO covered agreements provide.9 Their assistance might involve also assessing the expert evidence received by the panel, either on the panel’s initiative or submitted by the parties. In the CJEU, subject to the possibility of appointing an expert or obtaining (informally) the linguistic expertise of a lawyer-linguist working at the CJEU, there does not appear to be any possibility of having experts (in matters other than the task of interpreting and applying EU law) to assist the judges sitting in a chamber deciding a particular case. Other than the judges and the members of their individual chambers assisting them (that is, legal secretaries), there are no subject-matter experts. The procedural rules governing the CJEU do not provide for the possibility of chambers specialized in certain subject matters. Nor are there economists who are employed by the CJEU and available to assist judges in reviewing the evidence presented by the parties. At best, linguistic discrepancies in the texts of the treaties, legislation and other documents requiring interpretation and/or application might be resolved with the assistance of the large number of lawyer-linguists charged with the translation of judgments and opinions, applications, requests for a preliminary ruling and parties’ submissions. Thus, in the CJEU, the judges will assess independently detailed and often factual evidence, without the assistance of a so-called ‘in house’ expert. An additional context requiring attention in the WTO dispute settlement system is the possibility of having a party that does not participate in the proceedings (primarily because it has no standing) file an amicus curiae brief. The DSU neither prohibits nor expressly authorizes the submission of such briefs by, for example, industry associations, academics or non-governmental organizations. The Appellate Body has accepted that panels and the Appellate Body have the authority to accept amicus curiae briefs.10 In practice, where the Appellate Body accepts such briefs and their submission was timely, it does not consider it necessary to rely on them.11 Those briefs might have a particular legal content. However, there are no rules in the Understanding on Rules and Procedures Governing the Settlement of Disputes (‘DSU’) or the practice of WTO dispute settlement preventing that amicus curiae briefs have (at least in part) a content similar to that of a statement prepared by an expert. The CJEU may receive expert input indirectly but in a separate manner. Under the applicable rules, bodies, offices and agencies of the Union and any other person which can establish an interest in the result of a case submitted to the Court may, subject to certain conditions, intervene in cases before the Court. That right under Article 40 of the Statute of the Court of Justice (‘CJEU Statute’) therefore guarantees that bodies, offices and agencies with a particular expertise may file submissions. However, such an intervention is subject to more constraints compared to those that apply to filing an amicus curiae brief in WTO dispute settlement. Nonetheless, their participation in the process might render it less necessary to rely on external actors for expertise. B. Common Features of the Assessment of Expert Evidence While the procedural rules governing the use and assessment of evidence in proceedings before the CJEU and the WTO dispute settlement system are very different, they nonetheless share a few common features. Firstly, in general, there are few rules on the admissibility of evidence12 and, in particular, expert evidence. Nor is there detailed guidance as to the intensity of the review of evidence or to what is the relevant standard of proof, meaning the quantity and quality of evidence required in order for a party to discharge its burden of proof as regards a particular claim, defence or other argument. In the context of the WTO dispute settlement system, panels ‘should make an objective assessment of the matter before it, including an objective assessment of the facts of the case …’.13 However, in so doing, panels ‘enjoy a certain margin of discretion … in assessing the credibility and weight to be ascribed to a given piece of evidence’.14 They are to ‘… examine and consider all the evidence before it, not just the evidence submitted by one or the other party, and to evaluate the relevance and probative force of each piece thereof’.15 That requirement also means that ‘a panel has a duty … to evaluate the evidence in its totality, even if no piece of evidence is by itself determinative of an asserted fact or claim’.16 Exercise of the EU courts’ jurisdiction does not involve, in every case, an assessment of facts. In fact, a significant number of cases heard by, especially the Court of Justice, concern only questions of law (for example, appeals or requests for preliminary rulings). Where facts are at issue (such as in infringement proceedings), the EU courts might be asked to review the validity of an act of an EU institution involving or taken on the basis of an assessment of detailed facts and requiring a certain degree of expertise. In such circumstances, a degree of deference is shown to the assessment made by the institution. For example, in case of an EU institution having made a complex economic appraisal, the General Court has found that the EU courts’ ‘review of complex economic appraisals made by the Commission is necessarily limited to checking whether the relevant rules on procedure and on stating reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers’.17 The General Court has added that ‘while the [EU Courts] recognise that the Commission has a margin of appreciation in economic or technical matters, that does not mean that they must decline to review the Commission’s interpretation of economic or technical data’.18 Those courts ‘must not only establish whether the evidence put forward is factually accurate, reliable and consistent but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it’.19 Thus, first, similar to what is the case in other international (and regional) courts and tribunals, the CJEU and the WTO dispute settlement system are constrained by few rules in their treatment of evidence. The lack of guidance as to the standard of proof means also that parties, especially in WTO dispute settlement, continue, throughout the proceedings, to file evidence. Even if they have the burden of proof, they cannot know whether their evidence will be deemed inadequate in the light of a non-specified legal standard applied by panels. In the CJEU, there are fewer opportunities for filing evidence and (at least before the Court of Justice, as compared to the General Court) most types of procedure do not require that facts are shown because, for example, the Court of Justice is asked to deliver a preliminary ruling on an interpretative question or exercises appellate review. Secondly, unlike what is the case for party-appointed expert evidence, the rules governing proceedings before the WTO dispute settlement bodies and the CJEU lay down the conditions in which court-appointed experts may be used and the process for their appointment. In contrast, where panels or the CJEU review or simply rely on party-appointed expert evidence, no such detailed rules exist and there is often very little scrutiny of the qualities of the expert and of his opinion.20 In the WTO, the expert appointed by a panel must be ‘independent and impartial’, avoid ‘direct or indirect conflicts of interest’ and respect ‘the confidentiality of proceedings’ before the WTO dispute settlement bodies. Those standards of conduct are laid down in the Rules of Conduct for the Understanding on the Rules and Procedures Governing the Settlement of Disputes (Rules of Conduct).21 Pursuant to those Rules of Conduct, an expert ‘shall not incur any obligation or accept any benefit that would in any way interfere with, or which could give rise to, justifiable doubts as to the proper performance of that person’s dispute settlement duties’.22 Those rules apply to panellists, Appellate Body Members, arbitrators and experts appointed by a panel pursuant to specific provisions of the WTO covered agreements.23 Panels must also guarantee that, throughout the process of appointing and consulting experts, the fundamental guarantees of due process are respected (which include fairness and impartiality in the decision-making process).24 Failure to do so may result in a claim that the panel failed to make an objective assessment of the matter before it and therefore violated Article 11 of the DSU.25 In the context of the review of scientific evidence (used as a basis for SPS measures), the Appellate Body has emphasized that a panel must ‘verify that the scientific basis comes from a respected and qualified source’.26 That scientific basis, whilst not needing to represent the majority view within the scientific community, must ‘have the necessary scientific and methodological rigour to be considered reputable science’ and ‘the views must be considered to be legitimate science according to the standards of the relevant scientific community’.27 Furthermore, a panel is to assess ‘whether the reasoning articulated on the basis of the scientific evidence is objective and coherent’. That means that ‘a panel should review whether the particular conclusions drawn by the Member assessing the risk find sufficient support in the scientific evidence relied upon’ and ‘whether the results of the risk assessment “sufficiently warrant” the SPS measure at issue’.28 Finally, the Appellate Body has stressed that ‘a panel may not rely on the experts to go beyond its limited mandate of review’ and that ‘[t]he purpose of a panel consulting with experts is not to perform its own risk assessment’.29 Panels rarely engage in a similar examination of the impartiality and independence of a party-appointed expert. It would appear that panels will look into those qualities only in the event that the other party contests that the expert satisfies those conditions. Putting aside the question of whether the CJEU is more alike a (supra)national constitutional than an international court, the CJEU has probably the widest jurisdiction among existing international courts, in terms of subject matter, type of procedure and the identity of parties having standing to appear before it. Despite those features and the great number of cases heard by the EU courts, the CJEU does not appear to rely on expert evidence more than, for example, WTO panels. In accordance with Article 25 of the CJEU Statute, the CJEU may at any time ask any individual, body, authority, committee or other organization it chooses to give an expert opinion. Such an expert must take an oath, either in the form laid down in the Rules of Procedure30 or in the manner laid down by the law of the country of the expert.31 An expert may also be heard by the judicial authority of his place of permanent residence, if this is so ordered by the Court (for example, if the expert cannot appear before the Court).32 During the hearings, the Court may examine the experts themselves.33 The Court may prescribe measures of inquiry that it considers appropriate by means of an order setting out the facts to be proved. A measure of inquiry may be the commission of an expert’s report.34 The order appointing the expert is to define the task of the expert and set a time-limit for submitting the export report.35 After the report has been submitted and been served on the parties, Article 70(2) provides that ‘the Court may order that the expert be examined, the parties having been given notice to attend’. According to that same provision, the President of the Court may put questions to the expert, either at the request of one of the parties or of his own motion. The same right is granted to other Judges and the Advocate General.36 Representatives of the parties may also put questions to the expert, subject to the control of the President.37 Parties may object to an expert on the ground that the expert is not a competent or proper person to act as an expert or for any other reason.38 Overall, this process is not unlike the process applied by panels in the event it appoints experts though the procedural rules applicable in WTO dispute settlement are more detailed.39 The Court rarely appoints an expert.40 Among the reasons for this limited use of experts is the fact that the Court applies strict requirements for ordering an expert report as a measure of inquiry. It has been argued that the existing evidence must be deficient or the requesting party must have provided prima facie evidence in favour of its argument.41 Often the Court does not find such a measure of inquiry relevant or necessary. Sometimes the request is dismissed without giving specific reasons.42 Thus, using experts typically presupposes that there is disagreement about issues of fact or that there are questions that lie well beyond the capacities of a court of law.43 Where the CJEU relies on a court-appointed expert satisfying the conditions laid down in the Statute and the Rules of Procedure, it often appears very deferential to that evidence.44 At the same time, where the parties adduce expert evidence, whether and to what extent the CJEU attaches value to such expert evidence may differ greatly depending on the case at issue and whether or not the expert evidence was produced by the EU institutions or agencies or other institutions. 45 4. CONCLUSION The discussions at the symposium suggested that there is a common belief that broad parameters on the use of (expert) evidence before various international courts and tribunals could contribute to rendering dispute resolution before those institutions more transparent and possibly more efficient. It would appear that, for many international courts and tribunals, the challenge lies in designing rules that are sufficiently permissive and flexible but nonetheless result in a more equitable, efficient and transparent method of submitting and assessing expert evidence and (in fact) also other sources of evidence. At the same time, the practice of and rules governing the use of expert evidence before the CJEU and the WTO dispute settlement bodies suggests that a more calibrated treatment of court-appointed experts and party-appointed experts is required. At present, there is a tension between a strict enforcement of the criteria applicable to court-appointed experts and the fact that such criteria are not likewise enforced as regards party-appointed experts. Footnotes 1 See, eg, Chester Brown, A Common Law of International Adjudication (OUP 2007) Chapter 3. 2 This description is not exhaustive. Other contributors to the symposium have identified other functions such as the use of experts as conciliators. 3 See, eg, Panel Reports, China – Measures Related to the Exportation of Various Raw Materials (China – Raw Materials), WT/DS394/R/WT/DS395/R/WT/DS398/R/Add.1 and Corr.1, adopted 22 February 2012, as modified by Appellate Body Reports WT/DS394/AB/R/WT/DS395/AB/R/WT/DS398/AB/R, DSR 2012:VII, 3501, para 7.601; Case T/88/09 DEP Idromacchine Srl vCommission, ECLI:EU:T:2017:5, para 20 (distinguishing between a certificate of accuracy as compared to an expert’s report); and Case T-286/09, Intel Corp, ECLI:EU:T:2014:547, para 194. 4 See, eg, Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/R, adopted 15 July 2011, as modified by Appellate Body Report WT/DS371/AB/R, DSR 2011:IV, 2299, paras 7.709 and 7.710; Appellate Body Report, United States – Countervailing Duties on Certain Corrosion Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 3779, para 157. 5 See, eg, Panel Report, China – Raw Materials, paras 7.84, 7.528 to 7.538; Panel Reports, China – Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum, WT/DS431/R /WT/DS432/R /WT/DS433/R / and Add.1, adopted 29 August 2014, upheld by Appellate Body Reports WT/DS431/AB/R /WT/DS432/AB/R / WT/DS433/AB/, paras 7.169 and 7.178; Joined cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, Ahlström v Commission, ECLI:EU:C:1993:120, paras 75 to 82, 100 to 115, 121 to 125. 6 See, eg, Panel Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R/WT/DS401/R/ and Add.1, adopted 18 June 2014, as modified by Appellate Body Reports WT/DS400/AB/R/WT/DS401/AB/R, para 7.184 and especially fn 245–47. 7 For example, pursuant to art 17.5(ii) of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement), panels are to examine the matter before them based upon ‘the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member’. 8 In WTO dispute settlement, the latter occurs most commonly under the Agreement on the Application of Sanitary and Phytosanitary Agreement (SPS Agreement). See further Cherise Valise, ‘Different forms of expert involvement in WTO dispute settlement proceedings’ (2018) 9 JIDS, this issue; and Marisa Goldstein, ‘Legal Basis and Procedures for Consulting with Experts and International Organisations in WTO Dispute Settlement’ (2018) 9 JIDS, this issue. See also arts 14.2, 14.3 and Annex 2 of the TBT Agreement, arts 19.3, 19.4 and Annex 2 of the Customs Valuation Agreement and arts 4.5 and 24.3 of the SCM Agreement. However, panels may also rely on art 13.2 of the DSU (and Annex 4 to the DSU) which establishes the right of panels to ‘seek information from any relevant source and … consult experts to obtain their opinion on certain aspects of the matter’. Before the CJEU, the specific rules governing court-appointed experts are found especially in arts 25–32 of the Statute of the Court of Justice of the European Union; arts 63 and 70–74 of the Rules of Procedure of the Court of Justice and arts 91 and 96–102 of the Rules of Procedure of the General Court. 9 That is the case regarding, eg, disputes under the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (Customs Valuation Agreement). According to art 19.2 of that agreement, a panel, at the request of a party to the dispute or on its own initiative, ‘may request the Technical Committee [on Customs Valuation, which is a body established under the Customs Co-operation Council] to carry out an examination of any questions regarding technical consideration’. Art 19.4 adds that ‘the panel shall take into consideration the report of the Technical Committee’. Another expert body is the Permanent Group of Experts established pursuant to art 24(3) of the Agreement on Subsidies and Countervailing Measures (SCM Agreement). That is a body composed of five independent persons, highly qualified in the fields of subsidies and trade relations, which may be asked to assist a panel as regards the question of whether a measure at issue is a prohibited subsidy. Art 4(5) of the SCM Agreement provides that the Group’s conclusions on that question ‘shall be accepted by the panel without modification’. 10 See Appellate Body Reports, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 2755, para 91 and United States – Imposition of Countervailing Duties on Certain Hot Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/AB/R, adopted 7 June 2000, DSR 2000:V, 2595, para 42. 11 See, eg, Appellate Body Reports, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (Recourse to Article 21.5 by Mexico), WT/DS381/AB/RW, adopted 3 December 2015, fn 68 and European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R / WT/DS401/AB/R, adopted 18 June 2014, para 1.15. 12 Where WTO law applies specifically to domestic investigations and the panel is therefore not the first trier of facts, panels and the Appellate Body have articulated relatively clear rules on, especially, the admissibility of evidence and standard of proof. Examples include the rule that ‘a Member may not seek to defend its agency’s decision on the basis of evidence not contained in the record of the investigation’ (Appellate Body Report, United States – Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea, WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, 8131, para 161). 13 DSU, art 11. 14 Appellate Body Report, United States – Continued Existence and Application of Zeroing Methodology (‘US – Continued Zeroing’), WT/DS350/AB/R, adopted 19 February 2009, DSR 2009:III, 1291, para 331. 15 ibid. 16 ibid para 336. 17 General Court, Case T-201/04 Microsoft CorpvCommission, ECLI:EU:T:2007:289, para 87. 18 ibid para 88. 19 ibid para 89. 20 Relevant is also that the CJEU sometimes indirectly considers the value of expert evidence used by a party in the context of an order on costs. See, for example, Case T/88/09 DEP Idromacchine Srl vCommission, ECLI:EU:T:2017:5, para 18 (‘it is clear from the case-law that, in cases involving findings of an essentially economic nature, the involvement of economic advisers or experts in addition to the work of legal advisers may sometimes prove necessary …’) and the case-law cited. 21 Adopted by the DSB on 3 December 1996 (WT/DS/RC/1), II. Governing Principle. See also Appellate Body Reports, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R, adopted 14 November 2008, DSR 2008:X, 3507/ Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS321/AB/R, adopted 14 November 2008, DSR 2008:XIV (US – Continued Suspension / Canada – Continued Suspension), 5373, para 435. 22 Appellate Body Report, US – Continued Suspension / Canada – Continued Suspension, para 482. 23 Rules of Conduct, IV. Scope. Those provisions are arts 13.1 and 13.2 DSU; art 4.5 of the SCM Agreement; art 11.2 of the SPS Agreement; and arts 14.2 and 14.3 of the TBT Agreement. 24 Appellate Body Report, US – Continued Suspension / Canada – Continued Suspension, para 436. 25 ibid IV. Scope. Those provisions are arts 13.1 and 13.2 DSU; art 4.5 of the SCM Agreement; art 11.2 of the SPS Agreement; and arts 14.2 and 14.3 of the TBT Agreement. 26 Appellate Body Report, US – Continued Suspension / Canada – Continued Suspension, para 591. 27 ibid para 591. 28 ibid. 29 ibid para 592. 30 Art 71(2) of the Rules of Procedure states that the Court may, after hearing the parties, exempt the expert from taking the oath. 31 CJEU Statute, art 28. 32 ibid art 29, first paragraph. In such circumstances, the Court’s order is sent for implementation to the competent judicial authority under the conditions laid down in the Rules of Procedure. The documents drawn up in compliance with the letters rogatory are to be returned to the Court under the same conditions. 33 ibid art 32. 34 Rules of Procedure of the Court of Justice, art 64(2). 35 ibid art 70(1). 36 ibid art 70(3). 37 ibid art 70(4). 38 Ibid art 72(2). 39 Compare, with, for example, the Wording Procedures adopted in Indian – Agricultural Products, WT/DS430/R/Add.1/(Annex A-1), paras 19–31. See further Cherise Valise, ‘Different forms of expert involvement in WTO dispute settlement proceedings’ (2018) 9 JIDS, this issue; and Marisa Goldstein, ‘Legal Basis and Procedures for Consulting with Experts and International Organisations in WTO Dispute Settlement’ (2018) 9 JIDS, this issue. 40 Joined cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, Ahlström v Commission, ECLI:EU:C:1993:120, paras 31 and 32; Case T-169/89 Frederiksen v European Parliament, ECLI:EU:T:1991:69, paras 38–48. 41 Eric Barbier de la Serre and Anne-Lise Sibony, ‘Expert evidence before the EC courts’ (2008) 45 CMLR 941, 949. 42 See, eg, General Court, Case T-199/01, G v. Commission, ECLI:EU:T:2002:271, para 61. See, more generally, ‘Expert evidence before the EC courts’ (n 41) 944. 43 Eg, in Woodpulp, the Court decided, by order of 25 November 1988, to obtain an expert report. The experts were appointed by order of 16 March 1989. The expert report was submitted on 10 April 1990. The Court then decided, by order of 25 October 1990, to ask for a second report and appointed the experts by that same order. That second report was submitted on 11 April 1991. 44 See, eg, Joined cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, Ahlström v Commission, ECLI:EU:C:1993:120; Case T-169/89 Frederiksen v European Parliament, ECLI:EU:T:1991:69, paras 73 and 74. 45 In this context, it is relevant that the Court will not always summarise in its judgments the arguments and evidence presented by the parties. It is therefore not always clear whether expert evidence on which the Court relies was presented to it by a party or found by the Court of its own motion. See, eg, Case C-477/14 Pillbox 38, ECLI:EU:C:2016:324, para 51. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. 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Alvarez, José E

2018 Journal of International Dispute Settlement

doi: 10.1093/jnlids/idy015

Abstract This essay uses a prominent ICSID arbitral ruling to explore the prospects for developing ‘best practices’ for handling expert evidence in international adjudication. It argues that the treatment of evidence responds to institutional context and explains why investor-state arbitrations take a lax approach to admitting and relying on many forms of expertise. Their penchant for relying on experts—including legal experts opining on matters familiar to the arbitrators—casts doubt on the proposition that experts should testify only with respect to scientifically provable matters that are beyond the ken of adjudicators. 1. INTRODUCTION A number of participants at the conference that launched the essays in this Journal have argued in favour of general rules or a common framework of ‘best practices’ for dealing with scientific evidence in international adjudication. This appears to respond to the perceived risks of ‘fragmentation’ among today’s diverse international courts and tribunals. Coherent substantive jurisprudence is seen as more likely if common rules were to develop with respect to the use of experts in all such forums. It was proposed that such rules should be built around a consensus, first, that ‘law ascertainment’ should be clearly distinguished from both fact-finding and the use of ‘scientific evidence’.1 Secondly, it was suggested that this demarcation of tasks should define the roles of participants in international adjudication. Consistent with the principle of iura novit curia, arbitrators or judges are said to be entrusted with the exclusive prerogative to engage in law ascertainment; similarly, only they can identify, clarify or interpret the law to be applied and apply that law to the facts.2 While the litigants frame legal claims and develop legal arguments, adjudicators, not counsel, determine the law. Ordinary witnesses, not to be confused with those with specialized knowledge known as experts, only make representations about the veracity of facts. Experts, who do not engage in the ascertainment of law or in the establishment of ordinary facts, also do not: opine on conflicting legal rules or facts presented by the litigants, resolve conflicts among other evidence (such as those presented by non-litigating governments or other experts), assist the tribunal in selecting facts not subject to proof,3 address the relative weight of evidence, or authenticate evidence.4 While scientific experts might be used, for example, to help determine whether a document is forged; authentication—like all determinations of fact, law, and the application of one to the other—are ultimately matters for the adjudicator who, consistent with the rule of law, should not ‘out-source’ this role to others. Under this strictly delimited role (with which this author disagrees as discussed below), experts are properly deployed only to assist an adjudicator’s understanding of matters that, due to their technical or specialized nature, are beyond their ken. In this view, scientific experts play a decidedly restrictive role: they help non-experts in the litigation, most importantly the adjudicators, to understand the structure and behavior of the ‘physical and natural world’ through the application of accepted scientific methods such as observation and experiment.5 The need to make sure that expert evidence is ‘scientifically responsible’ may itself determine what is meant by a ‘scientific expert’. If such experts are limited to those who deploy methods of the type and rigor deployed in the hard sciences, that alone serves to distinguish them from those who opine on other matters (such as the quantum of damage or the requirements of the law) who do not use such methods.6 This essay examines the extensive use of expert evidence in the ICSID Award in Philip Morris vUruguay to indicate how experts are actually being used in investor-state dispute settlement (ISDS), one of the most prominent forums for resolving international disputes. As of the end of 2016, over 700 known investor-treaty arbitrations had been initiated, thereby rivaling the numbers of interstate claims pursued in the WTO and exceeding those heard by the ICJ.7 If ‘best practices’ with respect to expert evidence are to emerge, it is important to know what such practices now are among high profile investor-state cases, such as Philip Morris vUruguay. 2. THE USE OF EXPERTS IN PHILIP MORRIS V URUGUAY This highly publicized dispute, one of a number involving challenges to tobacco control measures being heard before ICSID tribunals as well as in the WTO,8 addressed a complaint brought by Philip Morris, a Swiss company, along with its wholly owned Uruguayan subsidiary, Abal, against the government of Uruguay under the Swiss-Uruguayan BIT of 1991.9 The claimants argued that Uruguay had violated the BIT’s Article 3(1) (barring impairment of the use and enjoyment of investments), 3(2) (guaranteeing fair and equitable treatment and prohibiting denials of justice), 5 (providing for compensation in cases of expropriation), and/or 11 (granting observance of commitments), by precluding tobacco manufacturers from marketing more than one variant of cigarette per brand family (Uruguay’s ‘Single Presentation Requirement’ or ‘SPR’), by increasing the size of graphic health warnings appearing on the front and back of cigarette packs to 80%, leaving only 20% for trademarks and other information (its ‘80/80 regulation’), and by the treatment accorded the claimants in Uruguayan courts. Philip Morris argued that the SPR adversely impacted the value of its subsidiary and that the 80/80 regulation wrongfully limited Abal’s right to use its legally protected trademarks, a form of protected investment.10 The claimants further argued that two Uruguayan courts, the Supreme Court of Justice and the Tribunal de lo Contencioso Administrativo (TCA), denied justice to them insofar as the two rendered unreviewable, contradictory rulings and because the TCA had ignored certain proffered evidence.11 Uruguay defended its actions as non-discriminatory measures taken to protect public health consistent with its international commitments, particularly the WHO Framework Convention on Tobacco Control (FCTC). It argued that it adopted the SPR to mitigate the adverse effects of tobacco promotion (including misleading marketing suggesting that certain brand variants were ‘safer’) and its 80/80 regulation to increase consumer awareness of the health risks of smoking.12 By majority vote, the three person ICSID tribunal, consisting of Chair Piero Bernardini, Gary Born and James Crawford, dismissed all the investors’ claims and awarded Uruguay $7 million to cover part of its costs in the litigation. Arbitrator Born, concurring with much of the award, dissented on two aspects. He would have upheld the claim for denial of justice based on the ‘contradictory’ actions of the two Uruguayan courts as well as the claim that the SPR was a manifestly arbitrary and disproportionate measure in violation of the BIT’s FET provision.13 The Morris dispute relied heavily on evidence presented by ordinary witnesses as well as distinct ‘experts’, including experts on law, on the marketing of cigarettes and on public health. In accordance with the governing ICSID arbitration rules, the arbitrators enjoyed wide discretion on the treatment of evidence.14 In accordance with those rules, which differentiate the affirmations made by ordinary witnesses and experts, the Morris ruling distinguished ‘witness’ from ‘expert’ reports—while relying heavily on both throughout and not suggesting any general rule about the relative weight to be accorded each.15 Like a number of ISDS cases, the dispute generated considerable public interest and elicited amici from the WHO (joined by the Secretariat of the FCTC) as well as by the Pan American health Organization (PAHO), both in support of Uruguay’s position. Although not classified as such by the tribunal, the WHO/FCTA and PAHO briefs were treated as a form of expert evidence; as discussed below, the tribunal treated both amici as evincing public health expertise. The Morris tribunal first made reference to expert testimony for purposes of describing the domestic regulatory framework. It next turned to experts, as well as ordinary factual witnesses, to resolve disputed questions over Uruguay’s motivations for its tobacco control measures and their effects on consumers. In the face of conflicting evidence on the impact of Uruguay’s measures,16 the tribunal drew on the WHO/FCTC and PAHO briefs for its conclusion that Uruguay’s SPR and 80/80 measures were supported by the ‘international public health community’ and relate (if modestly) to ‘consistent decreases in smoking’ in that country.17 Suggestions made by the amici that the SPR was grounded in a substantial body of evidence and that the 80/80 regulations were reasonable and responsible responses to deceptive advertising practices in the industry were relied upon by the tribunal to rebut the contention that the challenged measures were ‘arbitrary’.18 The tribunal majority found a connection between the objective pursued by the state and the utility of the two measures because, in part, this had been ‘recognized by the WHO and the PAHO Amicus Briefs, which contain a thorough analysis of the history of tobacco control and the measures adopted to that effect.’19 In response to the claim that Uruguay’s measures did not enhance knowledge about the well-known health risks of smoking, the tribunal cited empirical evidence to the contrary from other experts, including ‘numerous scientific studies’ cited by the US Surgeon General and the US National Cancer Institute.20 In response to the claim that Uruguay did not conduct its own scientific studies of the effects of its tobacco control measures, the tribunal again resorted to the WTO/FCTC and PAHO amici which indicated that Uruguay had been one of the most active FCTC participants, by way of suggesting that a country with limited technical and economic resources was entitled to rely on the exchange of ‘evidence-based’ public information generated by resources like the FCTC and its Guidelines.21 The views of tobacco control experts, particularly those within the WTO/FCTC and PAHO, were similarly determinative on whether Uruguay’s two measures were otherwise a violation of FET.22 Although Uruguay’s SPR measure had not been the subject of prior research concerning its effects, the tribunal found it not to violate the FET because, ‘as held by the WHO, “the rationale for this action [was] supported by the evidence’.23 Acknowledging that marketing data on the effects of the SPR was ‘discordant’, the majority found that it was not necessary to decide whether the SPR had the effects intended but only whether it was ‘reasonable’ for Uruguay to so assume.24 Consistent with respondent’s experts and the WHO/FCTA and PAHO amici, the majority found that the SPR ‘was an attempt to address a real public health concern, that the measure was not disproportionate to that concern and that it was adopted in good faith’.25 Its finding on the 80/80 regulation was nearly identical except that in that instance the tribunal was also able to rely on marketing experts who indicated that the increased size of health warnings appeared to relate to increased numbers of consumers inclined to quit smoking.26 Accordingly, the tribunal found that the 80/80 measure was ‘adopted in good faith to implement an obligation assumed by the State under the FCTC’.27 Experts who opined on national and international law were repeatedly deployed. The litigants turned to experts on intellectual property law to address the allegedly distinctive character of registered trademarks and to opine on whether the TRIPs Agreement or Uruguayan law protects the right to ‘use’ trademarks. Such experts also addressed whether such rights constitute ‘property’ that can be subject to ‘expropriation’.28 The tribunal heavily relied on what it perceived to be common ground among these experts, relying on them to conclude that while neither Uruguayan nor international law confers, on a trademark holder, an absolute right of use, that law confers an exclusive right to exclude third parties sufficient to constitute ‘property’ under the BIT.29 But, again relying on Uruguayan law experts, the tribunal ruled that that law protected only the ‘modalities’ of the use of trademarks. This was essential to its conclusion that limiting trademarks to only 20% of cigarette packs did not have a sufficiently ‘substantial’ impact to constitute a taking of property.30 Accounting experts were crucial to the tribunal’s determination that the SPR requirement did not substantially deprive the claimants of Abal’s business.31 The tribunal also relied on experts on the Uruguayan Constitution to conclude that the government had a ‘duty to protect public health’ that included, consistent with international police powers, the right to ‘prevent, limit or condition’ the use of tobacco trademarks.32 The same evidence concerning the rights of the Uruguayan state led to its conclusion that the claimants did not have their ‘legitimate expectations’ or interests in a stable legal framework violated.33 Prominent international lawyers—Stephen Schwebel, Jan Paulsson, Christopher Greenwood and Nico Schrijver—presented evidence on behalf of the respective parties on the meaning and contents of ‘denials of justice’. They opined on which party bears the burden of proof, whether such denials require demonstration of bad faith or malicious intent, how such denials comport with the BIT’s FET obligation and/or customary international law, and whether such claims require exhaustion of local remedies. The tribunal’s majority opinion emphasized that while the arbitrators were in broad agreement with how the denial of justice had been defined by the claimant’s experts, it indicated, citing to Greenwood’s expert opinion, that a denial of justice requires ‘clear evidence of … an outrageous failure of the judicial system’,34 but that, in accordance with Schrijver’s second expert opinion, ‘grave procedural errors’ may result in such a denial.35 It also agreed with Schrijver that claimants must show that they have exhausted local remedies or that such remedies are ‘obviously futile’.36 On the application of the law to the facts, the tribunal ultimately sided with the respondents’ experts who argued that no denial of justice had occurred since the two Uruguayan courts’ rulings were directed at distinct purposes, did not issue ‘contradictory’ rulings requiring a distinct remedy to reconcile them, and that these were features of the civil law tradition.37 The tribunal majority also found no error in the TCA’s failure to admit Abal’s submission of expert opinions by three prominent Uruguayan law experts. Relying, ironically enough, on the testimony of an expert on Uruguayan law, the Morris tribunal found the rejection of such testimony proper because: under Uruguayan procedural law, expert opinions on matters of law are not considered ‘expert evidence.’ To be considered evidence rather than assertions of a party, the expert opinion must relate to a question of fact and not a question of law and must have been prepared pursuant to an order of the court, neither of these requirements being met in this case. The TCA may disregard expert legal opinions not meeting these requirements. The Tribunal finds Professor Pereira’s opinion persuasive, as evidence also by his cross-examination at the Hearing making reference, inter alia, to the iura novit curia principle as the basis for disregarding expert legal opinions.38 This was a decidedly paradoxical twist for a tribunal that itself relied so heavily on legal experts in contradistinction from the iura novit curia principle. Gary Born’s separate concurring and dissenting opinion did not reject the admission of expert testimony in the case.39 Indeed, while Born’s shorter opinion does not often cite to expert testimony, his dissent on the majority’s findings on denial of justice also relies on the views of Uruguayan law experts.40 Further, Born’s dissenting view that the SPR violates Uruguay’s obligation to provide fair and equitable treatment elevates the significance of expertise for both a respondent state and an ICSID tribunal. Born disputes some of the conclusions reached in the WHO/FCTC and PAHO submissions; he does not agree that reputable scientific evidence supports banning all but one variant of a cigarette brand. To Born, the fact that the SPR was not ‘preceded by any meaningful internal study, discussions or deliberations at the Ministry of Public Health, or by other Uruguayan authorities’41 means that no deference is appropriate for a government measure that was an ‘unreflective directive, issued very hastily and without checks and validation that internal study and discussion and/or external notice and consultation provide’.42 In Born’s view, Article 3(2) of the BIT, and the ‘related requirements of reasonableness and proportionality, require an objective consideration of the extent to which a governmental measure is rationally related to, or fairly advances, the state’s articulated objectives’.43 He finds the SPR to be a blunt, over-inclusive and under-inclusive measure not supported by any real scientific or objective evidence indicating that brand variations alone, independent of the use of colors or labels indicating whether a product is ‘light’ or ‘low tar’, mislead consumers.44 3. WHAT ARE WE TO MAKE OF THE USE OF EXPERTS IN PHILIP MORRIS? The arbitrators’ use of experts in Philip Morris only gives lip service to some of the proposed ‘best practices’ indicated at the outset of this essay. The Philip Morris arbitrators did not formally delegate the ‘law ascertainment’ or ‘fact-finding’ function to experts but various experts in the case repeatedly opined about both national and international law and did not hesitate to draw the mixed law/fact conclusions that came exceedingly close to those that the tribunal itself was tasked with resolving. The Philip Morris tribunal, like most ISDS tribunals, did not apply the iura novit curia principle to disqualify legal experts (as would, apparently, Uruguayan courts). It treated testimony on national or international law as just another kind of evidence to be suitably weighed, with no indication of whether it was entitled to little weight or on the contrary, particular deference. Legal experts, along with health care professionals, accountants and specialists on both the marketing of tobacco and its control, opined on conflicting legal rules and purported to resolve conflicts among the considerable other evidence presented; endeavored to assist the tribunal in selecting from the available facts or evidence; and/or expressed views on the burdens of proof along with the weight of other evidence relative to applicable legal standards. All the arbitrators relied, sometimes heavily, on the various forms of expert evidence presented. Apart from demarcating ordinary ‘witness’ from ‘expert’ evidence, the tribunal did not clearly distinguish ‘fact-finding’ from ‘law ascertainment’ or mark either as exclusively its own domain.45 Uruguayan law experts expressed views about whether that law extended the ‘police power’ to protect health, protected the ‘use’ of trademarks, considered trademarks ‘property’, or enabled ‘contradictory’ decisions by national courts. International law experts opined on the meaning or import of international intellectual property law, the interpretation of FET and ‘arbitrary’ treatment, and the requisites of and burdens of proof applicable to denials of justice under customary international law. Such testimony was embraced if the tribunal thought it useful. Like other ISDS tribunals, the majority in Morris did not limit experts to giving evidence on the ‘physical and natural world’ gathered under accepted scientific methods such as observation and experiment as some would propose. Like other ISDS tribunals, it relied on experts even when they appeared to address topics well-known to the arbitrations (such as the requisites of denial of justice). Given the evidentiary practices of ISDS tribunals like Morris, what is one to make of proposals to use experts only to explain scientifically provable facts of the physical/natural world? US scholars of evidence can be forgiven if such proposals seem reminiscent of the turn, in US jurisprudence, from the Frye to the Daubert standard for deciding the admissibility of expert testimony. Under Frye vUnited States, US federal courts were instructed to find expert witness testimony inadmissible unless the principle on which they were testifying had gained ‘general acceptance’ within the scientific community.46 In Daubert vMerrell Drew Phamarceuticals, the US Supreme found this insufficiently rigorous. Interpreting the federal rules of evidence requiring relevancy and reliability, the Daubert Court found that expert testimony must ‘help the trier of fact to understand the evidence or determine a fact in issue’ and that to be properly admissible expert evidence should be the product of the ‘scientific method’. Under Daubert and subsequent cases involving ‘technical’ evidence and not only ‘scientific’ evidence, federal judges were urged to consider for purposes of admitting expert testimony whether there is evidence that the expert’s technique or theory can be tested in some objective sense or whether it is simply a subjective, conclusory approach that cannot be reasonably be assessed for reliability; whether the technique or theory has been subject to peer review and publication; what is the known or potential rate of error of the technique or theory when applied and whether there were standards and controls; as well as whether the technique or theory has been ‘generally accepted’ in the scientific community.47 This has come to be known as the ‘Daubert test’ for expert evidence. The evidence of neither the legal experts in the Morris case nor its ‘technical’ ones were subjected to the US-styled Daubert test. While some experts purportedly addressed the ‘physical and natural world’ (such as market research evidence on the effects on consumers of tobacco control efforts or professional estimates of the financial worth of Abal’s business), a considerable amount of expert evidence in that case addressed more subjective intangibles. Some drew conclusions about whether Uruguay was acting consistently ‘with the history of tobacco control efforts’ and therefore, in ‘good faith’, while others opined about whether the challenged measures were ‘proportionate’ or could be reasonably seen as ‘effective’. Strikingly, the amici on which the majority most strongly relied was in the form of non-party briefs that was not subjected to testing by the tribunal itself (as through cross-examination). And yet those views, expressed by public health or tobacco control experts, as well as those by a number of legal experts, were crucial to the tribunal’s own conclusions that the challenged measures were a valid good faith exercise of Uruguay’s ‘police powers’ for the protection of public health, were not disproportionate, and were not ‘arbitrary and unnecessary’ but ‘effective means to protecting public health’.48 Born, in dissent, seemed to be the arbitrator who appeared most influenced by the US-styled Daubert test. Born argued that Uruguay was wrong to delegate the scientific method to others; he argued that it was required, under FET, to itself test the assumptions underlying its SPR measures through scientific observation and experiment. Born essentially argued that the absence of scientific evidence to justify SPR violates FET, like Uruguay’s failure to provide a method to resolve directly contradictory judicial rulings, constitutes a denial of justice. Nonetheless, as Born’s other conclusions suggest (including his concurrence with the majority’s views on the 80/80 regulations), even he did not endorse a general rule that would limit the use of experts to those who would satisfy Daubert-styled tests. 4. PHILIP MORRIS AS EMBLEMATIC OF OTHER ISDS RULINGS While the sheer amount of expert evidence in Philip Morris was unusual, the kinds of expertise deployed by the parties, the manner in which law and fact merged, and the extent of the tribunal’s reliance on experts was not unique to that dispute. Many ISDS litigants (and ISDS tribunals) have turned to legal experts for assistance in determining the meaning of both national and international law.49 The meaning of all the traditional BIT guarantees have been the subject of innumerable expert opinions filed by international legal scholars, many of which have been cited by arbitrators.50 Most ISDS tribunals have also turned to marketing, accounting, or other industry-specific experts to assist them with respect to both factual and legal conclusions, including to determine whether a claimant suffered damage and if so to what extent. Insofar as the author is aware, there has not been a successful objection to evidence in these cases based on the contention that law ascertainment and related matters involve, as two ICJ judges have suggested, ‘exclusively judicial functions, such as the interpretation of legal terms, the legal categorization of factual issues, and the assessment of the burden of proof’.51 Insofar as the author knows, no ISDS award has been annulled on the basis that arbitrators have relied on experts presenting evidence on the contents of national or international law. On the contrary, one ICSID annulment committee annulled one of the Argentine rulings on the basis, in part, that the original panel had relied on the evidence of economists or financial experts and not the evidence of legal experts to determine whether Argentina properly satisfied the requisites of the ‘necessity’ defense.52 The acceptance and treatment of expert evidence might be seen as a further indictment of ISDS. It might add further fuel to oft-stated complaints that investor-state arbitrations wrongly empower party-appointed partisans who generate inconsistent treaty interpretations, fact-finding and outcomes.53 One could argue that investor-state arbitrators need greater direction and guidance than is now provided by, for example, the perfunctory ICSID rules concerning the admission of evidence. Some might see the sharp difference between the majority and Born in the Morris case as demonstrating that the relevant arbitral rules allocate too much discretion to arbitrators with respect to fact-finding, particularly since, once such facts are found, they are hard to review or displace. 5. THREE TENTATIVE CONCLUSIONS Putting those ISDS-specific concerns aside, three more general, albeit tentative, conclusions emerge. First, one might draw from the ISDS experience the lesson that although it may be analytically useful to distinguish law ascertainment, ordinary fact-finding, and the use of ‘scientific’ experts, in the real world of litigation, these categories are contestable and blur.54 This is certainly true insofar as national courts (and national evidentiary rules) differ on whether expert testimony on ‘foreign’ or international law engages matters of ‘fact’ or ‘law’. Such national laws and evidentiary traditions also differ on whether to define admissible ‘experts’ as only those who testify as to tangible facts grounded in ‘testable’ methods comparable to those applied under the scientific method. Secondly, the ways evidence is deployed in ISDS suggests that the handling of expert evidence is likely to vary with the peculiar institutional features of the adjudicative forum, including its procedural rules. A tribunal like the WTO Appellate Body, which can only address erroneous rulings of law, necessarily encourages reports by the WTO’s underlying panels that are particularly attentive to making law/fact distinctions. Arbitrations like those of ICSID that require distinct affirmations from ordinary and expert witnesses but otherwise leave evidentiary determinations to the discretion of the arbitrators and are subject to minimal forms of appeal rely on the laxer approach to such distinctions and to the admission of evidence evident in Philip Morris. The way evidence is used in ISDS suggests that institutional context matters. It suggests caution before assuming that the evidentiary practices (and premises) applicable in the ICJ should be applied to WTO panels and its Appellate Body, the International Criminal Court, regional human rights courts or investor-state arbitrators under distinct arbitration rules—or that a single set of ‘best practices’ can be applied to all of these. As the Philip Morris tribunal’s refusal to adopt for itself the principle of iura novit curia as applied in Uruguay courts suggests, caution also needs to be exercised about exporting the evidentiary practice of national courts (whether under the common law or civil law) to international courts or tribunals. Thirdly, although it is generally assumed that experts are used only to supply information that adjudicators do not possess or is that is beyond their expertise, cases like Philip Morris suggest that the reality of how experts are used in the course of adjudication is more complicated. Much of the expert evidence admitted and relied upon in that case addressed matters well within the ken of its learned arbitrators. Arbitrators like the three arbitrators involved in Philip Morris (who included a current ICJ judge) are representative of those who generally adjudicate investor-state disputes.55 Eminent adjudicators like these scarcely need lessons in the basic elements of the civil law or the subtleties of arbitrary treatment, FET or denial of justice. The arbitrators in Philip Morris could judge, at least as well as those who drafted the WHO/FCTC and PAHO briefs, which tobacco control measures are authorized by the FCTC Guidelines and the resulting legal implications. And yet, the Morris tribunal heard (and appeared to generally embrace) expert evidence on all of these topics. This suggests that expert evidence in cases like Philip Morris is valued not only because it fills gaps in expertise. It is admitted and used—as the Philip Morris tribunal itself suggested—because it is seen as relatively ‘objective’. Evidence as to both facts and the law such as that presented by tobacco control experts or legal scholars were accorded close scrutiny and (often) great weight because it appeared to contain knowledge or data that had some independent standing from either the parties or the tribunal—and not because (or only because) it supplied ‘scientific’ or technical data unfamiliar to lawyer-adjudicators.56 Expert evidence in Philip Morris and other ISDS cases is accepted and used insofar as it reflects, as the ICSID affirmation for experts requires, the ‘genuine beliefs’ of persons with some independent credibility because of their institutional affiliations, academic reputations, or simply considered judgment. This seems paradoxical. Aren’t ICSID arbitrators the bearers of objectivity, like all national and international judges? Why should they need to buttress (or out-source) this quality, including to experts named by the parties or to organizations disposed to a given outcome (such as tobacco control)? Those now criticizing ISDS for its alleged ‘biases’ may have answers. Perhaps the demand for objective information—and for its objective evaluation—exceeds that which can be supplied by party-appointed arbitrators in ad hoc tribunals that are increasingly subject to legitimacy deficits (real or imagined). It appears that ISDS tribunals’ appetite for expert evidence of all kinds is part and parcel of a ceaseless (if perhaps futile) quest for objectivity. Footnotes 1 Jean d’Aspremont and Makane Moïse Mbengue, ‘Strategies of Engagement with Scientific Fact-Finding in International Adjudication’ (2014) 5 J Intl Dispute Settlement 240. 2 ibid. 3 See eg, Durward V Sandifer, Evidence Before International Tribunals (Revised ed, University of Virginia 1975) 382–402 (discussing factual propositions that are subject to judicial notice). 4 See James Flett, ‘When is an Expert not an Expert?’ (2018) 9 JIDS. 5 See, eg, Jean d’Aspremont and Makane Moïse Mbengue, ‘Strategies of Engagement with Scientific Fact-Finding in International Adjudication’ (2014) 5 JIDS 240–72. 6 But see discussion of Kumbo Tire vCarmichael (n 45 infra) where the US Supreme Court expanded the definition of ‘scientific’ experts to include those with merely ‘technical’ expertise. If one rejects that Court’s view, quantum experts, for example, might not be included as ‘scientific experts’. 7 Compare Jonathan Bonnitcha, Lauge N Skovgarrd Poulsen, and Michael Waibel, The Political Economy of the Investment Treaty Regime (OUP 2017) 25 Figure 1.7 (numbers of ISDS arbitrations) to Karen J Alter, The New Terrain of International Law (PUP 2014) 72–75 Figure 3.1 (numbers of rulings issued in other international courts and tribunals). 8 See, eg, Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS467/22 (21 September 2017). 9 Philip Morris Brands Sàrl, Philip Morris Products SAand Abal Hermanos SAvOriental Republic of Uruguay, ICSID Case No ARB/10/7, Award (8 July 2016) (henceforth ‘Morris’). 10 ibid, paras 10–11. 11 ibid, para 483. 12 ibid, para 13. 13 Philip Morris Brands Sàrl, Philip Morris Products SAand Abal Hermanos SAvOriental Republic of Uruguay, ICSID Case No ARB/10/7, Concurring and Dissenting Opinion of Gary Born, paras 4–5 (henceforth ‘Born opinion’). 14 The ICSID Arbitration Rules, like those applicable to other arbitral settings, contain few limits on the powers of arbitrators with respect to the admission or weight to be given evidence. See, eg, ICSID Rules of Procedure for Arbitration Proceedings (‘ICSID Arbitration Rules’) (April 2006) r 34, which contains an open delegation of authority to ICSID arbitrators to ‘be the judge of the admissibility of any evidence adduced and of its probative value’. Those rules do not direct the arbitrators to apply any particular standard of proof to distinct forms of evidence nor any suggestion that the evidentiary rules of the arbitral forum should apply. 15 ICSID Arbitration Rule 35. That rule provides that witnesses need to make the following declaration before giving evidence ‘I solemnly declare upon my honour and conscience that I shall speak the truth, the whole truth and nothing but the truth’. Experts, however, must state ‘I solemnly declare upon my honour and conscience that my statement will be in accordance with my sincere belief’. 16 Much of this evidence was in the form of ‘market research’. See, eg, Morris (n 6), para 331 (noting the claimant’s marketing experts’ evidence that the level of tobacco consumption did not decrease as a result of the SPR); para 337 (citing the claimants’ expert reports indicating no evidence that the introduction of larger health warnings, as under the 80/80 regulation, increased awareness of smoking risks or reduces tobacco consumption). But the tribunal did, on occasion, rely heavily on market specialists such as Euromonitor. See, eg, ibid, paras 149–51 (drawing on Euromonitor data to contend that Abal’s market share of the Uruguayan market was adversely affected by the introduction of the SPR and to suggest that Uruguay’s two measures increased the level of illicit trade in cigarettes). 17 See, eg, ibid, paras 141–2. See also, para 306. See also Written Submission (Amicus Curiae Brief) by the World Health Organization and the WHO Framework Convention on Tobacco Control Secretariat, 28 January 2015, submitted in Morris (n 9), paras 25–27, 39–40 [henceforth ‘WHO/FCTC Amicus’]. 18 Morris (n 9), para 371. See also, para 391 (quoting some of the WHO/FCTC and PAHO conclusions cited by the respondent). 19 ibid para 391. 20 ibid para 392. 21 ibid paras 393–4. See also, para 396 (concluding that ‘in these circumstances there was no requirement for Uruguay to perform additional studies or to gather further evidence in support of the Challenged Measures’). 22 ibid, para 401 (citing the FCTC as ‘a point of reference on the basis of which to determine the reasonableness of the two measures’). 23 ibid, para 407 (quoting the WHO/FCTC Amicus). See also WHO/FCTC Amicus (n 14), para 90 (concluding that the evidence ‘supports the conclusion that the Uruguay’s measures in question are effective means of protecting public health’). 24 ibid paras 408–09. 25 ibid para 409. 26 ibid para 417. 27 ibid para 420. See also, paras 418–19. 28 ibidparas 202–09 (claimants’ use of intellectual property experts); paras 222–34 (respondent’s use of experts to rebut the claim that intellectual property recognizes a right to use); paras 235–74 (evaluating the competing experts’ claims on whether the relevant law (national and international) confers a right to ‘use’ and whether, irrespective of that, a trademark is a ‘property right’ under Uruguayan law that can be judged as an ‘expropriation’). 29 ibid para 271; paras 272–4. 30 ibid para 276. A comparable analysis, presumably also influenced by the underlying expert evidence on what Uruguay law protects, appears to underlie the tribunal’s conclusion that the trademarks were not ‘commitments’ protected by art 11 of the BIT. ibid, paras 473–82. 31 ibid paras 281–6. 32 ibid para 302 (quoting from one of the Respondent’s experts). 33 ibid paras 432–4. 34 ibid para 500. 35 ibid para 501. 36 ibid para 403 (quoting Schrijver’s opinion). 37 ibid paras 522–4; paras 529–30. The majority also drew support from the ECtHR ruling in Jejdet Sahin & Perihan Sahin vTurkey. ibid, para 531, fn 755 (acknowledging that its reliance on the Nejdet case was drawn from Schrijver’s second expert opinion). See also ibid, para 533 (citing in further support for its conclusion Paulsson opinion that ‘the vagaries of legal culture that enrich the world are to be respected’). 38 ibid, para 564. 39 Indeed, Born agreed with the majority with respect to Uruguay’s 80/80 regulation, including presumably the majority’s reliance on legal and other experts for its conclusions. Born opinion, para 1. 40 Born opinion, paras 14–16, fn 10–17; para 32, fn 31; para 34, fn 34. Born also relies heavily on legal experts to support his conclusion that Abal had indeed exhausted its local remedies. See Born opinion, para 37, fn 40; para 38, fn 43–44. 41 Born opinion, para 108. See also, para 126. 42 ibid para 128. 43 ibid para 144. Born argues that the obligation to accord fair and equitable treatment ‘necessarily connotes a measure of proportionality’. Although related, the requirement of proportionality differs from that of rationality or reasonableness. Proportionality involves an analysis of the legitimacy of a measure’s objective and whether a measure is both necessary and suitable for that objective, while reasonableness or arbitrariness focus primarily on the relationship between the measure and investor’s rights. Born opinion, para 139, fn 145. 44 Born opinion, paras 157–62 (noting that the SPR requirement is over-inclusive insofar as it prohibits sales of brands that do not mislead consumers and is also under-inclusive insofar as it does not bar the sale of different brands or ‘alibi brands’ that may indeed mislead consumers). 45 Indeed, the Philip Morris arbitrators, who drew so heavily on the facts that they were given by the relevant experts—for some examples, see (n 16)—were hardly in a position to declare that fact-finding was exclusively the adjudicator’s function. 46 Frye vUnited States, 293 F 1013 (DC Cir 1923). 47 Daubert vMerrell Dow Pharms, Inc, 509 US 579 (1993). In Kumbo Tire CovCarmichael, 526 US 137 (1999), the Court extended the Daubert test to ‘technical, or other specialized knowledge’, thereby suggesting that the admissibility of evidence based on the ‘soft sciences’ (such as economics and psychology) should also be based on ‘the same level of intellectual rigor that characterizes the practice of an expert in the relevant field’. Tire, at 152. Since the relevant evidence rule (Rule 702) drew no such distinctions, the Kumbo Court found that while trial court judges enjoy considerable discretion in how they apply the Daubert factors, there is no relevant difference between experts who rely on scientific principles and those who rely on ‘skill- or experience-based observation’ and it was therefore not improper for a judge to consider such factors to the testimony of an expert in tire failure analysis. 48 Morris (n 9), para 306 (citing to the amicus briefs filed by WHO/FCTC and PAHO). See also, para 307. 49 Indeed, some experts have opined in the course of ISDS disputes on both national law and international law as well as the relationship between the two. See, eg, Metalpar vArgentina, ICSID Case No ARB/03/5, Expert Report of Benedict Kingsbury (15 August 2006). 50 Other ISDS disputes have included, for example, legal experts testifying on the existence or contents of the rules of state responsibility to aliens as well as expert reports on the applicability of exhaustion of local remedies to denials of justice. See, eg, in Loewen Group, Incand Raymond LLoewen vUnited States of America, ICSID Case No ARB(AF)/98/3, the Opinion of Sir Robert Jennings (26 October 1998); Loewen Group, Incand Raymond LLoewen vUnited States of America, ICSID Case No ARB(AF)/98/3, Statement of Claim, (30 October 1998) <http://naftaclaims.com/disputes/usa/Loewen/Loewen%20-%20Notice%20of%20Arbitration%20-%20Jennings%20Opinion%20-%2030-10-98.pdf> accessed 10 April 2018. Indeed, the well-known Argentine disputes that focused on the legality of Argentina’s Emergency Measures under the ‘measures not precluded’ clause of the US–Argentine BIT were replete with legal experts on the meaning of that clause, the underlying customary defense of ‘necessity’, and the application of each of those legal standards in the Argentine context. See, eg, in Sempra Energy International & Camuzzi International and the Republic of Argentina, ICSID Case No ARB/02/16 and ARB/03/02, the Opinion of José E Alvarez (12 September 2005) and in Sempra Energy International & Camuzzi International vRepublic of Argentina, ICSID Case No ARB/03/02 the Witness Statement of Anne-Marie Slaughter and William Burke-White (2 December 2005). 51 Pulp Mills on the River Uruguay (Argentina vUruguay) (Joint Dissenting Opinion of Judges Al-Khasawneh and Simma) ICJ Rep 2010, paras 3–5; para 12. 52 Enron Creditors Recovery CorpvArgentine Republic, ICSID Case No ARB/01/3, Decision on the Application of Annulment of the Argentine Republic (30 July 2010), paras 391–3. 53 For a summary of these and other critiques, see, eg, Bonnitcha, Skovgarrd, and Waibel (n 7) 233–60. 54 See, eg, Richard B Bilder, ‘The Fact/Law Distinction in International Adjudication’, in Richard B Lillich (ed) Fact-Finding Before International Tribunals (Transnational 1992) 95. 55 See, eg, Joost Pauwelyn, ‘The Rule of Law Without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators from Venus’ (2015) 109 AJIL 109. 56 For a fascinating exposition of the development of modern conceptions of ‘objectivity’, defining this quality as involving the suppression of some aspect of the self and therefore in counterpoint to its opposite, ‘subjectivity’, see Orraine Daston and Peter Galison, Objectivity (Zone Books 2007) 36. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Parlett, Kate

2018 Journal of International Dispute Settlement

doi: 10.1093/jnlids/idy018

Abstract Experts are playing a role of increasing importance in both inter-State and investor–State disputes. Given the rising number of fact-intensive technical or scientific disputes in the inter-State context and the prevalence of expert evidence on a range of issues in investor–State arbitration, it is likely that expert evidence will play an increasingly central and even pivotal role in international litigation. In the light of this development, this article provides an outline of the issues relating to the engagement that takes place between parties to a proceeding and experts giving evidence in that proceeding. Drawing upon the usual practice in relation to both party-appointed and Court- or tribunal-appointed experts, the author explains how a party and its counsel engage with experts from the beginning of their engagement through to the expert giving evidence at an oral hearing. The author also identifies safeguards and limitations to the possibility that an expert’s views might be unduly influenced by a party or its counsel. In practice, the effectiveness of these safeguards will ultimately depend on the ethical standards observed by parties, their counsel, and the experts themselves. In recent years, there has been increased attention on expert evidence in international disputes: in inter-State disputes before the ICJ and international tribunals, and also in investor–State disputes under investment treaties, laws or contracts. This attention has followed from a rise in the number of fact-intensive technical or scientific disputes in the inter-State context and from the now almost universal practice of relying on expert opinions in investor–State arbitration, particularly in relation to quantum of damages. Indeed, in a number of cases, expert opinion can provide crucial—indeed, pivotal—evidence where there is no relevant witness or documentary evidence to assist a party in proving its case or disproving the case made against it. In the light of these developments, this article is intended to provide an outline of issues relating to the engagement that takes place between parties to a proceeding and experts giving evidence in that proceeding. The focus here will be on inter-State disputes, before the ICJ or international tribunals, and investor–State disputes before arbitral tribunals.1 It is increasingly common for experts who give evidence in international litigation to be questioned or cross-examined at a hearing. Much has been written on cross examination techniques2 and it is not intended to revisit the process or techniques of cross examination here: rather the focus is on engagement of a party and its counsel with experts during the earlier stages of a proceeding, and in particular in the preparation of expert reports to be submitted as part of the evidence in international litigation. 1. Involving Experts in International Proceedings There are principally two ways in which experts may be engaged to participate in international proceedings. These are by appointment by (a) the parties or (b) the court or tribunal: the former being more closely associated with common law practice; and the latter with civil law practice. The way in which an expert is appointed has a significant impact on the engagement that expert has with the disputing parties. A. Party-Appointed Experts Parties regularly engage technical or scientific experts to assist either with the preparation of a case, or to provide an opinion annexed to the written pleadings. The Statute of the ICJ refers to the participation of witnesses and experts in the oral proceedings,3 and the Rules of Court require that experts called upon to be examined before the Court make a declaration that their statements are made in accordance with their sincere belief.4 Neither the Statute or the Rules specify that party-appointed experts must be independent of the parties but the requirement to provide an opinion under oath and the fact that experts may be questioned by representatives of the parties and the judges suggests that party-appointed experts should be independent and impartial, and give their honest expert views. In more recent cases, expert opinions prepared by party-appointed experts have included a positive statement of independence and impartiality and an acknowledgement that the expert owes a duty to the Court.5 The arbitral rules most commonly used in investment disputes acknowledge the possibility that parties may appoint experts6 but do not specify how their evidence is to be presented or the standards of impartiality to be observed by them. However, a number of soft law instruments have been developed to establish standards of independence for party-appointed experts and guidelines for the content of their reports. These include the 2007 Chartered Institute of Arbitrator’s Protocol for the Use of Party-Appointed Experts Witnesses in International Arbitration (CIArb Protocol), the 2010 International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration (2010 IBA Rules), the 2013 IBA Guidelines on Party Representation in International Arbitration (IBA Guidelines) the UNCITRAL Notes on Organizing Proceedings (1996, updated in 2016) (UNCITRAL Notes), and the General Guidelines for the Parties’ Legal Representatives, annexed to the 2014 London Court of International Arbitration (LCIA) Rules (LCIA Guidelines).7 These may be incorporated into the agreed procedural rules governing the conduct of a particular arbitration or may provide guidance to parties or tribunals in dealing with various aspects of expert evidence.8 There is a preliminary question as to whether a party needs to obtain permission or leave to obtain and submit expert evidence. Ordinarily the rules governing procedure do not require permission, but an exception is found in the CIArb Protocol, which provides that the tribunal shall direct the number of experts that shall be permitted to give evidence.9 The 2010 IBA Rules do not require permission but provide for the parties to identify any party-appointed experts on whose testimony they intend to rely within a time frame ordered by the tribunal.10 In practice, tribunals do not generally seek that information on a preliminary basis: the parties simply submit expert opinions with their pleadings and the number of experts and the issues that they address may expand during the course of an arbitration.11 B. Court- or Tribunal-Appointed Experts A second way in which experts may be engaged in international proceedings is by appointment of the Court or tribunal. Article 50 of the ICJ Statute provides that ‘[t]he Court may, at any time, entrust any individual … that it may select, with the task of carrying out an enquiry or giving an expert opinion’.12 Article 67(1) of the Rules of Court provides that if the Court considers it necessary to arrange for an expert opinion, it shall issue an order after hearing the parties, defining the subject of the opinion and setting out the procedure to be followed. Article 67(2) provides that the opinion ‘shall be communicated to the parties, which shall be given the opportunity of commenting upon it’.13 Provisions similar to Article 50 of the Court’s Statute are also to be found in the rules of procedure of both ITLOS and the Iran–US Claims Tribunal.14 The ICJ has used its powers under Article 50 sparingly.15 The PCIJ appointed experts at the indemnities stage of the Chorzów Factory case, although the parties agreed on the amount of compensation before the experts’ opinion was rendered.16 The ICJ appointed two sets of experts in the Corfu Channel case: first, a committee of three naval experts to address a contested question of fact: whether the mines could have been laid without the Albanian authorities being aware of them; and secondly, two naval experts to assess the amount of compensation due for damage to the UK’s warships.17 In the Gulf of Maine case, the Parties, in their Special Agreement, requested a Chamber of the Court to determine the course of the single maritime boundary dividing the continental shelf and fisheries zones of Canada and the US in the Gulf, and asked the Chamber to appoint a technical expert to assist it.18 The Chamber appointed the expert under Article 50,19 and he submitted a technical report to assist with the delimitation and was also available to the Chamber for consultation throughout the proceedings.20 More recently, the Court appointed two experts to provide an opinion in the Maritime Delimitation case between Costa Rica and Nicaragua. The subject of the opinion was the state of the coast on the Caribbean Sea between the points suggested by each Party as the starting point of the maritime boundary, and the Court posed a series of questions to the experts to be answered in an opinion, following site visits by the experts.21 The experts were not questioned at the hearing held in July 2017.22 In the Court’s judgment issued in February 2018, the Court relied upon the assessment of the experts, which was not challenged by the parties.23 In other cases, parties and/or judges have proposed that the Court appoint experts but the Court has not accepted these proposals.24 So far as concerns investment arbitration, the ICSID Arbitration Rules do not contain any specific provisions but the 2010 UNCITRAL Arbitration Rules provide that the tribunal, after consultation with the parties, may appoint one or more independent experts to report to it on specific issues.25 The soft-law instruments (mentioned above) which have been developed to provide guidance to arbitral tribunals also make provision for tribunal-appointed experts: for example Article 6 of the 2010 IBA Rules sets out a procedure for such experts similar to the 2010 UNCITRAL Arbitration Rules and also emphasizes the parties’ consultation in the appointment process.26 In practice, experts are not routinely appointed in investment disputes: there have been cases in which parties have jointly requested the tribunal to appoint an expert on a particular technical issue,27 and sometimes a tribunal-appointed expert is brought in after a final hearing ‘in order to assist the tribunal bridge the gap between two radically different positions adopted by the party-appointed experts in a case’.28 As Blackaby and Wilbraham point out, the late appointment of an expert often means that the expert will be at a disadvantage over the parties and tribunal members since they will likely not have been present at the hearing where the party-appointed experts gave evidence; an improvement might be found in earlier appointment of such experts.29 A more recent proposal which has been termed the ‘Sachs Protocol’ suggests that tribunals appoint a team of two experts, each chosen from a short list presented by each party, and the experts produce a joint final report and, if necessary, answer questions at a hearing.30 However, this approach appears not to have been widely used so far in practice. C. Alternative Ways for Experts to Participate There are three other possible ways in which experts may participate in international proceedings. (i) Experts fantômes The first is by way of ‘behind-the-scenes’ assistance to the court or tribunal: sometimes described as internal experts fantômes. The Registrar of the ICJ has noted that the Court has made use of such experts, described as ‘temporary Registry staff members, entrusted with the giving of internal scientific opinions under the oath of confidentiality demanded of full-time Registry staff’.31 The opinions provided by them are not made public and are not provided to the disputing parties. It has been suggested that the Court, in the past, has engaged cartographers, hydrographers, geographers, linguists and legal experts to provide such advice to the Court.32 This practice has been criticized by judges of the Court and by commentators, particularly by reference to the Court’s powers to appoint external experts, whose role and opinions are provided to the parties and who can be made available to the parties and the Court for questioning.33 Those criticisms appear to be well-placed. Apart from the question of procedural fairness (in terms of allowing the parties to have access to the evidence and materials that are taken into account in making a decision, and which may ultimately give rise to questions of legitimacy), the absence of any opportunity for the parties to put questions to experts fantômes means that this evidence is untested by those most familiar with the issues material to the dispute. That must make that evidence much less helpful to a judge than evidence which is tested by both the parties and the court, through the provision of comments and ultimately through cross-examination. (ii) Participation as part of the delegation A second possibility is that experts participate as part of the delegation, including appearing as advocate for a party. This has occurred several times in cases before the ICJ; notably the Statute, Rules or Practice Directions do not require that any person appearing as counsel or advocate have any particular qualifications, and the Court’s approach has been to accept that any individual put forward by a party may appear on its behalf.34 However, in the Pulp Mills case, the Court expressed concern about the practice of experts (or witnesses) appearing as advocates, noting that it considered ‘those persons who provide evidence before the Court based upon their scientific and technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court’.35 Since that judgment, the practice of experts appearing as advocate before the ICJ has not persisted, although it is not uncommon for non-testifying experts to form part of the delegation and to assist counsel on technical or scientific matters, without giving written or oral evidence to the Court.36 (iii) Inclusion of experts on the tribunal The third possibility is that a person with particular expertise be included on the tribunal or decision-making panel, or otherwise assist the tribunal or panel. The Kishenganga arbitration between Pakistan and India pursuant to the Indus Waters Treaty took place before a seven-member Court of Arbitration which was to include, and did include a ‘highly qualified engineer’ to be selected by the Rector of the Imperial College of Science and Technology in London,37 alongside six lawyer arbitrators (including present and former judges of the ICJ). The dispute concerned India’s plans to build a hydroelectric plant in part of Kashmir, and each of the seven members of the Court, including the engineer, participated as decision-makers. A related possibility is that a scientific or technical expert sit with the court or tribunal, but without the right to vote. The UN Law of the Sea Convention provides that a court or tribunal deciding a dispute ‘involving scientific or technical matters’ may, at the request of the party or proprio motu, select two scientific or technical experts ‘to sit with the court or tribunal but without a right to vote’.38 This power has not so far been used by any Part XV tribunal, but it is an example of a specific treaty providing for the engagement of experts in an advisory capacity in particular disputes. 2. Conduct of an Expert’s Work after Appointment There are obvious differences in the way in which an expert conducts his or her work after appointment, depending on whether the expert is party- or court/tribunal- appointed. A. Party-Appointed Experts Once counsel has identified a need for independent expertise, the general practice is to engage an expert at an early stage. The usual practice in both inter-State and investor–State disputes is as follows: experts are identified by a party or its counsel and are contacted to pitch for a case. At this stage, any potential conflicts should be identified and addressed;39 the potential expert would then be interviewed, and there would be some preliminary discussion about the scope and content of the opinion, at least in general terms; once an expert is selected, counsel usually work closely with him or her to formulate the terms of reference, or questions to be answered, which would ordinarily form the basis of an outline for their report; the expert is provided with necessary documents and other evidence on which to base their opinion, including relevant evidence adduced or disclosed from the other side. The ordinary practice is that the expert maintains a list of all the documents he or she relies upon in order to be in a position to produce them to the opposing party;40 and the expert produces a draft report, which is refined41 and then eventually submitted as evidence. The 2010 IBA Rules, the CIArb Protocol, and the UNCITRAL Notes encourage pre-hearing meetings between party-appointed experts who have submitted reports on the same or related issues. The purpose of these meetings is to attempt to reach agreement, and to identify remaining points of difference.42 As Blackaby and Wilbraham note, where the divisions between the experts are pivotal to the case, it is usually very difficult for experts to reach even partial agreement.43 Nevertheless, even the identification of the principal issues dividing the experts can be helpful, as it usually involves the distillation of lengthy reports into a more digestible list, and can assist parties and the tribunal in preparing to question experts at the hearing. B. Court- or Tribunal-Appointed Experts There are some obvious differences in the working processes of court- or tribunal-appointed experts, as compared to those of party-appointed experts. However, in both inter-State and investor–State proceedings, there is still significant scope for the parties and their counsel to be engaged with the experts. The usual practice is as follows: the parties are consulted on the need for an expert opinion and its scope;44 if the court or tribunal decides to appoint an expert, parties are consulted as to the particular expertise that the expert should have, and his or her identity;45 the parties may be consulted as to the terms of reference to be given to the experts;46 the parties may be asked to provide information, documents and perhaps access to the experts.47 They might, in appropriate circumstances, be asked to provide some explanation to the experts in the form of submissions; where the experts carry out a site visit, the parties and/or their representatives will ordinarily be invited to attend the visit. If the experts carry out tests or other experiments, the parties and/or their representatives would ordinarily be given an opportunity to participate in or observe that process;48 the experts provide their report to the court or tribunal;49 the parties are given the opportunity to comment on the report;50 and then if requested, they would have an opportunity to put questions to the expert at a hearing, under cross examination.51 The court or tribunal would also be able to ask questions of the experts at the hearing. 3. Parties’ Engagement with Experts’ Work A. Party-Appointed Experts There is no specific regulation of parties’ engagement with experts in terms of preparation and finalization of the expert’s written report. In the arbitration context, the 2013 IBA Guidelines on Party Representation provide some guidance: they provide in general terms that party representatives may assist experts in preparation of their reports but should seek to ensure that an expert’s report reflects his or her own analysis and opinion.52 It is common knowledge that counsel frequently work collaboratively with experts in fulfilling their task of providing their expert opinion to the court or tribunal. It has also been acknowledged that ‘involvement of counsel [in the preparation of expert reports] improves the readability and comprehension of an expert report as technical experts may not always be able to produce readily understandable reports for non-experts’.53 The involvement of counsel in reviewing draft reports also can be of assistance to experts in focussing on the real issues in dispute. Nevertheless, this practice, taken together with the fact that communications between counsel and experts are not normally disclosed, has given rise to some criticism of the value of party-appointed expert reports,54 and even led some to characterize party-appointed experts as ‘hired guns’.55 It is hardly surprising that the opinions of a party-appointed expert would ordinarily support the case of the party appointing him or her. If an expert does not agree with the appointing party’s case or is unlikely to be helpful, they are unlikely to be selected as expert. However, it would be simplistic to dismiss the views of a testifying expert on the sole basis that they coincide with the case of the appointing party. Further and in any event, it is not uncommon in practice for an expert to express some views which are not fully in support of the appointing party’s case, and some concessions may ultimately confer upon the expert more credibility before the court or tribunal, as they tend to confirm the expert’s impartiality. As to the extent to which a party or its counsel might influence an expert’s views, there are safeguards and limitations within the adversarial system, although ultimately their effectiveness will depend in large measure on the ethical standards observed by all participants. Firstly, practising lawyers’ dealings with experts, as with parties and witnesses, are governed by the domestic rules governing their professional conduct, and one would ordinarily expect those rules to regulate counsel’s engagement with experts, as they would with fact witnesses. Such rules vary across different jurisdictions and as between solicitors and barristers, and it may be that lawyers from some jurisdictions are culturally and professionally more interventionist or hands-on with experts than others.56 For example, the Ethics Committee of the General Council of the Bar have issued guidance to assist members of the English Bar to identify what is permissible by way of expert witness preparation. It emphasizes that counsel has a proper role in assisting an expert as to the issues which the expert should address in his or her report, but that ‘expert reports should be, and should be seen to be, the independent product of the expert in question’ and therefore counsel ‘should not seek to draft any part of an expert’s report’, but may annotate on a draft report ‘observations and questions for the expert to consider in any revisions to the draft’.57 So far as concerns assistance in familiarizing experts with the process of giving evidence, the guidance emphasizes that ‘one must take great care not to do or say anything which could be interpreted as manufacturing or in any way influencing the content of the evidence that the expert is to give in the witness box’.58 While expert familiarization is encouraged, witness ‘coaching’ is prohibited.59 The English Bar rules are generally considered to be amongst the most restrictive when it comes to dealings with factual witnesses and experts: in contrast, a US-qualified lawyer may be permitted to engage in rehearsals of testimony, including mock cross-examinations, and to take a more interventionist approach to the substance of an expert’s opinion, both in terms of written and oral evidence. This had led some to suggest that there is an unbalanced playing field in international litigation where there are commonly practitioners participating subject to less or more restrictive ethical rules.60 On the other hand, there is a question as to whether more interventionist preparation is effective: it is usually apparent to the court or tribunal where an expert’s evidence is coached and this can undermine the expert’s credibility, as it could indicate that the expert is not giving his or her honest expert views or is not exercising a sufficient degree of independence. As mentioned above, expert reports commonly include a statement of independence and truth of the opinions expressed therein. The 2010 IBA Rules requires that an expert’s report contain ‘a statement of his or her independence from the Parties, their legal advisors and the Arbitral Tribunal’.61 The CIArb Protocol provides that ‘[a]n expert’s opinion shall be impartial, objective, unbiased and uninfluenced by the pressures of the dispute resolution process or by any Party’62 and specifies that ‘[a]n expert’s duty in giving evidence … is to assist the Arbitral Tribunal’.63 Furthermore, testimony is given under oath, on affirmation, or subject to a statement of honest belief. These requirements should operate to encourage experts to express their honest expert views and to limit the influence that any other individual may have in the formulation or expression of those views. Depending on their professional affiliations, it may also be that experts themselves are constrained by their professional codes of conduct (for example, for accounting or economic professionals, or construction and engineering experts). These might set ethical standards which apply to their individual members when providing expert testimony in dispute resolution proceedings. Where an expert is a lawyer, he or she may also be bound by his or professional obligations in giving evidence. Furthermore, an expert is likely to feel constrained by his or her own reputation and professionalism. These are likely to be highly valued and can be expected to limit the extent to which any third party can influence the expert’s expression of honest opinion. Additionally, experts who are purely advocates will likely lose credibility with the court or tribunal. A lack of credibility can undermine a party’s case, particularly where the issues on which expert evidence is proffered are central to the dispute. Finally, that the expert will be subject to cross-examination through the adversarial process is a further check on the process. That cross-examination is likely to be informed by an opposing expert working with opposing counsel, to assist in identifying any errors in methodology or its application. This should incentivise an expert to ensure that their report reflects their true and honest opinion, one that can withstand the scrutiny of an equally-specialized expert. The expert will also be available to answer questions from the judges or arbitrators, who, in discharging their functions, should be in a position to test the expert evidence in order to satisfy themselves of its reliability or otherwise. These safeguards of the adversarial system can provide some comfort to a court or tribunal in relying upon expert opinions. Nevertheless, the system is not without its weaknesses. Ultimately the effectiveness of these safeguards depends on the conduct employed by all those involved—counsel, parties, experts and judges/arbitrators. The same might be said of fact witnesses giving evidence on disputed facts: that evidence must be tested, and the witness’s credibility be taken into consideration, in order for the court or tribunal to make findings on those facts. In the same way that fact witness evidence is often crucial to make such findings, expert evidence can be crucial to disputed issues. Provided that there are safeguards by which that evidence is properly tested, including through cross-examination, a court or tribunal should be sufficiently informed to be in a position to decide whether it is able to rely upon it. B. Court- or Tribunal-Appointed Experts So far as concerns court- or tribunal-appointed experts, parties do not usually have the opportunity to comment on drafts of the expert’s report. The expert may request the parties to provide information or relevant documents in the course of preparing their report, or to answer questions to assist in the preparation of reports. But ordinarily parties will only have an opportunity to provide formal comments in writing on the report after it has been finalized. The parties would then have an opportunity to put questions to the experts, usually through cross-examination, at the hearing. 4. Conclusion Given the rising number of fact-intensive technical or scientific disputes in the inter-State context and the prevalence of expert evidence on a range of issues in investor–State arbitration, it is likely that expert evidence will play an increasingly central role in international litigation. Indeed, the issues on which expert evidence is presented may be of pivotal importance to the resolution of the dispute and will need to be grappled with by the Court or tribunal. In order to shed light on the processes by which parties and their counsel engage with experts—whether party- or tribunal-appointed—this article has outlined the key aspects of that engagement, and has identified safeguards and limitations to the possibility that an experts’ views might be unduly influenced by a party or its counsel. Significantly, the process by which an expert’s evidence is tested, through cross-examination, and through questioning from the court or tribunal, should enable the court or tribunal to make an informed decision as to the reliability or otherwise of that evidence. In practice, the effectiveness of these safeguards will ultimately depend on the ethical standards observed by parties, their counsel, and the experts themselves. Footnotes 1 Notably, this article does not cover experts in WTO dispute settlement, as to which see, e.g. GZ Marceau and JK Hawkins, ‘Experts in WTO Dispute Settlement’ 3 (2012) JIDS 493. 2 See, for example, K Hober and HS Sussman, Cross-Examination in International Arbitration (OUP 2014); D Bishop and EG Kehoe (eds), The Art of Advocacy in International Arbitration (2nd edn, Juris 2011); and A Jan van den Berg, Arbitration Advocacy in Changing Times (Kluwer 2011). 3 Statute of the International Court of Justice, art 43(5). 4 Rules of the International Court of Justice (1978, as amended in 2005), art 64(b); see also arts 57 and 65. On the earlier practice of experts appearing as counsel, see G Gaja, ‘Assessing Expert Evidence in the ICJ’ (2016) 15 The Law and Practice of International Courts and Tribunals 409, 411–412. 5 See, for example, s 10 of report of Professor Colin Thorne submitted with Costa Rica’s Rejoinder in Construction of a Road Along the San Juan River (Nicaragua v Costa Rica), <http://www.icj-cij.org/files/case-related/152/18538.pdf> accessed 10 April 2018. 6 ICSID Rules of Procedure for Arbitration Proceedings (April 2006), arts 34, 35 and 36; ICSID Arbitration (Additional Facility) Rules (April 2006), arts 41, 42 and 43; Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) (2010) (2010 UNCITRAL Arbitration Rules), art 27. 7 For a detailed analysis of these instruments, see N Blackaby and A Wilbraham, ‘Practical Issues Relating to the Use of Expert Evidence in Investment Treaty Arbitration’ (2016) 31(3) ICSID Review 655; see also D Jones, ‘Party Appointed Expert Witnesses in International Arbitration: A Protocol at Last’ (2008) 24(1) Arbitration International 137; M Kantor, ‘A Code of Conduct for Party-Appointed Experts in International Arbitration – Can One be Found?’ (2010) 26(3) Arbitration International 324; BW Daly and F Poon, ‘Technical and Legal Experts in International Investment Disputes’ in C Giorgetti (ed), Litigating International Investment Disputes: a Practitioner’s Guide (Brill 2014) 323; R Moloo, ‘Evidentiary Issues Arising in an Investment Arbitration’ in C Giorgetti (ed), ibid 287. 8 In the case of the LCIA Guidelines, the 2014 LCIA Arbitration Rules provide that each party shall ensure that its legal representatives have agreed to comply with the general guidelines and the Arbitral Tribunal is empowered to find that a legal representative has violated the guidelines and to order sanctions: see LCIA Arbitration Rules (2014), arts 18.5 and 18.6; see also 2014 LCIA Guidelines, para 7. 9 CIArb Protocol, art 3. 10 2010 IBA Rules, art 5(1). 11 There may be issues for arbitrations seated in some jurisdictions if a tribunal denies permission to allow a party to appoint its own expert: see DH Freyer, ‘Assessing Expert Evidence’ in LW Newman and RD Hill, Leading Arbitrators’ Guide to International Arbitration (2nd edn, Juris 2008) 429, 433. 12 Statute of the International Court of Justice, art 50. The same power was contained in art 50 of the PCIJ Statute. It has also been suggested that the Court has inherent powers to appoint an expert: see A Riddell and B Plant, Evidence before the International Court of Justice (BIICL 2009) 333. 13 Rules of the International Court of Justice (1978, as amended in 2005), art 67. 14 ITLOS Rules of Procedure, art 82; Rules of Procedure of the Iran–US Claims Tribunal, art 27. See also art 27 of the PCA Optional Rules for Arbitrating Disputes between Two States (reprinted in ILM 32 (1993), 572); and art 18 of the ILC Model Draft Rules on Arbitral Procedure (ILC Yearbook (1958-II), 85). 15 See discussion in L Malintoppi, ‘Fact Finding and Evidence Before the International Court of Justice (Notably in Scientific-Related Disputes)’ 7 (2016) JIDS 421, 435–38; D Peat, ‘The Use of Court-Appointed Experts By the International Court of Justice’ (2014) 84 BYBIL 271, 276–88; M Moïse Mbengue, ‘Scientific Fact-Finding by International Courts and Tribunals’ (2012) 3 JIDS 509; A Riddell, ‘Evidence, Fact-Finding, and Experts’ in CPR Romano, KJ Alter and Y Shany (eds), The Oxford Handbook of International Adjudication (OUP 2014) 848; and J Devaney, Fact-Finding Before the International Court of Justice (CUP 2016) 150–78, esp 158–76 on the appointment of experts by inter-State arbitral tribunals in the UNCLOS Annex VII arbitration between Guyana and Suriname and the Abyei arbitration administered by the Permanent Court of Arbitration. See also, M Bennouna, ‘Experts before the International Court of Justice: What for?’ (2018) 9 JIDS; forthcoming. 16 Factory at Chorzów (Claim for Indemnity) (Germany/Poland), Order of 13 December 1928, PCIJ, Series A, No 17, p 99. See CJ Tams, ‘Article 50’ in A Zimmerman and others (eds), The Statute of the International Court of Justice: A Commentary (2nd edn, OUP 2012) 1291–92. 17 Corfu Channel Case (UK v Albania) (Order of December 17) [1948] ICJ Reports 124; and Corfu Channel Case (UK v Albania) (Order of November 19) [1949] ICJ Reports 237. 18 Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v US) (Merits) [1984] ICJ Reports 246, 253 (art II.3 of the Compromis). 19 ibid, Appointment of Expert, Order of 30 March 1984 [1984] ICJ Reports 165. 20 ibid (Merits) [1984] ICJ Reports 246, 253 (art II.3 of the Compromis); see also ‘Technical Report’ annexed to the Judgment: ibid 347–52. 21 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua), Order, 31 May 2016, para 10. See also Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v Nicaragua), Judgment, 2 February 2018, paras 10–21, 32 and 34–35. The author of this article was counsel to Costa Rica in that case. For the avoidance of doubt, all the information concerning this case which is referred to in this article is in the public domain. See also G Gaja, ‘Assessing Expert Evidence in the ICJ’ (2016) 15 The Law and Practice of International Courts and Tribunals 409, 416–17. 22 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v Nicaragua), ibid paras 10–21, 32 and 34–35. 23 ibid paras 71, 73, 77, 80, 86 and 104. 24 See Malintoppi (n 15) 421, 435. 25 2010 UNCITRAL Arbitration Rules, art 29. 26 2010 IBA Rules, art 6. See generally Daly and Poon (n 7) 323, 325–34. 27 ibid 323, 335. 28 Blackaby and Wilbraham (n 7) 655, 664. A recent example of this is in Perenco Ecuador Ltd v Republic of Ecuador ICSID Case No ARB/08/6, Interim Decision on the Environmental Counterclaim, 11 August 2015, paras 568–85, concerning a counterclaim by a State against an investor for environmental damage. In the light of the significant disagreement between the party-appointed experts on the extent of contamination and Perenco’s responsibility for it, the tribunal appointed its own expert to investigate the relevant sites. 29 Blackaby and Wilbraham (n 7) 655, 664. 30 K Sachs and N Schmidt-Ahrendts, ‘Protocol on Expert Teaming: A New Approach to Expert Evidence’ in A Jan van den Berg (ed), Arbitration Advocacy in Changing Times (Kluwer 2011) 134. 31 Ph Couvreur, ‘Le règlement juridictionnel’ in SFDI (eds), Le processus de delimitation maritime: Ètude d’un cas fictif (Colloque International 2004) 349, 384. 32 RY Jennings, ‘International Lawyers and the Progressive Development of International Law’ in J Makarcyzk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krystof Skubiszewski (Kluwer 1996) 416. See also G Gaja, ‘Assessing Expert Evidence in the ICJ’ 15 (2016) The Law and Practice of International Courts and Tribunals 409, 413–14. 33 See, eg Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, ICJ Reports 2010 (I), declaration of Judge Yusuf, para 14, and dissenting opinion of Judges Al-Khawsaneh and Simma, para 14. See also Malintoppi (n 15) 421, 436–38; D Peat, ‘The Use of Court-Appointed Experts By the International Court of Justice’ (2014) 84 BYBIL 271, 300; JG Sandoval Coutasse and E Sweeney-Samuelson, ‘Adjudicating Conflicts Over Resources: The ICJ’s Treatment of Technical Evidence in the Pulp Mills Case’ (2011) 3 Goettingen JIL 447, 468–69; and A Riddell and B Plant, Evidence before the International Court of Justice (BIICL 2009), esp 337–38. 34 A Watts, ‘Enhancing the Effectiveness of Procedures of International Dispute Settlement’ (2001) 21 Max Planck Yearbook of United Nations Law 21, 25; and J Devaney, Fact-Finding Before the International Court of Justice (CUP 2016) 78–83. 35 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, ICJ Reports 2010 (I), para 167. See also dissenting opinion of Judges Al-Khasawneh and Simma, para 6; and separate opinion of Judge Greenwood, para 27. 36 See discussion in A Boyle and J Harrison, ‘Judicial Settlement of International Environmental Disputes: Current Problems’ 4(2) (2013) JIDS 245, 271. 37 See In the Matter of the Indus Waters Kishenganga Arbitration between the Islamic Republic of Pakistan and the Republic of India, PCA Case 2011-01; Indus Waters Treaty 1960 between the Government of India, the Government of Pakistan and the International Bank for Reconstruction and Development, Pakistan–India, 19 September 1960 (entry into force 12 January 1961), 419 UNTS 126, Annexure G, para 4. 38 United Nations Convention on the Law of the Sea, 10 December 1982 (entry into force 16 November 1994), 1833 UNTS 3, art 289. 39 On conflicts in investor–State arbitration, see Daly and Poon (n 7) 323, 341–45 and 348–51; and Blackaby and Wilbraham (n 7) 655, 657–58. 40 This may be required (eg 2010 IBA Rules, art 5(2)(e)): see discussion in Daly and Poon (n 7) 323, 356–58. On the disclosure of communications between counsel and a party-appointed expert, see PD Friedland and K Brown de Vejar, ‘Discoverability of Communications Between Counsel and Party-Appointed Experts in International Arbitration’ in A Jan van der Berg (ed), Arbitration Advocacy in Changing Times (Kluwer 2011) 160. 41 It is common for counsel to participate in this process of refinement: see further subsection 3(A) below on parties’ engagement with party-appointed experts. 42 CIArb Protocol, art 6; 2010 IBA Rules, art 5(4); 2016 UNCITRAL Notes, paras 97–98. 43 Blackaby and Wilbraham (n 7) 655, 665–66. 44 2010 IBA Rules, art 6(1). 45 UNCITRAL Notes, para 102; 2010 IBA Rules, art 6(2). 46 ibid para 102;ibid, art 6(1). 47 ibid para 104; 2010 IBA Rules art 6(4); see also Commentary to 2010 IBA Rules, p 22. 48 2010 IBA Rules art 6(3). See also Commentary to 2010 IBA Rules, p 21. 49 ibid art 6(4). 50 ibid art 6(5). 51 UNCITRAL Notes, para 105; 2010 IBA Rules art 6(6); see also Commentary to 2010 IBA Rules, p 21. 52 IBA Guidelines on Party Representation in International Arbitration (2013), Guidelines 20 and 22. The IBA Guidelines are more detailed than the 2014 LCIA Guidelines, which provide that ‘[a] legal representative should not knowingly procure or assist in the preparation of or rely upon any false evidence presented to the Arbitral Tribunal or the LCIA Court’: 2014 LCIA Guidelines, para 5. 53 Daly and Poon (n 7) 323, 362. 54 ibid. 55 See, eg G De Berti, ‘Experts and Expert Witnesses in International Arbitration: Adviser, Advocate or Adjudicator?’ (2011) Austrian Yearbook on International Arbitration 54. 56 There have been calls for developing standards governing the ethical conduct of counsel appearing before international courts and tribunals and various initiatives to develop codes of conduct, but these have not yet been adopted or implemented by the relevant courts and tribunals and tend to be formulated at a fairly general level: see, eg Working Session of the Study Group on the Practice and Procedure of International Tribunals, ‘The Hague Principles on Ethical Standards for Counsel Appearing Before International Courts and Tribunals’ in International Law Association Report of the Seventy-Fourth Conference (ILA 2010) 952–60, See also M Kazazi, ‘Commentary on the Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals’ 10 (2010) 10 Law and Practice of International Courts and Tribunals 17; E Sthoeger and M Wood, ‘The International Bar’ in CPR Romano, KJ Alter and Y Shany (eds), The Oxford Handbook of International Adjudication (OUP 2014) 637; and A Sarvarian, Professional Ethics at the International Bar (OUP 2013). 57 General Council of the Bar, Ethics Committee, ‘Witness Preparation’, August 2017, <http://www.barcouncil.org.uk/media/411847/witness_preparation.pdf>, esp paras 21–23. 58 General Council of the Bar, Ethics Committee, ‘Witness Preparation’, August 2017, <http://www.barcouncil.org.uk/media/411847/witness_preparation.pdf>, para 24. 59 See, eg ibid <http://www.barcouncil.org.uk/media/411847/witness_preparation.pdf>, para 4. 60 See, e.g. Sthoeger and Wood (n 56) 637, 643–44. 61 2010 IBA Rules, art 5(2)(c). 62 CIArb Protocol, art 4(1). 63 ibid art 4(3). © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Cook, Kate

2018 Journal of International Dispute Settlement

doi: 10.1093/jnlids/idy012

Abstract This article considers the implications, for future disputes, of the adoption of the best available science (BAS) standard in a number of international (and national) regimes, including the 2015 Paris Agreement on Climate Change. The three strands of BAS: ‘best’, ‘available’, ‘science’ raise distinct but related issues on which expert evidence may be presented before courts and tribunals. This article considers these three aspects of BAS, both in relation to the evidence which states and others may need to present to demonstrate substantive conformity with BAS, and in relation to the way in which expert evidence is appraised by tribunals in such disputes. In adopting the 2015 Paris Agreement (PA) as a strengthened response to the global threat of climate change,1 Parties emphasized the importance of acting on the basis of the best available science (BAS). This standard also appears in UNCLOS2 as well as in many national regulatory regimes. In view of the emphasis placed on BAS in the PA and its potential adoption in other regimes, this article examines the scope of this standard which is likely to be the subject of expert evidence in future disputes. This article highlights specific aspects of BAS which experts may be asked to address. I argue that developments in a number of international scientific fora and decisions of the International Court of Justice (ICJ), indicate the types of issues which may arise in future disputes before international tribunals. THE CONTEXT FOR DISPUTES In the Preamble to the PA, Parties recognized: the need for an effective and progressive response to the urgent threat of climate change on the basis of the best available scientific knowledge. The importance of BAS is then restated with reference to specific elements of the PA. In relation to mitigation,3 Parties aim to undertake rapid reductions of greenhouse gas emissions ‘in accordance with [BAS]’ so as to achieve a balance between anthropogenic emissions by sources and removals by sinks in the second half of the century.4 In relation to adaptation,5 Parties have acknowledged that action should be ‘based on and guided by’ BAS, together with a range of other factors and standards.6 In conducting the Global Stocktake, a comprehensive review of collective progress towards achieving the PA’s long-term goals, Parties shall consider progress in the light of ‘equity and [BAS]’.7 Although the PA is partly framed in fairly general terms, the science which underpins it (and the evolution of the climate change regime as a whole) is carefully calibrated in terms of emission pathways, likely degrees of warming and corresponding impacts, as set out in the detailed Assessment Reports (ARs) published by the International Panel on Climate Change (IPCC). The requirements to act on the basis of BAS are relevant to the interpretation of the more general language, for example in relation to peaking of emissions ‘as soon as possible’8 and in determining what will be required to achieve the ‘balance’ sought by the second half of the century.9 The broad scope of the PA, which not only encompasses mitigation and adaptation but also addresses other areas of climate change policy, means that there is a wide range of national implementing decisions which may come under future judicial scrutiny. The PA combines requirements for ‘bottom up’ national action on mitigation, as set out in Nationally Determined Contributions (NDCs), and on adaptation, set out in National Adaptation Plans (NAPs) with ‘top down’ international support and review, including in the form of the Global Stocktake. This ‘hybrid’ structure is likely to mean that the national action on which the collective response depends comes under increased legal scrutiny at both the national and international levels. The precise status, under national law, of Parties’ NDCs will depend on that Party’s domestic legal system, including relevant principles of public law such as legitimate expectation, albeit that the PA lays down a number of binding international obligations in relation to NDCs.10 At the international level, while the provisions for review under the PA do not in themselves provide a binding framework for delivery of the NDCs, inadequate action by one Party clearly has implications for the collective burden born by others as they seek to prevent dangerous climate change by limiting the average temperature rise to ‘well below 2 degrees’ and pursuing efforts to limit it to 1.5 degrees.11 The legal implications of this relationship remain to be explored in the light of the general principle of good faith as well as other relevant principles of customary international law. National implementation of both NDCs and NAPs may therefore come under legal scrutiny, including scrutiny as to whether national action is based on BAS. This could arise in the context of decisions in the energy sector, decisions on infrastructure, on access to natural resources or disaster risk reduction (DRR) for reasons related to mitigation, adaptation or both. States may be challenged for not acting in accordance with BAS, perhaps by not being ambitious enough in their mitigation and adaptation plans to put them on track to supporting PA goals. Alternatively, states may face challenges from investors and others dissatisfied with decisions that are seen to interfere with their rights. States may then invoke the BAS standard defensively, to justify their climate actions. Some of these disputes may be brought before international fora. Disputes will turn on the particular legal context under national or international law but it is possible to identify some common issues which may arise in adjudicating BAS and a number are examined below. A TRIPARTITE REVIEW? Given the likelihood of disputes as to the extent to which states have, or have not, acted on the basis of BAS, it is worth examining the three elements of this standard and the relationship between them. Outlined below are some recent developments which may shed light on how tribunals will approach BAS. Science A comprehensive examination of the ways in which courts have approached the question of whether state action is based on ‘science’ is beyond the scope of this article. There are, however, a number of recent developments which offer useful insights. A key issue is the extent to which there are generally or internationally accepted criteria which courts may apply to determine whether or not conduct is based on ‘science’. This question arose in Whaling in the Antarctic (Australia v Japan: New Zealand intervening),12 in which the ICJ was asked to determine whether or not Japan’s JARPA II whaling programme fell within the scope of Article VIII(1) of the International Convention for the Regulation of Whaling (ICRW), authorizing state parties to issue ‘special permits’ to nationals to kill whales for the purposes of scientific research. Australia argued before the Court that JARPA II did not fall within Article VIII(1). In its submissions, Australia presented criteria which, it argued, could be used by the Court to assess whether JARPA II was in fact a programme for scientific research. Those criteria included having a testable or defined hypothesis and the production of peer-reviewed outputs. Although the context for the dispute was the ICRW regime and the evolution of non-lethal research standards relating to whales, the approach taken by the Court has wider relevance to disputes engaged with the issue of whether conduct is based on science so as to conform to BAS. The Court adopted a two-part review: When reviewing the grant of a special permit … the Court will assess, first, whether the programme under which these activities occur involves scientific research. Secondly, the Court will consider if the killing, taking and treating of whales is ‘for purposes of’ scientific research by examining whether … the programme’s design and implementation are reasonable in relation to achieving its stated objectives ….13 The Court considered the arguments put forward by Australia identifying specific aspects of scientific research that would need to be present for a programme to fall within Article VIII. In relation to peer review for example the Court observed: … even if peer review of proposals and results is common practice in the scientific community, it does not follow that a programme can be said to involve scientific research only if the proposals and the results are subjected to peer review. The Convention takes a different approach (while certainly not precluding peer review) …. Having considered the evidence relating to the proposed criteria, the Court was not persuaded: … that activities must satisfy the four criteria advanced by Australia in order to constitute ‘scientific research’ in the context of Article VIII. As formulated by Australia, these criteria appear largely to reflect what one of the experts that it called regards as well-conceived scientific research, rather than serving as an interpretation of the term as used in the Convention. Nor does the Court consider it necessary to devise alternative criteria or to offer a general definition of ‘scientific research’.14 Thus the Court did not set down a definition of ‘scientific research’, or of science: … JARPA II activities involving the lethal sampling of whales can broadly be characterized as ‘scientific research’. There is no need therefore, in the context of this case, to examine generally the concept of ‘scientific research’.15 However aspects of its enquiry into whether JARPA II was ‘for the purposes of’ scientific research such as to fall within Article VIII(1) ICRW, including its review of whether the design and implementation of the programme were ‘reasonable in relation to achieving the programme’s stated research objectives’ could be said to reflect elements which could be considered determinative of the prior question, as to whether this was a scientific research programme: the presence of research objectives and the extent of scientific output.16 The Court’s main focus, however, was on the use of lethal methods and the sample sizes and size of the actual take of JARPA II. This may serve to indicate, albeit in a different legal context, the difficulties which may arise in future disputes concerned with BAS, in distinguishing, in at least some cases, between the elements of ‘best’ and ‘science’. It may be that there will not always be a clear red line between the two and that tribunals will assess the two elements together. In future cases involving consideration of the BAS standard, the assessment of criteria for ‘well-conceived scientific research’ is likely to be highly relevant. This would presumably include some of the more generally applicable criteria presented by Australia such as the presence of a testable hypothesis and peer review. Whether courts approach BAS primarily through an examination of whether a programme is ‘science’ or whether it is the ‘best’ science remains to be seen and is likely to depend on the specific facts of the case and the precise legal context. The BAS standard does, however, appear likely to require an exploration of the design, methodology and outputs of the scientific basis for state action, as well as conformity to relevant best practice. The approach taken by the ICJ in Antarctic Whaling, suggests that, in relation to BAS, courts may feel more comfortable determining whether activity conforms to the ‘best’ science rather than whether it is ‘science’ as such, indeed that is what the BAS standard arguably requires. In the context of climate change, the work of the IPCC in collecting, reviewing and presenting a comprehensive body of scientific research has been of central importance in the evolution of the international regime, including the assessment of what is likely to constitute ‘dangerous anthropogenic interference with the climate system’.17 As is well documented, there is overwhelming scientific consensus on the central scientific issues: whether global warming is occurring and whether it is anthropogenic in origin.18 It is more likely that any dispute as to the application of BAS in the context of the PA will focus on whether state action conforms to the findings presented by the IPCC or, where specific issues are not addressed by the IPCC, BAS generally. There may be disputes where the implications of uncertainty are the key issue. In such cases, the tribunal is likely to move the debate towards a determination of what is ‘best’ rather than what is science, together with an evaluation of the legal implications, in a specific context, of precaution.19 In its 2011 Advisory Opinion, the ITLOS Seabed Disputes Chamber, in exploring the relationship between an obligation of due diligence and precaution, held that the obligation: applies in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks. A sponsoring State would not meet its obligation of due diligence if it disregarded those risks. Such disregard would amount to a failure to comply with the precautionary approach.20 In its 2015 Advisory Opinion, ITLOS noted that, in the context of a regional fisheries convention, conservation and management measures should be based on BAS and, when such evidence is insufficient, the precautionary approach should apply.21 Crucially, the absence of BAS was held by ITLOS to trigger the application of the precautionary principle, rather than the freedom to carry on regardless. A further issue that may arise in the context of climate change related disputes is the scope of the reference to ‘science’, given that neither the UNFCCC nor the PA define the term. It is however increasingly clear that socio-economic analysis plays an important part in the formulation of climate action and policy, including in areas such as adaptation and mitigation. The Parties to the PA have established a Global Goal on Adaptation, which aims to strengthen resilience and reduce vulnerability to climate change. Although the term resilience is not defined in the UNFCCC or the PA,22 the IPCC has defined resilience as: The ability of a social or ecological system to absorb disturbances while retaining the same basic structure and ways of functioning, the capacity for self-organization and the capacity to adapt to stress and change.23 Article 7(9)(e) PA refers to the resilience of socio-economic and ecological systems, picking up the scope of the IPCC definition. The question may arise as to whether the BAS standard includes assessments of the likely socio-economic impacts of a measure on resilience and whether this in turn brings in the elements of ‘best’ and ‘available’ to socio-economic analysis, given the deference with which many jurisdictions treat state assessments of socio-economic welfare. The IPCC explicitly addresses in its assessments, alongside scientific and technical information: ‘socio-economic information relevant to understanding the scientific basis of risk of human-induced climate change, its potential impacts and options for adaptation and mitigation.’24 The IPCC appears to distinguish such information from purely scientific information but in some contexts, such as assessing resilience, it may be difficult to disentangle the two. The importance of this lies partly in whether, post Paris, socio-economic information relied on as a basis for state action should also be the ‘best available’ to provide a legitimate basis for state action on climate change. This could arise in relation to decisions as to how best to address adaptation needs including in relation to impacts on food security or DRR, on the basis that the social dimension of these impacts should be considered according to the same evidential rigour as the scientific dimension under BAS. Best In determining what is the best available science, tribunals are likely to be directed to best practice within the scientific communities concerned. Evidence which does not adhere to such best practice may be considered to fall outside BAS, absent some compelling explanation from the party offering the evidence in question. Increasingly, scientific bodies advising international environmental regimes have adopted best practice guidelines and principles and these are likely to inform any assessment of what scientific advice is the ‘best’ and therefore meets the BAS standard. A number of Regional Fisheries Management Organisations (RFMOs) have subjected themselves to performance reviews as to the approach taken to securing scientific advice. The concerns expressed range from ensuring an inclusive approach to obtaining such advice,25 to independence,26 transparency27 and peer review.28 The Indian Ocean Tuna Commission (IOTC) is one of those to have undertaken a comprehensive review of this kind.29 By IOTC Recommendation 12/15 on Best Available Science, Parties undertook to: … preserve and promote the professional independence and excellence of the IOTC Scientific Committee and its Working Parties, and the relevance of their work to the information needs of the Commission. The Resolution highlighted areas which future rules needed to address, including those ensuring the ‘quality, relevance and professional independence of scientific activities’. Such rules should also ensure that: relevant, professionally independent and objective scientific advice, based on the best available and peer-reviewed scientific analysis, is presented by the IOTC Scientific Committee to the Commission ….30 Further areas to be addressed included the strengthening of peer review mechanisms31 and supporting the publication of findings in the peer-reviewed academic literature.32 The emergence of more transparent discussion of the governance aspect of scientific input into international treaty regimes is likely to inform the application of BAS. This is because the adoption of what might be termed ‘good governance standards’ in international environmental fora provide a way of assessing whether the science presented by Parties in support of their actions is indeed the ‘best’ available. Common approaches to issues such as independence, transparency and peer review are likely to emerge as generally accepted principles which it will become increasingly difficult to depart from, or at least to justify departing from, in a court of law called upon to determine compliance with BAS. Where issues are raised as to the independent functioning of specific bodies, they can be held to account against governance standards that they have adopted or that have emerged as agreed good practice. In the context of climate change, the IPCC has adopted a set of principles governing its work,33 which state that: The role of the IPCC is to assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic information relevant to understanding the scientific basis of risk of human-induced climate change, its potential impacts and options for adaptation and mitigation. IPCC reports should be neutral with respect to policy, although they may need to deal objectively with scientific, technical and socio-economic factors relevant to the application of particular policies. … Review is an essential part of the IPCC process ….34 Procedures for the preparation, approval and adoption of IPCC reports are given in Appendix A to the Principles: … First, the best possible scientific and technical advice should be included so that the IPCC Reports represent the latest scientific, technical and socio-economic findings and are as comprehensive as possible. Secondly, a wide circulation process, ensuring representation of independent experts … from developing and developed countries and countries with economies in transition should aim to involve as many experts as possible in the IPCC process. Thirdly, the review process should be objective, open and transparent …. Adherence to these procedures would appear likely to fulfil BAS and establish a standard by which to measure scientific input that is derived outside the IPCC process. In future disputes, tribunals may wish to examine whether scientific evidence adduced by parties has been produced according to these standards and may require experts to explain any departure from them, for example as to a lack of engagement with the latest evidence on a particular issue, or a lack of transparency. In ICJ Argentina v Uruguay (Pulp Mills), the Parties disagreed as to the comparative ‘authority and reliability’ of scientific evidence prepared by a Party’s experts, as compared to that prepared by experts of the International Finance Corporation.35 The ICJ however declined to rule generally on the respective merits or independence of the scientific evidence presented by the Parties: … the Court does not find it necessary in order to adjudicate the present case to enter into a general discussion on the relative merits, reliability and authority of the documents and studies prepared by the experts and consultants of the Parties. It needs only to be mindful of the fact that … it is the responsibility of the Court, after having given careful consideration to all the evidence placed before it by the Parties, to determine which facts must be considered relevant, to assess their probative value, and to draw conclusions from them as appropriate.36 The Court held that both Parties were under an obligation of due diligence, a duty of conduct not of result, in protecting the environment of the river.37 The Court found that Argentina had not demonstrated that Uruguay had not complied with its duties of due diligence.38 The Court did not make specific findings on the respective merits of all the scientific evidence presented, focussing instead on compliance with existing regulatory standards.39 On some issues, the Court found the points raised by Argentina to be unproven.40 The Court also indicated that those providing scientific or technical evidence should in future appear as experts, witnesses, or both, before the Court so that they are made available for cross examination and questioning.41 It is likely that in future cases where BAS is directly at issue, tribunals will have to address the ‘relative merits, reliability and authority’ of the science underpinning the decision or action under review, even looking beyond regulatory compliance. Tribunals may need to address closely disputes between parties as to which set of evidence constituted the ‘best available’ basis on which to take or defend action. The need for cross examination of experts in such cases, as directed by the ICJ for cases following Pulp Mills, appears clear. As discussed above, the assessment of what science is ‘best’ is likely to necessitate an examination of conformity to best practice and may even go beyond compliance with existing regulatory standards if the evidence as to what is ‘best’ and ‘available’ indicates that more is required. In future cases involving the BAS standard it may be that an assessment of what is ‘best’ simply takes the form of examining whether agreed international best practice has been adhered to. However, the precise scope and content of a requirement to base a decision on BAS will depend on the wording of the provision concerned, as interpreted in accordance with the general rule of interpretation under Article 31 of the Vienna Convention on the Law of Treaties (VCLT),42 including in the context and in the light of the instrument’s object and purpose. To the extent that relevant best practice has emerged by way of subsequent agreement or subsequent practice, tribunals may be required to take it into account in accordance with Article 31(3) VCLT. The types of best practice adopted by the IPCC and many RFMOs may emerge as generally accepted governance principles in international fora, as well as in national courts. A full survey of national decisions which have addressed these issues is beyond the scope of this article; however, an interesting recent example is the decision of the UK High Court in Tobacco Packaging.43 Proceedings for judicial review were brought in the UK by manufacturers of tobacco products challenging the Standardised Packaging of Tobacco Products Regulations 2015 as unlawful under the international law, EU law and domestic common law. As noted by the Court, the decision to introduce the UK Regulations was largely in furtherance of the policy laid down by the World Health Organization (WHO) in the 2004 Framework Convention on Tobacco Control (FCTC). One of the grounds of challenge concerned the treatment of expert evidence served by the Claimant manufacturers during the consultation process leading up to the adoption of the Regulations. The Claimants argued that the Government acted unlawfully because it attributed only limited weight to this evidence on the basis that it lacked independence and otherwise failed to meet best practice standards for the preparation of evidence. As noted in the judgment, the Government’s position was that the generality of the evidence of the tobacco companies was not in compliance with methodological best practice accepted worldwide by the scientific and technical research communities, including by reference to the importance of peer review of research results; the independence of researchers and experts from vested interests and the practice of the tobacco company experts of ignoring or dismissing the pre-existing and adverse literature. The Claimants criticized the best practice standards which the Secretary of State relied upon to evaluate evidence. The Judge observed that this ground of challenge engaged, inter alia, with ordinary common law principles of evidence and how a Court, in the context of a judicial review, should evaluate expert and other evidence.44 He held that the UK Government was entitled to conclude that the tobacco companies’ evidence did fall below acceptable standards during the consultation. He referred in this regard to findings of the US courts and conclusions reached by the WHO. He commented: The requirement that experts should act with transparency and accountability is hardly surprising. It is in fact the cornerstone of the ‘best practice’ regimes applied by regulators worldwide when they seek to evaluate empirical evidence advanced by companies … under investigation … one of the Claimants’ own experts described the principles of transparency and openness as the ‘foundational tablets of the scientific enterprise’. The approach now adopted by the international research community and by regulators represents common sense rules of evaluation which resonate strongly in a case such as the present. Further these principles are consistent with the obligations which experts and parties owe to the Court and which are required under the [rules] … which govern civil litigation in this jurisdiction …. I have accordingly sought to apply these principles to all of the evidence before me, from whatever source. I have applied the sorts of methodological standards that in my judgment are world-wide norms and which make sense to apply to the present facts ….45 In my judgment the best practice principles are just that - ‘best’ practice. They are tried and tested across the international scientific, medical, social science, legal and economic communities. These principles fall, neatly, under the broad heading of ‘transparency’ referred to in the FCTC; and they are logical forensic tools to be applied by a Court to evaluate evidence. Applying these standards I have rejected the Claimants’ challenge to the manner in which their evidence has been treated.46 He also stated that: It is an almost impossible task for a Court … to assess the accuracy of the entirety of a vast body of evidence … this case serves to highlight the importance of the Court having available to it methodological tools, such as research best practice guidelines and principles, with which to assess the evidence.47 In the light of the emergence of explicit best practice guidelines in a number of international scientific fora and of the potential need to review what is the ‘best’ available science in future disputes, it seems likely that tribunals will increasingly be directed to these standards. States, public authorities, or other entities, which have based decisions or positions on science which does not conform to such standards will, at the very least, be called upon to explain why not. Available Availability may suggest simply that for a decision-maker to ignore an existing body of scientific evidence in favour of another, without proper consideration of their respective merits breaches the BAS standard. It may accordingly imply a due diligence standard in reaching decisions to which BAS is applied. It may also imply a more proactive element in the development of the science on which key decisions, such as those arising under the PA, depend. The element of ‘availability’ may import a duty on the part of international scientific bodies, and the states which participate in them, to ensure that scientific advice is achieved in an inclusive way and to addresses issues comprehensively, including, for example, conducting research on localized environmental impacts in countries with limited access to relevant scientific expertise. The IOTC has highlighted these issues as part of its performance review: Aware that the availability of adequate scientific information is fundamental to carrying out the objectives of the IOTC Agreement … Recognising the limited financial resources of developing coastal States and wishing to assist in building their scientific capacity … Acknowledging the need to improve the availability and quality of data and analysis used for the provision of scientific advice ….48 The 2013 IOTC Performance Review took this issue up, noting that: At present, some IOTC CPCs have much greater scientific capacity and engagement than others, which can lead to a real or perceived loss of objectivity in the advice produced. … fostering more engagement by developing coastal state scientists into the science process through the activities instituted in the past few years is likely to improve the scientific process and outcomes.49 The IPCC Principles also address inclusion and availability.50 Human rights law is also relevant in this regard, as noted by the Office of the United Nations High Commissioner for Human Rights: The International Covenant on Economic, Social and Cultural Rights states that everyone has the right to enjoy the benefits of science and its applications. All States should actively support the development and dissemination of new climate mitigation and adaptation technologies including technologies for sustainable production and consumption.51 The PA emphasizes the need to integrate human rights standards into the implementation of the PA: Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights ….52 This could imply that human rights relevant to application of BAS should be applied by states in implementing the PA. The BAS standard may also entail a duty of cooperation through competent international organizations, expressed as a duty to make sure that the best science is ‘available’ in such a way as to support the goals of the regime concerned. The relationship between what is ‘best’ and what is ‘available’ therefore appears to be one of mutual reinforcement. Scientific processes which do not address disparities in resources risk inadequate coverage and input, undermining fulfilment of other aspects of best practice such as objectivity and thus undermining consistency with BAS. CONCLUSION Tribunals may increasingly follow a forensic trail of the process by which the scientific advice on which states base decisions has been derived, including scrutiny of: the reasons for any lack of peer reviewed output or of transparency, and any failure to cooperate with relevant international bodies or engage with their findings. Gaps in the available science, for example in respect of localized or regional environmental impacts, may also come under increased scrutiny, particularly in the light of an increased focus on inclusive participation in international scientific fora. Experts are likely to be asked to address these issues in giving evidence before tribunals. Footnotes 1 Paris, 12 December 2015, in force 4 November 2016. 2 See UNCLOS A61(2) and A119. Other formulations referring to scientific standards include variations on ‘sound science’, see for example A15 of the Cartagena Protocol on Biosafety. 3 The IPCC defines mitigation as: ‘An anthropogenic intervention to reduce the sources or enhance the sinks of greenhouse gases’ IPCC 2001 Synthesis Report Annex B. The term is not defined in the UNFCCC or the PA. 4 A4(1) PA. 5 The IPCC defines adaptation as ‘adjustments in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities’ (IPCC, 2008: 869). 6 A7(5) PA. 7 A14(1) PA. 8 A4(1) PA. 9 A4(1) PA. 10 A4(2) requires Parties to ‘prepare, communicate and maintain successive NDCs that it intends to achieve’ and also to ‘pursue domestic mitigation measures’ with the aim of achieving the objectives of the NDC. 11 A2 PA. 12 Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (Judgment), 31 March 2014. The author acted as Counsel to Australia in this case before the ICJ. Any views expressed here are purely personal and should not be taken as representing the position of Australia. 13 Para 67 of the Judgment. 14 Para 86 of the Judgment. 15 Judgment at para 88. 16 As to the latter see para 219 of the judgment. 17 For an extensive analysis see DH Rashed, ‘The IPCC: Holding Science and Policy to Account’ (2014) Yearbook Int Environ L 24(1): 3–36. 18 <https://climate.nasa.gov/scientific-consensus/ Scientific consensus: Earth’s Climate is Warming> accessed 9 April 2018. 19 UNFCCC A3(3). 20 Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request For Advisory Opinion Submitted To The Seabed Disputes Chamber) List Of Cases: No 17 Advisory Opinion of 1 February 2011, para 131. 21 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), 2 April 2015, para 208 (ii). 22 As 2(1)(b), 7, 8 and 10 and A1 UNFCCC. 23 IPCC AR4, 2007. 24 See IPCC Principles adopted in 1998 and last amended in 2013, para 2 cited below. 25 International Commission for the Conservation of Atlantic Tunas Resolution 11/17 on Best Available Science, para 1. 26 Inter-American Tropical Tuna Commission Recommendation C-12-10 of June 2012 on Best Available Science, para 2. 27 Western and Central Pacific Fisheries Commission Resolution 12-01, para 2. 28 ICCAT Resolution 11/17 on Best Available Science, para 3. 29 The UN Food and Agriculture Organization (FAO) Committee agreed in March 2007, on the need for all RFMOs to undertake performance reviews. The IOTC recommendations arose from such a performance review. 30 See para 2 of IOTC Resolution 12/15. 31 See para 3 of IOTC Recommendation 12/15. 32 Among the 2013 recommendations was that an independent peer review process for stock assessments be implemented if IOTC science ‘is to be considered to be in line with best practice and to maintain a high standard of quality assurance’. 33 https://www.ipcc.ch/pdf/ipcc-principles/ipcc-principles.pdf 34 Principles Governing IPCC Work, approved at the Fourteenth Session in October 1998, last amended at the Thirty-Seventh Session, October 2013. 35 Merits, Judgment of 20 April 2010, ICJ Reports 2010, para 167. 36 Pulp Mills, judgment ibid, para 168. 37 Pulp Mills, judgment, paras 187–89, 197. 38 Pulp Mills, judgment, paras 180, 189. 39 Pulp Mills, judgment, paras 212–14. 40 Pulp Mills, judgment, para 250. 41 Pulp Mills, judgment, para 167. 42 Vienna, 23 May 1969; in force 27 January 1980. 43 The Queen on the Application of British American Tobacco (UK) Limited and Others v Secretary of State for Health [2016] EWHC 1169 (Admin) Judgment of Mr Justice Green 19 May 2016 (upheld on appeal). 44 Tobacco Packaging, para 281. 45 Tobacco Packaging, paras 22–23. 46 Tobacco Packaging, para 28. 47 Tobacco Packaging, para 288. 48 IOTC Resolution 12/15 on Best Available Science. 49 IOTC 2013 Performance Review, paras 109–10. 50 Appendix A paras 4.3.1 and 4.6.2. 51 OHCHR Submission to COP 21, p 4. 52 Preamble to the PA. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Bennouna, Mohamed

2018 Journal of International Dispute Settlement

doi: 10.1093/jnlids/idy009

Abstract International courts and tribunals are dealing with an increasing number of cases involving complex technical and scientific issues. In doing so, the facts at hand may fall outside the realm of a respective body’s judicial expertise. This article examines the role of experts before the International Court of Justice, delineating the respective advantages and disadvantages of proceedings involving Court-appointed experts, and those that proceed with the party-appointed experts only. In doing so, this article looks at the existing case law, statute and rules of the Court, as well as the actual utility of experts in legal proceedings. 1. INTRODUCTION The International Court of Justice (ICJ) is no different from other international courts and tribunals in that it deals with an increasing number of cases in which the determination of key issues requires technical or scientific expertise that lies outside the realm of the Court’s judicial expertise. This article will focus on the role and involvement of experts in proceedings before the ICJ, as well as the advantages and disadvantages of using party-appointed experts as compared to those appointed by the Court. There is a fundamental question as to the actual role of experts and the weight the Court places (or should place) on their findings in deciding the dispute before it. Experts are appointed by the Court or used by the parties in order to provide their expert opinion on scientific or technical matters, not to draw inferences on facts or legal issues. As the Court stated in the Application for Revision and Interpretation (Tunisia/Libya), ‘the purpose of the expert opinion must be to assist the Court in giving judgment upon the issues submitted to it for decision’.1 It is the Court’s role to determine the legal dispute arising in connection with such technical and scientific matters. In other words, the Court is free to deviate from and adopt a different view from the expert. As noted by Anna Riddell, the Court must approach expert evidence with a degree of caution, for at the end of the day it is ‘evidence of opinion, rather than fact, and as such, it must be borne in mind that even highly qualified experts may be wrong’.2 This holds true whether the experts are appointed by the parties or by the Court itself. 2. VARIOUS FORMS OF EXPERT INVOLVEMENT BEFORE THE ICJ The Court has two options when it comes to scientific or technical evidence: (i) either to defer to the parties which would engage experts and present their findings; or (ii) to appoint its own experts. A. Party-appointed Experts The ICJ, like other courts and tribunals, has generally preferred that the parties engage their own experts and present their findings to the Court.3 The parties are generally free to select, examine, and cross-examine experts as they see fit. In the Pulp Mills case, the Court clarified that party-appointed experts should not act as advocates for the party who has appointed them: [T]hose persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court.4 With this important consideration in mind, I will now turn to the advantages and disadvantages for the parties in using party-appointed experts. The obvious advantage of party-appointed experts is that each party runs the process starting from the selection of its expert and ending with cross-examination of the expert of the other party before the Court, it has full control over how this expert evidence is presented to the Court and can put forward its case on why the evidence of its expert should be preferred to that of its opponent (e.g. in respect of the content of the relevant expert’s opinion and their credibility). In comparison, the parties do not have the same opportunity to test the evidence of a Court-appointed expert. The parties are only given the opportunity to comment upon the Court-appointed expert’s findings—examination and/or cross-examination of a Court-appointed expert has to date not taken place, which can be contrasted with the practice of international arbitral proceedings.5 As a practical point, the parties bear the costs of hiring their own experts unless otherwise decided by the Court.6 Should it appoint its own experts, the Court must request additional funds from the United Nations (UN) General Assembly. A potential disadvantage of relying solely on party-appointed experts is that, even with the most effective cross-examination, the Court may still not be in a position to assess the relative credibility of the expert evidence of one party over the other. This may occur where there is considerable and evolving scientific debate on a given issue [as was the case, for example, with the beef hormones dispute before the World Trade Organization (WTO)],7 such that both party-appointed experts are able to present credible opinions on a particular issue. In such circumstances, the additional guidance provided to the Court by a Court-appointed expert may play an important role. B. Court-appointed Experts The Court has the power to appoint experts under Article 50 of its Statute, which provides that: The Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion.8 Article 62(1) of the Rules of the Court further provides that: The Court may at any time call upon the parties to produce such evidence or to give such explanations as the Court may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose [emphasis added].9 On this basis, in order to determine the disputed facts in complex scientific or technical cases, the Court may request further explanations from the parties and then decide to formally appoint an expert in consultation with the parties. Judge Gaja accurately discerns that the reference to ‘any time’, as spelled out in Article 50 of the ICJ Statute, allows the Court to request an expert opinion at the time of its choosing, including during the deliberations after oral hearings.10 However, throughout its history, the Court has rarely appointed its own experts.11 Several judges, in their individual capacity, have criticized the Court’s reluctance to appoint its own experts in a number of cases.12 In my view, such appointments should be an exception rather than the rule, as I will explain below. For example, in the Pulp Mills case, the Court was criticized for not having resorted to expert assistance, as provided for in Article 50 of its Statute.13 However, the Court must be convinced of the need for such expert assistance in the first place. The Court must also be convinced that the evidence and the adversarial approach of the parties have not allowed it to rule on the relevant issues in the circumstances of the case. This was not the case in the Pulp Mills dispute. As Judge Keith emphasized in his opinion: So far as the quality of the information provided by the two Parties is concerned, neither Party challenged any of the detail of the data, many thousands of items, gathered by the monitoring stations, up and down the river and at the effluent point at the plant, and recorded in the many tables included in the documents before the Court. Rather, they disagreed about how those data were to be interpreted.14 The Court was also criticized in the same case for having used, what some have called, rather abusively in my view, experts fantômes (ghost experts). But, in reality, these are neither experts in the sense attributed to them under the Statute, nor ghosts. They are merely assistants to the Registrar who are recruited for a fixed period of time. They are placed at the disposal of Members of the Court who would like to consult with them in order to understand and clarify certain technical or scientific elements at dispute in a given case. Just as Court-appointed experts discussed above, these neutral assistants can serve an important role in elucidating complex scientific concepts, while not impeding the efficiency or expediency of the Court. A further manner by which Members of the Court may seek consultation with experts is through the use of assessors. According to Article 30(2) of the ICJ Statute, ‘[t]he Rules of the Court may provide for assessors to sit with the Court or with any of its chambers, without the right to vote.’15 Such a procedure would allow members to consult with assessors during deliberations on technical and scientific questions, gaining further clarity during discussions with fellow members. Article 289 of the UN Convention on the Law of the Sea (UNCLOS) provides for a similar procedure to be used by the Court, ITLOS, or arbitral tribunals interpreting UNCLOS, in which no fewer than two experts may sit with the adjudicatory tribunal and deliberate without voting, akin to the role of assessors.16 Such an assessor appointment would be advantageous in that it would allow the Members to consult an expert during the very final stages of a deliberation. However, this must be balanced with the potential that assessors may wield excessive influence on the adjudicatory outcome. As of today, assessors have never been used by the Court.17 A possible disadvantage of using Court-appointed experts lies in the process for the selection of experts. The Court may not always have the required know-how, in the moment, to ensure an objective selection process. There is, of course, the possibility of referring to an outside body to make the appointment as has been done, for example, in the Indus Waters Kishenganga arbitration (where the rector of the Imperial College of London was requested to appoint the Engineer Member of the Tribunal),18 but such delegation is not without its own risks when dealing with sensitive inter-State disputes. In practice, unless the procedure for the appointment of experts is provided in a treaty or special agreement,19 there is no body that could by default serve as an appointing authority for experts, and to which the Court could defer. Varying methods of expert selection have been contemplated in the scholarly literature, yet I am not convinced that they are entirely necessary, given the Court’s ability to employ a thorough and rigorous selection process when it deems expert input imperative. Scholars have floated ideas of pre-trial procedures in chambers,20 the appointment of special masters as fact-finders,21 a standing ICJ ‘Scientific Advisory Body’,22 and resort to international organizations for expert consultation.23 However, on their merits, each of these options takes away the fundamental need in expert selection: flexibility. Cases before the Court do often raise complex and precise questions which a standing body may not be able to answer, which may not be fully elaborated in pre-trial procedure, or upon which international organizations may not have an entirely objective view. Given the breadth and diversity of cases before the Court, the ICJ needs to retain a large degree of discretion in the way it selects its own experts. Further, the Statute and the Rules of the Court are silent on the required qualifications of experts. This raises a question mark as to the weight the Court should place on the findings of experts, in the absence of any objective benchmark for assessing their qualifications in the first place. This said, the ICJ has in the past given the parties an opportunity to comment on the subject of the expert opinion, the number of experts, and their mode of appointment and the procedure to be followed.24 In my view, a more fundamental issue is one of the utility of Court-appointed expert evidence. The role of the Court is to settle disputes submitted to it on the basis of the facts identified and presented to it by the parties. While there may be significant benefit in having an expert report, for example, in assessing monetary value of the expropriated property (Chorzów Factory),25 damage to property (Corfu Channel)26 or damage to the environment, I am less convinced that there is always an added value of Court-appointed experts for the effective discharge of the Court’s judicial function. In any event, the role and mandate conferred upon an expert must be circumscribed to that of establishing and assessing the technical and scientific elements of the evidence in a given case. It is for the judges to derive legal consequences from that assessment in the context of the settlement of a given dispute. A specific situation in which a Court-appointed expert could be useful occurs when one side to a dispute fails to appear before the Court. For instance, Article 9 of Annex VII of UNCLOS requires a tribunal to ‘satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law’.27 The ICJ Statute repeats this requirement in similar terms: Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim. The Court must, before doing so, satisfy itself, not only that it has jurisdiction … but also that the claim is well founded in fact and law.28 As part of this heightened responsibility of ensuring that the claim is well founded in fact and law in cases of non-participation of one of the parties, the Court could appoint its own experts on certain technical and scientific matters. For example, in a recent South China Sea (Philippines v China) arbitration, the tribunal noted that, in light of China’s non-participation in the proceedings, it had to be ‘particularly vigilant with respect to establishing whether the Philippines’ claims are well founded in fact and in law’. The tribunal ‘has done so, for example, by retaining independent experts on technical matters raised by the Philippines’ pleadings’.29 The tribunal appointed an expert hydrographer, experts on the environmental impact of Chinese construction on coral reef systems, and an independent expert opinion on Philippines’ evidence on navigation safety issues.30 More generally, inter-state arbitral tribunals have increasingly resorted to appointing their own experts,31 often combining their input with site visits by the tribunal itself.32 3. CONCLUSION In conclusion, it is the primary duty of the parties to bring the facts before the Court. It is also primarily for the parties to shed light on any technical or scientific matters, including through submission of expert evidence. Of course, in certain circumstances it may be helpful for the Court to appoint its own expert, particularly where the opinions of the experts presented by the parties diverge significantly or a party fails to appear. However, while the Court does have the power to appoint its own experts, it must exercise this power with utmost caution. Footnotes 1 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v Libyan Arab Jamahiriya), Judgment [1985] ICJ Rep 192, 228, para 65. 2 A Riddell, ‘Scientific Evidence in the International Court of Justice — Problems and Possibilities’ (2009) 20 FYIL 229, 234. See also Temple of Preah Vihear (Cambodia v Thailand) (Merits), Judgment [1962] ICJ Rep 6, Separate Opinion of Judge Fitzmaurice, 52, 58–59. 3 The International Tribunal for the Law of the Sea (ITLOS) adheres to similar preferences. 4 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment [2010] ICJ Rep 14, 72, para 167 [hereafter, Pulp Mills]. 5 ICJ, Rules of the Court (adopted 14 April 1978), printed in Acts and Documents No 6 (The Hague: ICJ, 2007), art 67(2) [hereafter, Rules of the Court]. See Indus Waters Kishenganga Arbitration, Pakistan v India, Partial Award, PCA Case No 2011-01, ICGJ 476 (PCA 2013), 18 February 2013, paras 111 and 117 [hereafter, Indus Waters] (the arbitral tribunal insisted that cross-examination take place physically before the tribunal, holding that any alternative arrangement could lead to ‘serious issues of procedural fairness’ and interfere with ‘due process rights’). 6 UN, Statute of the International Court of Justice, 18 April 1946, art 64 [hereafter, ICJ Statute]. 7 Panel Reports, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS48/R/CAN (Canada) / WT/DS26/R/USA (USA), adopted 13 February 1998, as modified by Appellate Body Report WT/DS26/AB/R, WT/DS48/AB/R, DSR 1998:II, 235 / DSR 1998:II, 699. 8 ICJ Statute (n 6) arts 50–51; Rules of the Court (n 5) art 67. 9 Rules of the Court (n 5) art 62(1). 10 G Gaja, ‘Assessing Expert Evidence in the ICJ’ (2016) 15 The Law and Practice of International Courts and Tribunals 409, 417. 11 See Corfu Channel case (Merits), Judgment of 9 April 1949 [1949] ICJ Rep 4, 20–22; Corfu Channel case (Assessment of the Amount of Compensation due from the People's Republic of Albania to the United Kingdom of Great Britain and Northern Ireland), Judgment of 15 December 1949, [1949] ICJ Rep 244 (hereafter, Corfu Channel (Compensation Judgment)); Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Appointment of Expert, Order of 30 March 1984, [1984] ICJ Rep 166; and, most recently, Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua), Order of 31 May 2016, [2016] ICJ Rep 235; ibid, Order of 16 June 2016, [2016] ICJ Rep 240. 12 See eg Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgment [1962] ICJ Rep 6, Dissenting Opinion of Judge Koo 75, 100, para 55; Kasikili/Sedudu Island (Botswana/Namibia), Judgment [1996] ICJ Rep 1045, Separate Opinion of Judge Oda 1116, 1119, para 6; Pulp Mills (n 4) Joint Dissenting Opinion of Judges Al-Khasawneh and Simma 108, 112, para 9, Declaration of Judge Yusuf 216, 217, para 5, Dissenting Opinion of Judge ad hoc Vinuesa 266, 291, para 95. 13 Pulp Mills (n 4) Joint Dissenting Opinion of Judges Al-Khasawneh and Simma 108, 110, paras 4–10, Declaration of Judge Yusuf 216, Separate Opinion of Judge Cançado Trindade 135, 190, paras 149–51, Separate Opinion of Judge ad hoc Vinuesa 266, 284ff, paras 70ff. 14 Pulp Mills (n 4) Separate Opinion of Judge Keith 121, 123, para 7. 15 ICJ Statute (n 6) art 30(2); Rules of the Court (n 5) art 9. 16 UN Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 3, art 289 [UNCLOS]. 17 Gaja (n 10) 418; C Foster, Science and the Precautionary Principle in International Courts and Tribunals: Experts Evidence, Burden of Proof and Finality (2011) 128. 18 Indus Waters (n 5), para 14. 19 See the Compromis in Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America), Merits, Judgment of 12 October 1984, [1984] ICJ Rep 246, 253 (Compromis, art II.3), where the USA and Canada jointly requested that the Court appoint a technical expert in order to assist in delimiting the maritime boundary. 20 See D Peat, ‘The Use of Court-Appointed Experts by the International Court of Justice’ (2014) 84 BYBIL 271, 300–02. 21 See K Highet, ‘Evidence and Proof of Facts’, in L Fisler Damrosch (ed), The International Court of Justice at a Crossroads (1987) 355, 372. 22 See JG Sandoval Coutasse and E Sweeney-Samuelson, ‘Adjudicating Conflicts over Resources: The ICJ’s Treatment of Technical Evidence in the Pulp Mills Case’ (2011) 3 Göttingen JIL 447, 466–67. 23 Peat (n 20) 294. 24 See eg Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment, [2014] ICJ Rep 226, 236, paras 14–17; see also MM Mbengue, ‘Scientific Fact-finding at the International Court of Justice: An Appraisal in the Aftermath of the Whaling Case’ (2016) LJIL 529, 550. 25 Factory at Chorzów (Germany v Poland), Judgment [1928] PCIJ 13. 26 Corfu Channel case (Assessment of the Amount of Compensation due from the People’s Republic of Albania to the United Kingdom of Great Britain and Northern Ireland), Judgment of 15 December 1949, [1949] ICJ Rep 244. 27 UNCLOS (n 16) art 9, Annex VII. 28 ICJ Statute (n 6) art 53. 29 South China Sea Arbitration, Philippines v China, Award, PCA Case No 2013-19, ICGJ 495 (PCA 2016), 12 July 2015, para 15. 30 ibid, paras 58, 84(b) and 84(c). 31 See eg Guyana v Suriname, Award, ICGJ 370 (PCA 2007), 17 September 2007, 17; Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India, Bangladesh v India, Final Award, ICGJ 479 (PCA 2014), 7 July 2014, paras 15–17 [hereafter, Bay of Bengal]. 32 See eg Bay of Bengal, ibid; Indus Waters (n 5) paras 33–40 and 77–88. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Goldstein, Marisa

2018 Journal of International Dispute Settlement

doi: 10.1093/jnlids/idy017

Abstract Since the entry into force of the WTO multilateral trade agreements and dispute settlement mechanism, WTO panels have been relying on other international organizations and scientific and technical experts to assist them in their appreciation of the evidence presented by the disputing Members. The principle of consulting experts is contained in specific provisions of the Understanding on Rules and Procedures Governing the Settlement of Disputes and other WTO agreements. However, the specifics of the procedures have been developed by panels over time with particular guidance from the Appellate Body on how panels are supposed to undertake their tasks. This article will look briefly at the legal basis for consulting experts and international organizations in WTO dispute settlement, the process of consulting experts and international organizations and finally at the procedural steps taken by panels to ensure that the process is fair, objective and unbiased. 1. THE LEGAL BASIS FOR CONSULTING EXPERTS AND INTERNATIONAL ORGANIZATIONS IN WTO DISPUTE SETTLEMENT The dispute settlement mechanism of the General Agreement on Tariffs and Trade (GATT) had a tradition of being much more focused on the legal violation than whether the measure (law, regulation, practice, act or omission) of the responding Member was actually affecting international trade. Indeed, in the days of the GATT dispute settlement there was no mention of evidence, facts were not really that relevant and often there were no lawyers. In those days the idea was that establishing a legal violation (eg that the measure was on its face inconsistent with GATT norms) was sufficient to establish nullification of benefits. Indeed, a Member could bring a claim against a measure (law, regulation, practice, act or omission) of another Member even if it did not affect its own trade. This principle is now codified in Article 3.8 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, in the EC – Bananas dispute, the Appellate Body early on ruled that in WTO dispute settlement, legal and economic interests are to be presumed.1 Therefore, the issue of evidence has not been a traditional issue in international trade law. With the advent of the WTO and its multilateral agreements on trade in goods, in particular the Agreement on the Application of Sanitary and Phytosanitary measures (SPS) and the Agreement on Technical Barriers to Trade (TBT) as well as the trade remedies agreements, the issue of facts and in particular the issue of expert evidence became more important. Article 11 of the DSU requires panels to make an objective assessment of the matter—including both the law and the facts.2 Article 12.7 of the DSU requires panels to make findings of fact in their reports.3 Article 13 of the DSU also enables panels to seek information from any source and to consult experts on technical issues.4 Article 17.6 of the DSU limits appeals to issues of law covered in the panel report and legal interpretations developed by the panel. Thus, the DSU recognized that facts and evidence were going to become more important in dispute settlement once the WTO and its additional multilateral agreements on trade in goods came into existence and that it would be panels that would be the ones making the findings of fact. Although the DSU specifically recognizes panels as the triers of fact, it does not reference how panels will appreciate the facts and there are no specific rules on the types or standards of evidence required to establish facts. Through practice, the Appellate Body has established that the burden of proof for the complainant or one asserting a fact is the general understanding of prima facie case, with the opportunity of rebuttal.5 However, no standard of proof (clear and convincing, probable, beyond a reasonable doubt) has been established. As we see more disputes under agreements such as the SPS and TBT, we see more fact-based claims that raise the issues of evidence; experts and international organizations; and procedural and substantive due process concerns. We turn to the specific questions that have arisen in this context. 2. USING EXPERTS IN WTO DISPUTE SETTLEMENT The question arises, what do we mean when we refer to experts being used in dispute settlement? The term can refer to our adjudicators—the panelists (or members of panels or arbitration) and Appellate Body Members, the Secretariat lawyers assisting them, other Secretariat staff, the experts of the parties, individual experts engaged to assist the panel or the international organizations whose standards are relevant to the WTO agreements. This article focuses on the latter two. A. Outside Experts As noted above, outside experts are particularly common in disputes under the SPS Agreement.6 These SPS disputes often involve complex scientific concepts and issues about the sanitary or phytosanitary conditions in a particular Member or of the risk posed by a particular product to human, animal or plant life or health. Indeed, Article 11.2 of the SPS Agreement states that panels should seek out expert advice in disputes under the agreement. There is a particular distinction between the WTO and other international adjudicatory bodies, such as the International Court of Justice, International Tribunal for the Law of the Sea or a bilateral arbitration: the WTO dispute settlement mechanism is considered to be quasi-judicial. The process is not only legal, but also diplomatic. Thus, typical litigation principles and practices do not always apply. The nature of WTO dispute settlement does not lend itself to the idea of a witness taking the stand and being questioned as part of a case in chief and then being cross-examined. Therefore, instead of weighing and balancing the testimony of independent experts proffered by one or the other party,7 the panel instead engages its own experts to assist it in evaluating the evidence presented and whether it sufficiently supports the arguments of the parties. In respect of safeguarding this process and ensuring it is impartial and fair, the panels have to focus on three issues: (i) how the experts are selected; (ii) how they are consulted; and (iii) how their inputs are utilized by the panel in arriving at its own conclusions. There are no specific rules in the DSU on how a panel should go about consulting individual experts.8 Therefore, panels adopt detailed working procedures,9 in consultation with the parties, on how the process will take place. The working procedures cover how the experts will be selected, the provision of the parties' submissions and exhibits to the experts, how the questions will be asked, the conduct of the hearing and the transcript. These working procedures are adopted after consultation with the parties. All these additional steps necessarily have an effect on the timeline of the proceeding.10 When panels engage individual outside experts, those experts are also required to sign the Rules of Conduct. Experts (like panelists) are compensated for their time at a daily rate, since 2016, of 900 CHF a day if non-governmental, 300 CHF if governmental (and allowed by employer to accept the remuneration), per diem while in Geneva, and business class travel. That this financial compensation comes directly from the WTO as opposed to one of the parties is another assurance of impartiality and dedication to the system as opposed to one party or the other. B. Selection of Experts Panels involve parties in the process of selecting experts from the very beginning. Parties are asked whether they believe experts are necessary, what areas of expertise are required, how many experts in each field and which international organizations should be asked to provide names of potential experts. After consideration of the parties’ views, the panel will make its own decision on the above questions. If the panel decides to seek the advice of experts, it will begin the selection process by contacting the relevant international organizations11 by asking for help in identifying appropriate experts in the required areas. The panel contacts all of the experts suggested by the international organizations and requests a CV, a statement of conflicts of interest and whether they are available to serve. The panel conveys the experts’ responses to the parties. Parties can then comment on, object to or accept experts. Panels are often faced with a situation where because of the objections of one party or another there is no expert in a particular field that has not been objected to. In such situations, panels may return to the organizations asking for additional names.12 The panel may also ask the parties to present their own names of proposed experts.13 In certain circumstances, panels have selected experts even though one of the parties objected to them. This can lead to questions on appeal as to whether the panel process was respected due process. The Appellate Body has emphasized that the selection of biased experts compromises a panel’s ability to act as an independent adjudicator and thus disrespects the guarantee of fairness and impartiality required from panels.14 Therefore, panels often provide detailed explanations of their reasoning with respect to the selection of experts in a decision issued to the parties during the conduct of the proceedings. Such decisions are either summarized in the final panel report or appended to it.15 In the interest of receiving independent views from each expert, the selected experts are not told who the other experts are until after they have provided their answers. The panel also admonishes the experts not to discuss the proceedings with anyone. C. Consultation with Experts Once the experts are selected, the panel composes its questions to the experts. The process for drafting the questions has evolved over time. In earlier disputes, panels would send their draft questions to the parties for their comments prior to finalization. However, in an effort to increase efficiency and reduce the delays in the timetable caused by expert consultation, in the most recent disputes, the panel has instead asked the parties to submit any proposed questions they may have, but does not allow the parties to comment on the panel’s questions prior to sending.16 The Secretariat compiles the experts’ written answers into a consolidated document and sends them to the parties for comments. The panel forwards the consolidated document and the parties’ comments to the experts. This is the first time the experts know who else was selected and see their answers. A meeting with the panel, experts and parties is held usually over 1–2 days in conjunction with the second substantive meeting between the panel and the parties. Parties are given the opportunity to send in advance any questions they would like the experts to be prepared to answer at the meeting. Experts may opt to make opening statements and then are expected to answer questions from the panel or the parties. The parties’ own experts may be part of their delegation at this meeting assisting them in formulating questions or commenting on the expert’s answers. Experts may also comment on each other’s answers. At the end, the experts may opt to make a closing statement. A transcript of the meeting is prepared for reference in the panel’s report. D. Panel's Utilization of the Experts’ Inputs The manner in which a panel utilizes experts has been examined in the context of cases where panels are using experts to help review a risk assessment (Article 5.1), whether there is insufficient evidence to conduct a risk assessment (Article 5.7), and whether the challenged measure is more trade-restrictive than required (Article 5.6). The Appellate Body has confirmed that in the case of reviewing determinations by national regulatory authorities, the standard of review for the panel is not de novo review, nor a total deference.17 In essence, the panel cannot act as a risk assessor itself, either by gathering its own evidence or on the basis of the evidence submitted by the parties. Therefore, the role of the experts is ‘to help [the panel] understand and evaluate the evidence submitted and the arguments made by the parties, but not to make the case for a complaining party’.18 Moreover, the panel should not impose its own scientific views on the importing Member. Therefore, the role of the panel is not to determine whether the Member's risk assessment is correct or adheres to the panel’s philosophy. Instead, its role is simply to assess whether the risk assessment is supported by coherent reasoning and respectable scientific evidence such that it could be considered objectively justifiable.19 Thus, when considering the conformity of risk assessments with Article 5.1 of the SPS Agreement,20 a panel’s analysis includes four parts: identify the scientific basis for the adoption of the measure. There is no need that the scientific basis embodies the majority scientific opinion, it can take the form of divergent or minority opinions; verify that the scientific basis comes from qualified and respected sources; ie does it have the necessary scientific and methodological rigour to be regarded as a reliable source of scientific information; whether the reasoning based on the scientific information is objective and coherent; and whether the results of the risk assessment are sufficient to justify the SPS measure.21 The experts can assist the panel in these tasks, but the panel may not delegate the ultimate decision to the experts. It must reach its own conclusions. A separate obligation under the SPS Agreement is that SPS measures not be more trade restrictive than required (Article 5.6).22 The Appellate Body has explained that an analysis of compliance with this obligation must take place irrespective of whether there is a risk assessment.23 Unlike the analysis under Article 5.1, a claim under Article 5.6 requires the panel to make its own assessment of whether a hypothetical alternative measures proposed by the complainant achieves a particular level of protection or regulatory objective.24 This means that panels will be called upon to make even more complex factual findings and assessments of the effects of measures. The Appellate Body has explained that in this context, panels are not constrained by the concerns of conducting a de novo review.25 Therefore, panels may find themselves needing to rely more on experts to assist them in evaluating scientific evidence on the risks posed by certain products while at the same time still being bound by the obligation not to make the case for the complaining party.26 Although the detailed procedures and practices for use of outside experts described above have been primarily developed in the context of SPS disputes, it is possible that panels may seek to utilize similar procedures in cases involving provisions of other WTO Agreements. 3. CONSULTATIONS WITH INTERNATIONAL ORGANIZATIONS Panels do not consult international organizations on the facts with respect to the actions of a national regulating authority, but rather with respect to comparing those actions to a particular international standard to make a conformity assessment. In particular, both the TBT and the SPS Agreements provide a rebuttable presumption that compliance with or conformity to an international standard27 means that the challenged measure also complies with the WTO obligations, not only in the specific agreement, but with the General Exception in the GATT 1994 as well.28 The question then arises: How does a panel or the Appellate Body decide that a measure complies with an international standard? Panels find themselves in a dilemma where they often receive what could be considered contradictory instructions. They have been told not to delegate their responsibility to experts or other outside elements,29 yet Article 13 of the DSU allows panels to seek information from any source on technical issues. Furthermore, Article 11 of the SPS Agreement specifically tells panels to consult the relevant international organizations. Panels are also told that their jurisdiction is limited to the provisions of the covered WTO agreements referenced by the parties, but at the same time they cannot determine whether the responding party’s measure is based on or conforms to an international standard without determining what the international standard requires.30 This situation is distinct from those where other treaties are being used as context to interpret existing WTO obligations31 or where other text has been incorporated into the WTO Agreements itself such that it forms treaty text.32 Thus panels are faced with the important question of how to interpret these standards. Should they use the Vienna Convention on the Law of Treaties or some other interpretative tool?33 Should they defer to the interpretation of the standard setting body? Panels have repeatedly turned to the secretariats of other international organizations to seek information and clarification on the operation of their standards.34 When doing so, to ensure the integrity of the proceedings, panels ask the organization to confirm that its staff members are abiding by its own Standards of Conduct and that they are substantially similar to those of the WTO. Furthermore, the WTO does not compensate other international organizations for providing assistance to panels. The WTO has a specific cooperation agreement with the World Organization for Animal Health (OIE),35 but other organizations such as the Codex Alimentarius Commission, Food and Agriculture Organization, World Health Organization, International Plant Protection Convention Secretariat, World Intellectual Property Organization, World Customs Organization and others have cooperated on an ad hoc basis through the comity owed between sister organizations.36 Recently, the Appellate Body clarified somewhat the relationship between panels and the international organizations when it found that a panel could not be faulted for engaging in a consultation with, and accord weight to the views of, the very international organization under whose auspices that international standard is developed when it made its own assessment of the meaning of the international standard. Indeed, the Appellate Body, stated that it would expect a panel to have recourse to the views of the relevant standard-setting body, as referred to in Annex A(3) to the SPS Agreement.37 However, at the same time the Appellate Body has not clarified when a panel might crossover from accord weight to the views of the international organization to impermissibly delegating to it. This will likely need to be settled on a case-by-case basis. Another wrinkle to the problem may be whether the Secretariat of the other organization feels competent to provide an explanation as to what their standards mean or will only be able to provide general guidance on the process by which the standard was developed and how that organization deals with issues arising under the standard. 4. CONCLUSION The WTO dispute settlement practice and rules for presentation of evidence, reliance on experts (internal and external), weighing of evidence and the interpretation of international standards external to the WTO agreements are issues that panels and the Appellate Body will continue to face. However, the issues of evidence and experts have not been raised in the DSU review.38 Instead, they have been discussed extensively in a more informal process started by past Deputy Director-General Alejandro Jara and continued by his successor Karl Brauner. In that context, Members have discussed the ways panels could proceed more efficiently with the selection of experts and the drafting of questions to reduce the impact of using experts on the timetable.39 Panels have implemented certain suggestions from that process in an ad hoc manner with the consent of the parties in particular disputes. Therefore, it is expected that development in this area will continue to be case-by-case, depending on the circumstances of particular disputes. Such an ad hoc approach may be beneficial as it allows the procedures to develop and evolve in response to lived experience rather than remain static. It also allows the panels to review best practices from other contexts and see if they are appropriate for the WTO. As more cases occur and panels and the Appellate Body seek to be consistent with each other, it is likely that a general understanding on how these issues should be dealt with will emerge from the jurisprudence. At the same time, however, the lack of at least a minimum set procedure means that parties still face some uncertainty as to how these issues will be dealt with by individual panels and a potential for disparities in treatment. With respect to the interpretative questions, again it will depend on the context in which a particular international standard or text is being raised—as context, as incorporated into the text of the WTO agreements or as a defence. Panels and the Appellate Body will have to grapple with whether the Vienna Convention is the appropriate interpretative framework in each situation and whether they are the competent body to interpret that particular text. In sum, the WTO process for consulting external experts and international organizations provides many benefits to the system and can be held out as a model for other international tribunals. It ensures that the panelists are adequately assisted in weighing the evidence in an independent and impartial way. It also furthers the goals of cooperation and coherence in the international community. At the same time, there are still many open questions about the process. Panels will continually walk a fine line in balancing their need for information and the principle of due process. Furthermore, both the panels and the Appellate Body will be faced with difficult interpretative questions which reach the heart of the WTO's place in the broader international legal order. Footnotes 1 Appellate Body Report, EC – Bananas, paras 132–38. 2 art 11 of the DSU provides in relevant part that ‘a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements…’. 3 art 12.7 requires that in its report a panel shall ‘set out the findings of fact, the applicability of relevant provisions and the basic rationale behind any findings and recommendations that it makes’. 4 In particular, art 13.1 provides that panels have the ‘right to seek information and technical advice from any individual or body which it deems appropriate’. Moreover, art 13.2 provides that ‘[p]anels may seek information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter.’ art 13.2 specifically notes that with respect to a factual issue concerning a scientific or other technical matter raised by a party, a panel may request an advisory report in writing from an expert review group. app 4 of the DSU sets for the rules for establishment of such a group and its procedures. 5 The Appellate Body has defined a prima facie case as one which, in the absence of effective refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the complaining party presenting the prima facie case. Appellate Body Report, United States - Shirts and Blouses, 14. 6 It should be noted that occasionally, panels also engage outside experts to assist in the translation of the text of the measures of a Member into a WTO official language, if the parties disagree as to the proper translation. See eg Panel Report, China – Publications and Audiovisual Products, paras 2.7–2.9. 7 Parties can rely on experts to analyse another Member's measures or to help them develop their own defence. In the SPS context, this may include the food safety regulators, the Chief Veterinary officer, customs authorities or other similar experts. However, these experts do not ‘testify’ and are not ‘cross-examined’ per se. Rather they serve as part of the Member's delegation to the meeting and assist those making the case for the Member in replying to the Panel's questions or those of the other party. In addition to their own government officials, parties are also free to hire private consultants (be they lawyers or scientific experts) to assist them as part of their delegation 8 Although app 4 of the DSU provides procedures for an Expert Review Group, the Appellate Body has confirmed that panels are not required to do so and may opt to consult individual experts if they choose. See Appellate Report, EC – Hormoneş paras 146–49. No panel has ever established an Expert Review Group. 9 See eg Panel Report, US-Animals, Annex A2; Panel Report, India-Agricultural Products, Annex A1; Panel Report, Russia – Pigs (EU), Annex A3; and Panel Report, Korea-Radionuclides, Annex A2. 10 For eg the average time-frame for SPS panel proceedings is nearly 200 days longer than in proceedings dealing with other agreements. 11 The international organizations consulted for this purpose are not limited to the three listed organizations in Annex A(3) of the SPS Agreement. Other organizations such as the Food and Agriculture Organization, the World Health Organization and the International Agency for Research on Cancer have been approached to provide names of experts. 12 See Panel Report, US – Animals, para 1.17 and Panel Report, Australia – Apples, paras 1.24–1.28. 13 Panel Report, EC – Approval and Marketing of Biotech Products, para 7.27; Panel Report, US/Canada – Continued Suspension, paras 7.80–7.81; and Panel Report, US – Animals, paras 1.12 and 1.17. 14 Appellate Body Report, US/Canada – Continued Suspension, para 436. 15 See eg Panel Report, Korea – Radionuclides, Annex D2. 16 Panel Report, US-Animals, Annex A2; Panel Report, India-Agricultural Products, Annex A1; and Panel Report, Korea-Radionuclides, Annex A2. 17 See eg Appellate Body Report, EC – Hormones, para 117 and Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para 93. 18 Appellate Body Report, Japan – Agricultural Products II, para 129. 19 Appellate Body Report, US/Canada – Continued Suspension, para 590. 20 art 5.1 of the SPS Agreement requires that: Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations. 21 Appellate Body Report, US/Canada – Continued Suspension, para 592. 22 art 5.6 of the SPS Agreement provides: Without prejudice to paragraph 2 of Article 3, when establishing or maintaining sanitary or phytosanitary measures to achieve the appropriate level of sanitary or phytosanitary protection, Members shall ensure that such measures are not more trade-restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility. 23 Appellate Body Report, Australia – Apples, paras 348–56. 24 ibid, para 356. 25 ibid, para 356. 26 See Panel Report, Korea – Radionuclides, paras 7.174–7.179: Panel Report, US – Animals, paras 7.438–7.453. 27 The use of the term international standard in this article is meant to encompass the phrase ‘international standards, guidelines or recommendations’ as used in the SPS Agreement. 28 In a sense, compliance with these agreements—through the specific provisions of the agreements or the presumption from complying with international standards—should guarantee that a panel or the Appellate Body would find no inconsistency with the GATT (even if the measures would on their face be inconsistent with various GATT obligations such as MFN or national treatment) because they would fall under the General Exception in art XX. 29 See Appellate Body Report, India – Quantitative Restrictions, para 149 (finding that a panel may not delegate its judicial function to an international organization that it consults, but must instead critically assess the views of that international organization). However, the Appellate Body has also clarified that ‘[w]hile a panel may act inconsistently with Article 11 of the DSU by improperly delegating its adjudicative function to experts with whom it consults, it is not inconsistent with Article 11 for a panel to accord weight to the views of such experts in connection with its own assessment of the matter before it.’ Appellate Body Report, India – Agricultural Products, para 5.94 (citing Appellate Body Reports, India – Quantitative Restrictions, para 149 and Australia – Apples, para 384). 30 See arts 1.1 and 7.2 of the DSU. 31 See Appellate Body Report, US – Shrimp, paras 127–34 referring to the United Nations Convention on the Law of the Sea, the Convention on Biological Diversity, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora, and other international instruments in its interpretation of the term ‘exhaustible natural resource’ in art XX(g) to include animal species that might become extinct; see also Appellate Body Report, US – AD/CVD, paras 304–22. referring to the ILC Articles on Responsibility of States for Internationally Wrongful Acts as relevant rules of international law applicable between the parties to assist in interpreting the term ‘public body’ in art 1.1(a)(1) under art 31(3)(c) of the Vienna Convention on the Law of Treaties. 32 The tariff commitments of Members in their goods and services schedules are considered treaty text and thus interpreted using the customary rules of interpretation as embodied in arts 31–33 of the Vienna Convention on the Law of Treaties. The Harmonized System of Tariff Classification, which is used as a basis for the preparation of Members' goods schedules, has been considered a relevant context for the interpretation of the Members' goods schedules and thus compliance with their obligations under GATT 1994 arts I and II. See Appellate Body Report, EC – Chicken Cuts, paras 196 and 199, and Panel Report, EC – Chicken Cuts, para 7.187. See also Panel Report, EC – IT Products, para 7.439, and Appellate Body Report, EC – Computer Equipment, para 89. 33 India raised this issue on appeal in the case India – Agricultural Products arguing that the panel should have interpreted the OIE Terrestrial Animal Health Code using customary rules of interpretation of public international law. The Appellate Body found that India had not clearly articulated its arguments on how the panel's alleged error would have had a material effect on the outcome of the dispute. The Appellate Body stated that it did not find any legal error in the panel's interpretation. However, the Appellate Body did not go so far as to address whether any particular interpretative approach was required. See Appellate Body Report, India – Agricultural Products, paras 5.95–5.99. 34 As noted above, panels often also ask international organizations to assist them in identifying potential individual experts to be consulted. 35 WT/L/272, see <https://www.wto.org/english/thewto_e/coher_e/wto_oie_e.htm> accessed 9 April 2018. 36 Recently in the Panel Report in Korea – Radionuclides, the International Atomic Energy Agency and the International Commission on Radiological Protection were consulted for the first time, alongside Codex. Additionally, the United Nations Scientific Commission on the Effects of Atomic Radiation provided names of potential experts to the panel. See Panel Report, Korea – Radionuclides, paras 1.21 and 1.34. 37 See Appellate Body Report, India – Agricultural Products, para 5.94 (referring to the panel's consultations with the OIE). 38 Information on the negotiations to improve the Dispute Settlement Understanding can be found at <https://www.wto.org/english/tratop_e/dispu_e/dispu_negs_e.htm>. 39 On the informal consultation process on ways to improve practical elements of the dispute settlement process, see <https://www.wto.org/english/tratop_e/dispu_e/informal_consultations_e.htm>. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Hodgson, Mélida;Stewart, Melissa

2018 Journal of International Dispute Settlement

doi: 10.1093/jnlids/idy006

Abstract This article examines issues related to the role of experts—legal, technical and valuation—in investment arbitration. Specifically, the article examines the lack of standards in existing rules to assess the credibility of expert opinions—particularly technical and quantum opinions. The article examines existing standards and current practices. It then proposes that standards be adopted to determine the admissibility, or qualification, of credible expert testimony. 1. INTRODUCTION The legitimacy crisis that investment arbitration is experiencing is generally focused on the perception that it is a system that benefits private actors—investors—at the expense of state sovereignty, particularly the ability to regulate in the interest of public welfare. Much of the controversy has been focused on the actual or perceived lack of transparency in the proceedings, and the role (sometimes conflicting), of arbitrators and counsel involved in the proceedings. Almost unnoticed has been the role that experts play in contributing to the crisis that is until the challenges by Pakistan and Spain to the appointment of Stanimir Alexandrov as arbitrator in a pair of unrelated arbitrations.1 Mr Alexandrov was challenged in the Pakistani case because the Brattle Group, quantum experts appearing before him, presented the same allegedly rare valuation methodology in a case in which Mr Alexandrov serves as counsel.2 Pakistan’s assertion was that Mr Alexandrov had a personal interest in promoting the use of that methodology due to his work as counsel in that case in which the Brattle Group had presented the same valuation methodology. Spain’s concerns go further to challenge Mr Alexandrov’s ability to be impartial when he, as counsel, has retained the Brattle Group on multiple occasions, and failed to disclose that in an earlier arbitration in which he sat as Claimant’s appointee, and that resulted in an award against the State.3 Mr Alexandrov resigned from the SolEs Badajoz vSpain tribunal after the two co-arbitrators, Joan Donoghue and Anna Joubin-Bret, indicated that they were split on the challenge.4 As multibillion dollar awards face increased scrutiny, it is natural to examine the extent to which tribunals, in making their damages determinations, are relying upon expert testimony that is credible, particularly quantum opinions. Party autonomy, a sine qua non of arbitration, means that there is no set standard under which experts are engaged, vetted or present their evidence, and the procedural safeguards that evolved in the common law or civil law traditions for court cases may not apply under applicable arbitration rules. What has emerged is a system that lacks a standard practice to challenge the credentials of or to review the credibility of a chosen expert and his or her opinion. This article explores the different types of experts used in investment arbitration and the challenges that arise in each case with respect to the experts’ independence, impartiality, neutrality, credibility and the admissibility of their testimony. It examines the specific issues related to party-appointed and tribunal-appointed experts. Next, we review the procedures and protocols that may govern the conduct of experts in the investment arbitration context, and particularly the difficulty in successfully challenging an expert. Finally, the article reviews and proposes potential standards for tribunals serving as gatekeepers to apply to expert participation in investment arbitration. 2. EXPERTS IN INVESTMENT ARBITRATION A. Types of Experts Experts appearing in investment arbitration typically fall under three general categories: legal experts, technical and scientific experts and quantum experts. Each category serves a different purpose in a case, and may pose their own unique challenges. Legal experts present a particular challenge to the arbitral tribunal as their expert testimony can be closely intertwined with advocacy. Legal experts typically provide opinions on international law, international investment law or the domestic law of the investor or the host State.5 It is important to distinguish between international or investment law experts and domestic law experts. Arbitrators presiding over complex investment arbitrations should be the foremost experts in international and investment law—that is why they were selected. One can, therefore, question the necessity of having a ‘legal expert’ explain investment treaty concepts to such tribunals, even with respect to questions of first instance (for example, the denunciation of the International Centre for Settlement of Investment Disputes (ICSID) Convention). Many suggest that an expert in investment law or international law would better serve as co-counsel.6 Legal experts are more often used to present opinions on the application of domestic law. Some have pointed to the special circumstance of investment arbitration, in respect of the need to understand procedural and substantive areas of domestic law in jurisdictions unfamiliar to the arbitrators, as a way of accounting for the practice of resorting to legal experts.7 On the other hand, judges often apply foreign law and are presumed to be competent to apply it without resorting to the appointment of experts.8 In the investment arbitration context, there may be a danger of over-reliance by the tribunal on the opinion of legal experts. Since appointed by the parties, the legal expert’s ‘neutral view’ of domestic legislation may be coloured by the known desired outcome by the party paying the bill, or by personal interests or position. This then has a rippling effect—for example, if the basis for finding a treaty violation is a conclusion that a host State has not acted consistent with its domestic law. Moreover, when there are a significant number of cases against a state arising out of a set number of challenged laws (such as occurred when Argentina undertook measures to control its financial crisis, or natural resource policy changes in Venezuela, or solar energy policy in Spain and other European countries) this can lead to the rise of ‘professional experts’ with specific biases. The second category, technical and scientific experts (hereinafter ‘technical experts’) is the least problematic with respect to their value to the tribunal and the potential for a biased opinion, given that unlike a legal expert, their testimony generally has to rely on some objective facts, defined best practices or industry standards. Technical experts illuminate a substantive area relevant to the case that is normally outside of the competence of counsel or the tribunal, such as complex environmental issues, construction, oil and gas, mining, intellectual property or other areas of scientific inquiry. They are less likely to have extensive experience testifying before investment tribunals, but rather have focused their careers on researching and writing about their area of expertise.9 The most prominently featured category of expert in investment arbitration is the quantum, or valuation expert. These experts present the greatest challenge in increasingly high-stakes cases because they may present widely divergent estimates of damages that tribunals struggle to reconcile, but are needed in order to reach a final determination of a damages award when liability has been found.10 Quantum experts are increasingly employed in multiple cases by the same counsel, leading to the perception of the expert as a ‘hired gun’. Their valuations and methodologies can be remarkably similar, or, they can differ between cases depending on the party (investor or state) that retains them, leading to questions of the credibility of their opinions. Confronted with starkly different calculations based on disparate methodologies, tribunals may create their own valuation that might be viewed as ‘splitting the baby’.11 Tribunals have also been criticized for damages decisions that lack sufficient explanation of how valuation was determined or for damages awards that apply inconsistent methodologies in an effort to synthesize divergent expert valuations.12 Such weaknesses in reasoning can lead to challenges to awards, and in some instances, annulment of damages awards.13 The issue of disparate methodologies employed by quantum experts and the incorporation of their opinions into awards can, and should, have far-ranging consequences. Large damages awards have significant impact on states, and if they result from flawed methodologies, or a tribunal’s poor comprehension of the economic methodologies employed, they are even more bitter pills to swallow. As one author described it, ‘[t]he negative consequences of inaccurate and opaque valuations can extend to the entire arbitral system, beginning with lost confidence in awards and unreliable expectations about future cases.’14 Given their pivotal role in investment arbitration,15 the challenge of the credibility of quantum experts tends to be the focus of the concerns expressed about experts. B. Party-Appointed and Tribunal-Appointed Experts Investment arbitrations may proceed with party-appointed experts, tribunal-appointed experts, or a combination of both. Even as arbitration is marked by its inherent flexibility, the origins of party-appointed and tribunal-appointed experts are in legal traditions with far more rigid procedural rules that operate within a specific philosophical context. The use of tribunal-appointed experts arises from the civil-law tradition, which is marked by its search for the truth through an inquisitorial system. The role of the tribunal-appointed expert, which is used more often than the party-appointed expert more often found in the common-law tradition,16 is to serve the court. They are examined by the judge without cross-examination by the parties.17 Civil law countries provide mechanisms for challenging experts, but disqualification is rare. For example, the German Code of Civil Procedure give parties the right to object to court-appointed experts in a similar way that they may object to the appointment of a judge, namely for lack of independence.18 Even so, it is unlikely that a court will sustain a challenge to their own appointed expert.19 As party-appointed experts are used more sparingly in civil law countries, the practices and procedures for challenging experts and sustaining those challenges are not particularly robust, and arguably do not need to be, since the experts are generally judge appointed from pre-qualified lists.20 In contrast, party-appointed experts arise out of the adversarial common-law tradition. Each side engages their own expert to testify on their behalf and the tribunal weighs the information presented. Parties are permitted to challenge experts and cross-examine their testimony. The procedures for challenging and disqualifying experts, seen as necessary to the adversarial system, are fairly robust in the common law tradition. For example, in the UK, experts that are found to violate their duties may be subject to sanctions or disqualification.21 In general, under the Civil Procedure Rules, Courts in the UK have broad discretion to restrict or exclude expert evidence.22 Similarly and as explained below the USA has developed extensive procedures for the qualification of experts and allows the judge to act as gatekeeper to exclude questionable expert testimony. The evolution of expert testimony in international arbitration, generally commercial arbitration, reflects an amalgamation of the two legal traditions. As noted by one author, ‘the converging practice is to use both approaches’.23 However, neither approach is used with the traditional procedural safeguards developed in the legal tradition from which it emerged. The lack of safeguards is particularly problematic when extended to the investment arbitration context. 3. PROCEDURES AND PROTOCOLS GOVERNING THE USE OF EXPERTS IN INVESTMENT ARBITRATION The inherent flexibility of arbitration means that there are no set procedures for the use of experts by parties, the appointment of experts by the tribunal, challenges to experts or standards for the disqualification of experts. However, there are various protocols and guidelines that parties may apply in a given proceeding. As explained below, the rules or guidelines pertaining to experts that do apply are marked by a focus on independence, impartiality and neutrality of the expert. There is a paucity of guidelines pertaining to the qualifications of the expert or outlining procedures for challenging an expert on the basis of a perceived lack of neutrality, lack of appropriate qualifications or the lack of credibility of the expert’s work. In the absence of formal rules of evidence in investment arbitration, the lack of a standard code of conduct, and even considering particular trends in protocols or guidelines, the procedures governing experts’ participation varies between arbitrations. Expert participation in an ICSID Convention arbitration proceeding is governed by the Rules of Procedure for Arbitration Proceedings (Arbitration Rules) Articles 35 and 36. Arbitration Rule 35 on the Examination of Witnesses and Experts provides that an expert may be examined by the parties as well as the tribunal.24 It requires each expert witness to make the following declaration: I solemnly declare upon my honour and conscience that my statement will be in accordance with my sincere belief.25 This declaration is fairly narrow and in essence is an attempt to assert the expert’s independence and neutrality, without an explicit statement. An expert’s ‘sincere belief’ may certainly be independent of his economic relationship with a party. And his testimony may be impartial, in the sense of not being subjectively biased in favour of his party, and this may indeed be encompassed by the statement. But nothing in the rule addresses the credibility of the expert or the qualification and subsequent admissibility of his statements. That is, there is no testing of the quality of the expert’s testimony, which should be the fundamental basis of the credibility of his testimony. For instance, quantum experts with significant experience can make incorrect assumptions or arithmetical mistakes with material results. That should make the expert’s testimony not credible and consequently, not admissible. But in investment arbitration, there is no process for determining this—the testimony is accepted and the opposing party may try to discredit the expert through cross-examination. But this procedure naturally has a partisan tinge. It would arguably be better for the tribunal to make a separate objective determination of the quality, and therefore, credibility of that testimony before it is considered. The special rules outlined in Rule 36 similarly lack guidance on how to address perceived or actual deficiencies of an expert, simply providing that a tribunal may ‘admit evidence given by a witness or expert in a written deposition’, thus allowing an expert witness statement to be admitted without cross-examination (although in practice this is not common). Article 29 of the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules governs experts appointed by the tribunal, but says nothing specific about the qualification of party-appointed experts.26 Rather, it allows any party to ‘inform the arbitral tribunal whether they have any objections as to the [tribunal appointed] expert’s qualifications, impartiality or independence’,27 prior to the appointment. Parties are also permitted to express their opinion on the written report of the expert, to cross-examine the tribunal’s expert, and to present their own expert.28 Again, this is a procedural provision. The International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration include guidelines governing Party-Appointed Experts (Article 5) and governing Tribunal-Appointed Experts (Article 6). While these rules are not directly applicable unless adopted by the parties, both articles are more detailed than the previously described rules, but neither provides for reviewing the qualifications of experts or challenging experts. Rather, the focus is on the rights of parties to examine information drawn upon in the drafting of a report and permits any party the opportunity to respond to a tribunal-appointed expert.29 As is the case with the IBA Rules, the Chartered Institute of Arbitrators (CIArb)’s Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration (CIArb Protocol) is not applicable in the investment arbitration context unless specifically adopted by the parties to a dispute. In Article 4 it does address experts’ independence, requiring an impartial, objective, unbiased opinion ‘uninfluenced by the pressures of the dispute resolution process or by any Party’.30 The CIArb Protocol further attempts to ensure an expert’s credibility by specifically noting that the expert’s duty is to assist the tribunal.31 But as with other rules, it does not provide a mechanism for challenging an expert or their opinion.32 In addition to the rules and guidelines that may be applicable to the use of experts in arbitration generally,33 there are various practices that have emerged to attempt to address potential concerns regarding expert testimony. For example, some tribunals hold pre-hearing meetings for experts to attempt to address areas of disagreement and to record the issues in which they reach an agreement.34 Other tribunals have examined experts simultaneously during hearings: so-called ‘hot-tubbing’ or ‘witness conferencing’. In ‘hot-tubbing’ the adversarial cross-examination is limited, sometimes requiring approval of the tribunal for any questions to be posed to the experts. The Sachs Protocol is concerned principally with addressing concerns of the independence and impartiality of tribunal-appointed experts.35 Accordingly, it calls for each party to exchange a list of expert candidates and comments on the other’s candidates. The tribunal then chooses two experts (one from each list) to form the expert team. The tribunal and the parties then meet with the expert team to establish a protocol for the team’s mission, which would include a joint preliminary report that would be circulated for comment to the tribunal and the parties. The expert team would be questioned at the hearing, including by parties’ ‘expert consultants’ (experts hired directly by the parties to address areas of disagreement between the two members of the expert team). Dr Sachs describes the protocol as providing ‘checks and balances’ for the technical findings of the experts.36 It is potentially a way of qualifying experts and ensuring their credibility. A. Challenges to Experts Rarely Lead to Disqualification To the extent that they are attempted in investment arbitration, challenges to experts appear to rarely succeed, and there is little information on them generally. In Occidental vEcuador, Ecuador attempted to challenge Occidental’s legal expert Hernán Pérez Loose on the basis that he was also co-counsel in a separate treaty claim against Ecuador.37 The tribunal declined to disqualify him, finding that his work on a ‘family related’ dispute ‘in no way impacted’ his previous work in the case.38 In Flughafen Zürich AG and Gestión e Ingenería IDC SA vBolivarian Republic of Venezuela, the claimant sought to disqualify an expert appointed by Venezuela and to exclude his expert report,39 arguing that the expert had gained confidential information during consultations with the claimant and challenging his impartiality. The Tribunal ruled that it had jurisdiction to decide the challenge under Article 34(1) of the ICSID Arbitration Rules but declined to disqualify the expert, on the basis that when it provided the information to the expert, the claimant had failed to mark any information confidential or make reservations as to the confidentiality of the information.40 4. THE TRIBUNAL AS GATEKEEPER As we have discussed, issues regarding the qualification and credibility of experts in investment arbitration have largely operated under the radar of the current crisis of legitimacy. This is due to many factors, not least the arbitration community’s focus on issues related with party appointed as opposed to tribunal-appointed experts. But as the entire system is reviewed, and with the increasing frequency of multimillion, and multibillion dollar awards, the participation, and qualification of experts should not be ignored. The credibility of valuation opinions, and their influence on damages awards is also central to the legitimacy of the investment arbitration system—as annulments resulting from poor use or understanding of valuation opinions demonstrate. The current practice of essentially taking the credibility, and consequently admissibility, of expert opinions for granted will need to be subject to more strict standards, along with other elements of investment arbitration. The Sachs Protocol offers an option for addressing the credibility of experts, but it is heavily tilted to justifying tribunal-appointed experts, and does not address the qualification of expert opinions—that is, the process of determining whether an opinion is credible and should be admitted. The tribunal needs to assert its role as the judge of the admissibility of evidence to serve as a gatekeeper. A. The Daubert Standards US court practice provides a useful model for an investment tribunal as gatekeeper. The framework for the qualification of an expert under US law is established in the Federal Rules of Evidence (Rule 702) and in case law, most notably the guidelines established in the Supreme Court case, Daubert vMerrell Dow Pharmaceuticals, Inc to explain the application of Rule 702.41 Under Rule 702 of the Federal Rules of Evidence, an expert must be qualified ‘by knowledge, skill, experience, training or education’. An expert so qualified may testify if: the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; the testimony is based on sufficient facts or data; the testimony is the product of reliable principles and methods; and the expert has reliably applied the principles and methods to the facts of the case.42 Daubert affirmed the trial court’s gatekeeping function to exclude expert testimony deemed unreliable in accordance with Rule 702.43 Arguably, items (c) and (d) of Rule 702 are often at issue in technical valuation opinions presented in investment arbitrations. In contrast to rules and protocols that may apply to experts in the context of international arbitration, and particularly investment arbitration, Federal Rule 702, as interpreted by Daubert and its progeny, focus on the expert’s qualifications and methodology—whether his testimony is relevant and reliable. In situations where questions arise regarding an expert’s qualifications or the quality of his proposed report, parties are permitted to challenge the qualification and the report, and the judge has clear guidelines under which to consider the challenge. Those guidelines provide that a judge should determine: (i) whether or not a theory or technique can be or has been tested; (ii) whether the theory or technique has been subjected to peer review or publication; (iii) what the known or potential rate of error is of the theory or technique; and (iv) whether the theory or technique is generally accepted in the [expert’s] community.44 In making this assessment, the judge naturally tests the application of the technique or theory. Some version of this practice could address the credibility gap that is becoming increasingly common with respect to expert testimony in investment arbitration. The Kipperman vOnex Corp, a Georgia federal case is illustrative of how an expert employing the oft-used discounted cash flow methodology can err.45 In that case, the district court judge recognized the discounted cash flow (DCF) method as ‘the preeminent valuation methodology’ used by experts to value a company.46 However, upon reviewing the expert’s report, the court concluded that the expert did not ‘reliably apply the principles and methods to the facts of the case’, as required by Rule 702(d), for a company in bankruptcy in determining which variables to apply in the DCF analysis.47 The expert’s testimony was, therefore, unreliable under Rule 702 and the standards established in Daubert and thus inadmissible. The judge precluded the expert from offering an opinion based on the analysis or with respect to the company’s solvency.48 The Daubert guidelines could be adapted as standards for use in investment arbitration to ensure that expert opinions are qualified and credible—that is the application of methodologies and theories are reliable—correctly applied when producing opinions advocating for multimillion dollar damages. This qualification could be done early in the proceedings—negotiated with other procedural steps in the first procedural order—and possibly occurring before a counter memorial is filed. A Daubert qualification process could be used in combination with the Sachs Protocol. This is within the tribunal’s power to determine what evidence is admissible in a proceeding. 5. CONCLUSION Issues surrounding the participation of experts are directly relevant to the legitimacy of the investment arbitration system. Existing rules do not take into account issues of credibility (as opposed to independence, impartiality and neutrality). Application of the Daubert standards, employed alone or in conjunction with other practices, such as the Sachs Protocol, is one way to qualify expert reports. Footnotes 1 Tethyan Copper Company v Islamic Republic of Pakistan (ICSID Case No ARB/12/1); SolEs Badojoz GmbH vKingdom of Spain (ICSID Case No ARB/15/38). The challenge was filed on 7 July 2017 and rejected on 5 September 2017. Apparently unhappy with the Tethyan tribunal’s rejection of its disqualification proposal, Pakistan challenged the entire tribunal (Klaus Sachs, President, and Leonard Hoffman, Claimant’s designee) on 25 November 2017. See <https://icsid.worldbank.org> case details, accessed 2 December 2017. 2 See eg Tom Jones ‘Alexandrov survives Pakistan’s challenge over “rare” damages model’ (2017) Global Arbitration Review <http://globalarbitrationreview.com/article/1147206/alexandrov-survives-pakistans-challenge-over-rare-damages-model> accessed 16 October 2017. <http://globalarbitrationreview.com/article/1149347/alexandrov-and-joubin-bret-resign-from-ect-case-against-spain> accessed 1 November 2017. Setting aside the allegations that Mr Alexandrov failed to fully and properly disclose these ties, an issue posed by the challenges is the independence and credibility of experts who work multiple times with the same counsel. 3 ibid. (referring to Eiser Infrastructure Limited and Energia Solar luxembourg Sar. vKingdom of Spain, ICSID Case No ARB/13/36). 4 Alison Ross, ‘Alexandrov and Joubin-Bret Resign from ECT case against Spain’ (2017) Global Arbitration Review. 5 Nigel Blackaby and Alex Wilbraham, ‘Practical Issues Relating to the Use of Expert Evidence in Investment Treaty Arbitration’ (2016) 31 ICSID Review 655. 6 ibid. 7 Dana H Freyer, ‘Assessing Expert Evidence’, in Lawrence W Newman and Richard D Hill (eds), The Leading Arbitrators’ Guide to International Arbitration (2nd edn, Juris Publishing 2008) 430, 441. Tribunals will nonetheless be loathe to exclude legal experts for fear that it be seen as circumscribing a party’s right to present its case. But see Matthew J Wilson, ‘Demystifying the Determination of Foreign Law in U.S. Courts: Opening the Door to A Greater Global Understanding,’ (2014) Akron Law Publications 227 (US judges applying foreign law without resort to experts). 8 Wilson, ibid. 9 Ali Khan ‘GAR Live Lookback: Repeat Experts, Performance Bonds and Disclosure in Construction Disputes’ (2016) Global Arbitration Review <http://globalarbitrationreview.com/article/1068957/gar-live-lookback-repeat-experts-performance-bonds-and-disclosure-in-construction-disputes> accessed 31 October 2017 (noting that concerns about repeat experts apply principally to quantum experts). 10 Joshua B Simmons, ‘Valuation in Investor-State Arbitration: Toward a More Exact Science’ (2012) 30 Berkeley Journal of International Law 196. 11 ibid. 12 ibid, 208. 13 See eg Venezuela Holdings, BVand othersv Bolivarian Republic of Venezuela, ICSID Case No ARB/07/27, Decision on Annulment (2017); Occidental Petroleum Corporationand othersv Republic of Ecuador, ICSID Case No ARB/06/11, Decision on Annulment (2015); Mar Int’l Nominees Establishment v Guinea, ICSID Case No ARB/84/4, Decision on Annulment, (1989) (MINE). 14 Simmons (n 10) 210. 15 Generally, if the investor prevails, partially or fully on its claims, there will be damages. An UNCTAD study reviewing cases concluded in 2014 found that only 2% of cases concluded that year found a breach but did not award damages to the investor (in that study, the state prevailed in 37% of cases). UNCTAD, ‘Recent Trends in IIAS and ISDS’ (2015) 8 <http://unctad.org/en/PublicationsLibrary/webdiaepcb2015d1_en.pdf> accessed 31 October 2017. Similar statistics were found for cases concluded in 2015, see UNCTAD, ‘Investor-State Dispute Settlement: Review of Developments in 2015’ (2015) <http://investmentpolicyhub.unctad.org/Upload/ISDS%20Issues%20Note%202016.pdf> accessed 31 October 2017. 16 Sebastiano Nessi, ‘Expert Witness: Role and Independence,’ [2016] New Developments in International Arbitration 73, 74. 17 Giovanni De Berti, ‘Experts and Expert Witnesses in International Arbitration: Adviser, Advocate or Adjudicator?’ Austrian Yearbook of International Arbitration 53, 55 (Klausegger, Klein, Kremslehner, Petesche, Pitkowitz, Power, Welser & Zeiler eds, 2011). 18 Sven Timmerbeil, ‘The Role of Expert Witnesses in German and U.S. Civil Litigation’, (2003) 9 Annual Survey of International and Comparative Law 163, 174. See also Nessi (n 16) 74. 19 Nessi, ibid 96. 20 See eg Déirdre Dwyer, The Judicial Assessment of Expert Evidence (CUP 2008) 195. 21 Nessi (n 16) 76. 22 See eg CPR 35. This is in contrast to the English Arbitration Act of 1996 which allows for tribunal-appointed experts, but does not explicitly vest the arbitral tribunal with the power to restrict expert evidence. 23 Siegfried H Elsing and John M Townsend, ‘Bridging the Common Law Civil Law Divide in Arbitration’ (2002) 18 Arbitration International 1. 24 The ICSID Additional Facility Rules are similar to the Arbitration Rules with respect to the examination of witnesses with a few key differences. Under art 42 on the Examination of Witnesses and Experts, there is no oath, so no requirement that experts make a declaration that their statement ‘will be in accordance with [their] sincere belief’. In practice, this oath is nonetheless often administered. Further, art 43, ‘Witnesses and Experts: Special Rules’, allows the tribunal to ‘appoint one or more experts, define their terms of reference, examine their reports and hear from them in person’. 25 ICSID Rules, r 35. 26 UNCITRAL Arbitration Rules, art 29. art 27(4) dictates that the tribunal determines the admissibility, relevance, materiality and weight of evidence, but says nothing about standards or procedures for making that determination. Similarly, the ICC Arbitration Rules focus on tribunal-appointed experts and giving the parties the right to question such experts. See ICC Arbitration Rules, arts 25(3) and 25(4). 27 UNCITRAL Arbitration Rules, art 29. 28 ibid. See also art 17(3). 29 IBA Rules on the Taking of Evidence in International Arbitration, arts 5 and 6. 30 Chartered Institute of Arbitrators (CIArb) Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration, art 4(1). 31 ibid. 32 These rules are focused on baseline issues such as independence (generally considered financial independence), impartiality (a subjective determination) and the related concept of neutrality. But admissibility (the qualification and credibility of experts) is essentially taken for granted. 33 The author notes that there may be professional or association codes of conduct or ethical rules governing experts’ participation in investment arbitration. See Mark Kantor, ‘A Code of Conduct for Party-Appointed Experts in International Arbitration – Can One be Found? (2010) 26(3) Arbitration International 326, 341–63. 34 IBA Rules, art 5(3); See also, Klaus Sachs and Nils Schmidt-Ahrendts, ‘Protocol on Expert Teaming: A New Approach to Expert Evidence’ 9–10 (Sachs Protocol). 35 Ibid 10–13. 36 ibid 12. 37 Occidental Petroleum Corporation Occidental Exploration and Production Company v Republic of Ecuador ICSID Case No ARB/06/11, Award, (2012) [103]. Interestingly, the quantum experts were required to produce a joint expert report using the discounted cash flow method. The tribunal established a procedure for the parties to comment on the joint report. See eg ibid [80]–[83]. 38 Occidental Petroleum ibid fn 22. 39 Flughafen Zürich AG and Gestión e Ingenería IDC SA vBolivarian Republic of Venezuela, ICSID Case No ARB/10/19, Decisión sobre la inhabilitación del Sr. Ricover como expert en este procedimiento, sobre la exclusion del Informe Ricover-Winograd y sobre la Petición Documental [34]. 40 ibid [36]. 41 Daubert v Merrell Dow Pharmaceuticals, Inc, 509 U 579 (1993). See also Kantor (n 33) 325 (noting that under the standard the court should find it ‘more likely than not that the expert's methods are reliable and reliably applied to the facts at hand’). 42 US Federal Rules of Evidence, r 702. 43 Daubert (n 41). Daubert has also been used to qualify non-scientific expert opinions, see Kumho Tire Co, LTD, and others, vCarmichaeland others, (1999) 526 US 137, 149. 44 Daubert, ibid 592–94. 45 Kipperman vOnex Corp, 411 BR 805 (ND Ga 2009). 46 ibid 846. 47 ibid. 48 ibid 849. © The Author(s) 2018. Published by Oxford University Press. 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