Different Forms of Expert Involvement in WTO Dispute Settlement Proceedings

Different Forms of Expert Involvement in WTO Dispute Settlement Proceedings 1. INTRODUCTION Disputes before the World Trade Organization (WTO) are often technically or scientifically complex. It is therefore surprising that so few WTO disputes have involved the participation of panel-appointed experts to assist the panelists to understand the issues at stake, or have involved active engagement with party-appointed experts. As of December 2017, there were 227 adopted WTO panel reports, of which only 16 have involved panel-appointed experts.1 The experts that may be used in WTO dispute settlement proceedings have generally been panel-appointed experts on scientific and technical matters. Panels have also consulted with other international organizations, either as mandated by the WTO Agreements or on their own initiative. To date, the role of experts in WTO dispute settlement proceedings has largely been limited to disputes involving the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), which sets down rules for measures governing human, animal and plant life and health. However, the scope for useful involvement of panel-appointed experts in disputes involving other technical agreements, such as the Agreement on Technical Barriers to Trade (TBT Agreement), is broad and has been underutilized to date. Disputing parties are increasingly using experts to provide evidentiary support for their legal arguments, although the Working Procedures adopted by WTO panels for disputes do not usually provide for any active engagement with such experts. This article examines the use of experts in WTO dispute settlement proceedings, focusing on a number of key issues: the broad and overarching authority of panels to ‘seek information’ on any topic, which provides a treaty mandate to consult experts; the specific authority of panels to consult experts on scientific and technical issues; the procedures applicable to the appointment of experts by panels, including due process issues that can arise; the recourse by panels to other international organizations; the use of party-appointed experts; and the limitations on the use of experts. This article also addresses what should be the role of experts such as economists within the WTO Secretariat, who sometimes play a key (but not always transparent) role in advising panels on economic evidence submitted by the parties. Before examining the role of experts in the WTO dispute settlement process, it is useful to recall that WTO panels comprise individuals who often do not have specific expertise on scientific or even economic issues. While the background of panel members varies, it is not unusual to have panels composed of trade diplomats, academics and/or lawyers. These individuals are well-qualified in their own fields, but do not often have specialized technical expertise on matters governed by some of the WTO Agreements. This explains the need to have consultation with appropriate experts. 2. PANEL-APPOINTED EXPERTS UNDER ARTICLE 13.2 OF THE DSU Article 13.1 of the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) gives panels ‘the right to seek information and technical advice from any individual or body which it deems appropriate’. Article 13.2 states that panels may seek information ‘from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter’ before it. The provision adds that ‘[w]ith respect to a factual issue concerning a scientific or other technical matter raised by a party to a dispute, a panel may request an advisory report in writing from an expert review group’. The reason for a panel to seek information and/or technical advice is to facilitate its understanding of the issues in the dispute, to facilitate its ‘objective assessment of the matter before it, including an objective assessment of the facts of the case’, in accordance with Article 11 of the DSU. As the Appellate Body has noted, panels have ‘significant investigative authority’ under Article 13 of the DSU, and ‘broad discretion in exercising this authority’.2 In considering whether to consult experts or an international organization, the panel must determine whether there are areas where it needs assistance in understanding the information placed before it. The Appellate Body has noted that ‘experts consulted by a panel can have a decisive role in a case’.3 The broad authority provided in DSU Article 13 could allow panels to request expert advice on a wide range of matters, including economic evidence. Parties are increasingly submitting expert reports by economists to support their legal arguments.4 However, to date, no WTO panel has appointed an outside economic expert to assist it in its assessment of such expert reports. As Joost Pauwelyn points out, this is in contrast to the practice of courts in the United States to appoint economists, especially in antitrust cases.5 US courts have also appointed neutral economic experts on damages in patent infringement litigation.6 In WTO cases involving complex economic matters, it may be useful for panels to appoint economic experts under DSU Article 13, including to assist them in understanding the expert reports submitted by the parties. 3. PANEL-APPOINTED EXPERTS IN DISPUTES UNDER THE SPS AND TBT AGREEMENTS In addition to the general rule in Article 13 of the DSU, Article 11.2 of the SPS Agreement encourages, but does not require, panels to seek the opinion of experts and relevant international organizations in a dispute involving scientific or technical matters: In a dispute under this Agreement involving scientific or technical issues, a panel should seek advice from experts chosen by the panel in consultation with the parties to the dispute. To this end, the panel may, when it deems appropriate, establish an advisory technical experts group, or consult the relevant international organizations, at the request of either party to the dispute or on its own initiative. In 14 out of 15 disputes involving the SPS Agreement to date, panels have sought advice and technical information from scientific experts and/or international organizations.7 In cases where a panel uses an expert to review a risk assessment or to determine whether there was insufficient scientific evidence to conduct one, it must not use the expert to conduct a de novo review, or to conduct its own risk assessment based on the evidence submitted by the parties. The Appellate Body has stressed that ‘the review power of a panel is not to determine whether the risk assessment undertaken by a WTO Member is correct, but rather to determine whether that risk assessment is supported by coherent reasoning and respectable scientific evidence and is, in this sense, objectively justifiable’.8 The primary reason to choose an expert is for his/her expertise in the issues in the dispute. However, a person who has developed expertise in a particular topic may already have been consulted by governments or other stakeholders (or by one of the parties to the dispute), and so it can be difficult to choose experts that do not have any previous involvement in the case. When selecting experts, therefore, panels must be careful not to select persons who could be perceived as lacking the requisite independence and impartiality. This issue came up in US/Canada-Continued Suspension. In that case, the EC objected to the panel’s inclusion of experts who had participated in a risk assessment that was at issue in the dispute. The Appellate Body agreed, saying that to do so ‘infringed the European Communities' due process rights …’.9 The Appellate Body stated that a panel must assess the disclosed information to evaluate ‘whether there is an objective basis to conclude that an expert's independence or impartiality is likely to be affected or there are justifiable doubts about that expert's independence or impartiality’.10 In those cases, the panel should not appoint that expert. Similarly, Article 14.2 of the TBT Agreement provides that a ‘panel may establish a technical expert group to assist in questions of a technical nature’. There has been only one TBT case in which the panel consulted experts.11 In EC—Asbestos, the panel noted the ‘extreme factual and scientific complexity of this case’, and consulted individual scientific experts under DSU Article 13 on the carcinogenicity of chrysotile fibres, among other issues.12 Interestingly, the panel did not appoint an expert review group pursuant to Article 14.2 of the TBT Agreement. A. Appointment of Expert Review Group or Individual Experts Appendix 4 of the DSU and Annex 2 of the TBT Agreement provide rules and procedures for expert groups.13 Appendix 4 of the DSU states that ‘[p]articipation in expert review groups shall be restricted to persons of professional standing and experience in the field in question’, and Annex 2 of the TBT Agreement includes a nearly-identical provision, although it refers to ‘technical expert groups’. The DSU adds that the ‘expert review group shall submit a draft report to the parties to the dispute with a view to obtaining their comments … in the final report’, which again has been included in almost identical language in the TBT Agreement. The drafters of the provisions for an expert group may have wanted the security that comes from obtaining a consensus view from the experts. In practice, however, no panel has ever appointed an expert review group. This may be because the composition of an expert review group would likely take a lot of time,14 given the likely disagreement between the disputing parties on which experts should be appointed by the panel’. Moreover, an expert review group may require a great deal of time to arrive at a consensus, thus making it difficult for the panel to meet its deadlines. In EC—Hormones, the issue arose as to whether a panel could appoint an individual expert even though the SPS Agreement made specific reference to a technical experts ‘group’. The Appellate Body found that neither Article 11.2 of the SPS Agreement nor Article 13 of the DSU prevented panels from consulting with ‘individual experts’.15 It added that ‘both the SPS Agreement and the DSU leave to the sound discretion of a panel the determination of whether the establishment of an expert review group is necessary or appropriate’.16 B. Consequences of a Panel’s Failure to Consult with Experts or Seek Factual Information In Argentina—Textiles, both parties urged the panel to consult with the International Monetary Fund (IMF) with respect to Argentina’s statistical tax. The panel refused. The Appellate Body found that the panel had not abused its discretion in deciding not to seek the advice of the IMF on this issue.17 However, in US—Large Civil Aircraft, the Appellate Body held that the Panel violated its obligations under DSU Article 11 to make an objective assessment of the matter before it by failing to seek factual information from one of the disputing parties. The complainant, the European Union, had specifically requested the Panel to seek certain factual information from the United States. The Appellate Body stated that, in considering whether to exercise its authority under DSU Article 13, a panel should: … have regard to considerations such as what information is needed to complete the record, whose possession it lies within, what other reasonable means might be used to procure it, why it has not been produced, whether it is fair to request the party in possession of the information to submit it, and whether the information or evidence in question is likely to be necessary to ensure due process and a proper adjudication of the relevant claim(s).18 Thus, although a panel has discretion in deciding whether to seek factual information or expert advice, this discretion is limited where a party has made an explicit request that the panel do so. At the same time, a panel may decide to appoint experts even though no party had requested it to do so. In US-Shrimp, although none of the parties requested the panel to consult with experts, the panel nevertheless decided to appoint experts.19 The WTO Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes20 provide that covered persons ‘shall be independent and impartial, shall avoid direct or indirect conflicts of interest and shall respect the confidentiality of proceedings of bodies pursuant to the dispute settlement mechanism, so that through the observance of such standards of conduct the integrity and impartiality of that mechanism are preserved’.21 The list of covered persons includes ‘an expert participating in the dispute settlement mechanism’ pursuant to an Annex to the Code.22 That Annex, in turn, lists provisions dealing with panel-appointed experts (but not party-appointed experts). C. Limitations on Panel-Appointed Experts As noted above, the Appellate Body has stated that Article 13 of the DSU and Article 11.2 of the SPS Agreement provide panels with a ‘significant investigative authority’. However, the Appellate Body has stressed that this does not alter the burden of proof between the parties. In Japan—Agricultural Products II, the Appellate Body emphasized that ‘this authority cannot be used by a panel to rule in favour of a complaining party which has not established a prima facie case of inconsistency based on specific legal claims asserted by it’.23 It added that a panel is entitled ‘to seek information and advice from experts and from any other relevant source it chooses, pursuant to Article 13 of the DSU and, in an SPS case, Article 11.2 of the SPS Agreement, to help it to understand and evaluate the evidence submitted and the arguments made by the parties, but not to make the case for a complaining party’.24 Information provided by the experts consulted by a panel pursuant to DSU Article 13 is ‘to help it to understand and evaluate the evidence submitted and the arguments made by the parties’.25 Moreover, a panel cannot use the information furnished by the panel-appointed experts to establish the validity of a claim by one of the parties if that party has not already established a prima facie case.26 4. RECOURSE TO EXPERTS PROVIDED UNDER OTHER WTO AGREEMENTS Article 24.3 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement) provides for a ‘Permanent Group of Experts’ (PGE), comprising five independent experts. The PGE was first established in 1996, and the experts chosen serve staggered terms. Under Article 4.5, panels may request the assistance of the PGE ‘with regard to whether the measure in question is a prohibited subsidy’. Indeed, the provision adds that ‘[t]he PGE's conclusions on the issue of whether or not the measure in question is a prohibited subsidy shall be accepted by the panel without modification’. To date, no WTO panel has requested assistance from the PGE, presumably because panels are unwilling to delegate this essentially adjudicative function to experts. Article 18.1 of the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (Customs Valuation Agreement) establishes a Technical Committee on Customs Valuation, composed of representatives from each of the Members. Article 19.4 of this Agreement provides that ‘[a]t the request of a party to the dispute, or on its own initiative, a panel established to examine a dispute relating to the provisions of this Agreement may request the Technical Committee to carry out an examination of any questions requiring technical consideration’. This provision has also never been used by a WTO panel. While these two agreements make specific reference to the use of experts, it is also possible for panels, acting under the overarching authority of DSU Article 13, to appoint experts in disputes involving agreements in which experts are not specifically mentioned. For example, experts could be relied upon to assist a panel in judging a Member’s compliance with Article 5.6 of the SPS Agreement on whether the measure at issue is more trade-restrictive than required to achieve an appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility. Similar issues could arise under Article 2.2 of the TBT Agreement (ie technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create) or under Article XX of the GATT 1994 (ie general exceptions). The question arises as to whether experts could, or should, be used for other provisions that raise similar issues, such as the question as to whether a proposed alternative measure achieves a Member's policy objectives. However, in only one non-SPS dispute to date has a panel appointed experts. In US—Shrimp, the panel appointed experts to help it assess US arguments under Article XX(g) and XX(b) of the GATT 1994 in defence of a US import ban on shrimp harvested in a manner that harmed sea turtles. The panel focused its questions to the experts on sea turtle conservation, habitat and migratory patterns.27 The experts provided extensive information on these issues, on which the disputing parties were permitted to comment.28 As mentioned above, and in marked contrast to their approach in SPS disputes and in one TBT and one Article XX of the GATT 1994 dispute, no WTO panel has formally called upon any outside experts for information or advice, in particular on economic matters. 5. RECOURSE BY PANELS TO OTHER INTERNATIONAL ORGANIZATIONS A. Consultation Mandated by the WTO Agreements There are relatively few provisions in the WTO Agreements that require dispute settlement panels to consult with other international organizations. Article XV:2 of the GATT 1994 obliges the GATT Contracting Parties (now WTO Members) to consult with the IMF when considering ‘problems concerning monetary reserves, balances of payments or foreign exchange arrangements’. Article XV:2 of the GATT 1994 adds that an IMF determination pertaining to certain factual matters must be accepted by the WTO.29 In India—Quantitative Restrictions, the question arose as to whether dispute settlement panels must consult, and abide by such determinations of, the IMF. India argued that a panel had to make its own determination, while the United States took the view that the panel should accept as dispositive the determination of the IMF on the matters of fact specified in Article XV:2 of the GATT 1994. The Appellate Body stated that ‘the Panel did not simply accept the views of the IMF’ but ‘critically assessed these views and also considered other data and opinions in reaching its conclusions’.30 Interestingly, certain WTO Agreements provide that standards adopted by certain standards setting organizations may be used to establish a presumption of WTO-consistency of a challenged measure. Article 3.2 of the SPS Agreement provides that sanitary and phytosanitary measures which conform to international standards ‘shall be deemed to be necessary to protect human, animal or plant life or health’, and presumed to be consistent with the SPS Agreement and of GATT 1994. Annex A, Article 3 lists the relevant authorities that produce international standards within each area: the Codex Alimentarius Commission for food safety measures; the World Organization for Animal Health (OIE) for animal health and the International Plant Protection Convention for plant-related health measures. These provisions in effect allow these other international organizations to determine the presumptive WTO-consistency of a measure challenged in WTO dispute settlement proceedings. It is important to note that this presumption of consistency can be rebutted by the complainant.31 B. Consultation at the Initiative of the Panel With reference to DSU Article 13, several panels have also asked the views of other international organizations, such as the World Customs Organization (WCO),32 the World Intellectual Property Organization (WIPO)33 and the Food and Agriculture Organization (FAO).34 In these cases, the panel sent an official request to the Director-General of the organization concerned seeking his/her agreement and then sent specific questions to that organization. 6. PARTY-APPOINTED EXPERTS A. Legal Basis for Party-Appointed Experts There is no legal provision per se in the WTO covered agreements that allows parties to a dispute to appoint their own experts in dispute settlement proceedings. However, the Appellate Body has ruled that parties are free to determine the composition of their own delegations at the meetings with the panel or the Appellate Body, a ruling broad enough to encompass experts.35 B. Procedures for Party-appointed Experts In each dispute, the panel will adopt Working Procedures in consultation with the parties.36 There are no procedures set out in the Working Procedures for party-appointed experts, and therefore the treatment of a party-appointed expert is usually dealt with on an ad hoc basis. Experts will usually form part of a disputing party’s delegation and may be allowed to make a presentation during the time allocated to that party for its opening statement. Unlike in domestic proceedings, there is no need to qualify a party-appointed expert. A report of a party-appointed expert is typically submitted to the panel as an exhibit in the submission, and is referred to by the party as part of its advocacy. C. Limitations on Use of Party-Appointed Experts There are significant limitations on the use of party-appointed experts in the WTO, particularly in comparison with some other legal systems. For example, there is no cross-examination by the opposing party, or questioning of the experts by the panel. The panel’s questions during hearing—addressed to the disputing WTO Member government—are usually focussed on legal issues rather than on the technical evidence put forward by the expert. There is thus no ‘testing’ by the Panel of expert’s views. 7. RELIANCE ON EXPERTS WITHIN THE WTO SECRETARIAT A. Lack of Technical Expertise on WTO Panels While Article 13.1 of the DSU has been invoked by panels to seek scientific information on SPS or TBT issues, in principle, it would also cover other types of expertise, including on economic issues. Indeed, the Appellate Body has noted that ‘[economic] modelling exercises are likely to be an important analytical tool that a panel should scrutinize. The relative complexity of a model and its parameters is not a reason for a panel to remain agnostic about them. Like other categories of evidence, a panel should reach conclusions with respect to the probative value it accords to economic simulations or models presented to it’.37 The same rationale could readily apply to other types of expert economic evidence. As noted above, Article XX(b) of the GATT 1994 allows WTO Members to take measures that are ‘necessary to protect human … life or health’. A WTO Member could adopt labelling measures to reduce alcohol consumption and argue that such a measure was necessary to protect health. The Appellate Body has found that to justify a measure under Article XX(b), ‘a panel must be satisfied that it brings about a material contribution to the achievement of its objective’.38 The Appellate Body added that ‘[s]uch a demonstration can of course be made by resorting to evidence or data, pertaining to the past or the present’, establishing that the measure at issue ‘makes a material contribution to the protection of public health …’.39 In this example, expert evidence could usefully assist the panel to determine whether such a ‘material contribution’ to the protection of human health by a reduction in alcohol consumption exists, and thus whether the measure can be justified under Article XX(b) of GATT 1994. Similarly, expert evidence could be used to help a panel determine whether a measure is ‘more trade-restrictive than necessary to fulfil a legitimate objective’ within the meaning of Article 2.2 of the TBT Agreement. Part of the analysis under Article 2.2 involves an ‘assessment of whether a proposed alternative measure achieves an equivalent degree of contribution to the relevant legitimate objective …’.40 This assessment of equivalence could also benefit from expert advice. However, to date, panels in non-SPS disputes have not appointed experts for this purpose. B. Types of Expert Involvement DSU Article 27.1 provides that ‘[t]he Secretariat shall have the responsibility of assisting panels, especially on the legal, historical and procedural aspects of the matters dealt with, and of providing secretarial and technical support’. As Chad Bown has explained, the involvement of the Economic Research Division in the WTO Secretariat in providing technical advice ranges from ‘economists as experts’ to ‘economists as equal collaboration partners in the DSU adjudication process’.41 The former role would include an explanation to the panel of a party’s evidence from economic studies or data on market conditions. A party could appoint an economist to interpret data and construct economic models so as to present an empirically-based narrative in support of its legal arguments. Economists in the WTO Secretariat can interpret the output of the model—its econometric estimates or simulated predictions—and translate it into less technical language for use by the non-specialists on the Panel.42 The latter role involves the economists in the Secretariat actually anticipating economic arguments that the parties may make and the ways in which they could make them,43 and providing their assessment of those arguments. This latter role could be defined as ‘experts fantômes’.44 The Economic Research Division also provides support in ‘retaliation’ arbitrations, which are appointed under Article 22.6 of the DSU to determine if the level of suspension of concessions sought by the complaining Member is ‘equivalent’ to the level of nullification or impairment caused by the non-compliant defending Member. A complaining Member would prepare a ‘Methodology Paper’, explaining how it calculated the proposed level of suspension. While the defending party can use its submissions to challenge the Methodology Paper, the WTO arbitrators can get assistance from the WTO Secretariat in assessing the proposed methodology. This could raise due process concerns, as these internal experts provide views to the arbitrators in the absence of the disputing parties. The disputing parties are thus not given the opportunity to address any methodological concerns that the Secretariat may have.45 To date, no panel has sought outside independent expert economic advice, perhaps preferring to rely upon the economists in the WTO Secretariat. As noted by Marceau and Hawkins, ‘[p]anels do, however, consult economists from the Secretariat, including in retaliation arbitration disputes, although this is not noted in the resulting panel reports’.46 8. CONCLUSION The use of panel-appointed experts is far less common in the WTO than in some other international adjudicative bodies, particularly international arbitration tribunals, and clearly less so than in many national courts. Indeed, there is a disconnect between the growing complexity of WTO disputes and the continued reluctance of panels to seek the assistance of experts. This is partly a result of the historical context from which the WTO panel system has arisen, with an initial emphasis on diplomatic forms of dispute resolution, particularly in the earlier days of the GATT 1947. Some countries have been hesitant to transform the WTO dispute settlement system into an entirely judicial one, devoid of any room for diplomacy. This may explain the unwillingness of some WTO Members to use experts to provide evidence. It should be emphasized, however, that the WTO Agreements have granted treaty authority to WTO panels to have recourse to experts. DSU Article 13 provides overarching, general authority for WTO panels to seek recourse to experts under any of the covered WTO Agreements, and on any issue. This general authority is supplemented by specific provisions authorizing the use of technical experts on scientific or technical issues under the SPS Agreement and the TBT Agreement. Unsurprisingly, the use of experts in the WTO to date has been concentrated under the SPS Agreement, which has required panels to examine complex scientific issues. Panels have recognized that they would be essentially unable to adjudicate such disputes without appropriate scientific advice. At the same time, there is much greater scope for panels to have recourse to experts on non-scientific issues as well, particularly on economic matters. Given the use of complex economic models by WTO disputing parties, WTO panels should be more willing to take advice from experts, as indeed US courts often do. As noted above, the trade diplomats, lawyers or academics appointed to many WTO panels often do not have such specific knowledge and could readily benefit from the advice of economic experts. It is also important to recall the demonstrably limited role of experts in the WTO dispute settlement process. They can provide information and advice to panels but the panels will make the relevant determinations of fact and law. The panel, not the experts, will decide whether or not a measure is WTO-consistent. The WTO dispute settlement system is sufficiently mature to permit a growing but limited role for experts. At the same time, increased resort to experts requires a better framework within WTO dispute settlement to support this role. As noted above, a persistent anomaly in the use of experts is the lack of rules of procedure governing how experts interact with the panel or the other party, such as through examination-in-chief or cross-examination. Experts are typically relegated to providing written reports that are not tested at the hearing. Such procedures do not permit experts to be used in a manner that would best assist the panel to discharge its mandate. Changes could readily be made in each panel’s Working Procedures to allow for a more effective use of experts. Such an improvement could be made without any amendments to the WTO Agreements. The use of internal experts within the WTO Secretariat raise potential due process concerns. As discussed above, an expert in the WTO Secretariat can provide its views to the panel in the absence of the disputing parties. Despite these clear deficiencies, the use of experts is now well established in the WTO dispute settlement process, and it would be to the benefit both of WTO Members and the system to allow this trend to continue to grow in the years ahead. Footnotes 1 This article was written in December 2017 and the references to disputes are current as of that date. 2 Appellate Body Reports, US/Canada—Continued Suspension, WT/DS320/AB/R, WT/DS321/AB/R, adopted on 14 November 2008, para 439. The Appellate Body also referred to art 11.2 of the SPS Agreement, a provision addressed further below. 3 Appellate Body Reports, US/Canada—Continued Suspension, para 480. 4 See, eg, US—Upland Cotton (DS267), EC—Aircraft (DS316), US—Large Civil Aircraft (DS353). 5 J Pauwelyn, ‘The Use of Experts in WTO Dispute Settlement’, 331, <http://about.jstor.org/terms> accessed 3 December 2017. 6 JG Sidak, ‘Court-Appointed Neutral Economic Experts’ (2013) 9(2) J Compet L & Econ 359–94, 360. Appointment of such experts is made pursuant to Rule 706 of the Federal Rules of Evidence. 7 The 14 SPS disputes are as follows: Russia-Pigs (EU),WT/DS475/R, adopted on 21 March 2017, US-Animals, WT/DS447/R, adopted on 31 August 2015, India-Agricultural Products, WT/DS430/R, adopted on 19 June 2015, Korea-Bovine Meat (Canada), WT/DS391/R, mutually agreed solution, circulated on 3 July 2012, Australia–Apples, WT/DS367/R, adopted 17 December 2010, US-Continued Suspension, WT/DS320/R, adopted on 14 November 2008, Canada-Continued Suspension, WT/DS321/R, adopted on 14 November 2008, EC-Biotech, WT/DS291/R, WT/DS292/R, WT/DS293/R, adopted on 21 November 2006, Japan-Apples ,WT/DS245/R, adopted on 10 December 2003, Japan–Agricultural Products, WT/DS76/R, adopted on 19 March 1999, Australia-Salmon, Panel and 21.5 proceedings (separate set of experts) WT/DS18/R, adopted on 6 November 1998, and EC-Hormones (US),WT/DS26/R, adopted on 13 February 1998 and EC–Hormones (Canada), WT/DS48/R, adopted on 13 February 1998. The only SPS dispute in which the Panel did not consult experts was US—Poultry (China), WT/DS392/R, adopted on 25 October 2010 because that dispute did not involve an international standard or a risk assessment. 8 Appellate Body Reports, US/Canada—Continued Suspension, para 590. 9 Appellate Body Reports, US/Canada—Continued Suspension, para 481. 10 Appellate Body Reports, US/Canada—Continued Suspension, para 454. 11 Panel Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/R, and Add.1, as modified by Appellate Body Report WT/DS135/AB/R, adopted on 5 April 2001. 12 Panel Report, EC—Asbestos, para 8.80. 13 These comments apply to an expert review group under the DSU and a technical expert group under the TBT Agreement, which are both referred to as ‘expert groups’. 14 Pauwelyn (n 5) 328. 15 Appellate Body Report, EC—Hormones, WT/DS26/AB/R, adopted on 13 February 1998, para 147. 16 Appellate Body Report, EC—Hormones, para 147. 17 Appellate Body Report, Argentina—Textiles, WT/DS56/AB/R, adopted on 22 April 1998, paras 82–86. See also, Appellate Body Report, EC—Sardines, WT/DS231/AB/R, adopted on 23 October 2002, para 302. 18 Appellate Body Report, US—Large Civil Aircraft, WT/DS/353, adopted on 23 March 2012, para 1140. See also, US—Continued Zeroing, WT/DS350/AB/R, adopted on 19 February 2009, paras 318–57. 19 Panel Report, US—Shrimp, WT/DS58/AB/R, adopted on 6 November 1998, para 7.9–7.10. 20 WT/DSB/RC/1, 11 December 1996 (the ‘WTO Rules of Conduct’). 21 WTO Rules of Conduct, II.1. 22 WTO Rules of Conduct, IV.1. 23 Appellate Body Report, Japan—Agricultural Products II, WT/DS76/R, adopted on 19 March 1999, para 129. 24 Appellate Body Report, Japan—Agricultural Products II, para 129. 25 ibid. 26 Panel Report, EC—Asbestos, para 8.81. 27 Panel Report, US—Shrimp, para 5.1. 28 Interestingly, the panel in this dispute recognized, but essentially disregarded, potential conflicts issues: The Panel noted that, in their disclosure forms, three of the proposed experts disclosed what might be considered to be potential conflicts of interest. However, the Panel decided to confirm their appointments being of the view that the disclosed information was not of such a nature as to prevent the individuals concerned from being impartial in providing the scientific information expected of them. The Panel has also taken into account the disclosed information when evaluating the answers provided. The Panel underlined that, in making its choice, it had been guided primarily by the need to gather expertise of the best quality and covering as wide a field as possible. In the small community of sea turtle specialists, it was difficult – if not impossible to reconcile this need with an agreement by all the parties to the dispute on each and every individual concerned. Panel Report, US—Shrimp, para 5.7. 29 art XV:2, provides, among other things, that the WTO ‘shall accept all findings of statistical and other facts presented by the Fund relating to foreign exchange, monetary reserves and balances of payments …’. 30 Appellate Body Report, India—Quantitative Restrictions, WT/DS90/AB/R, adopted on 22 September 1999, para 149. The Appellate Body added that the issue of whether to consider ‘as dispositive specific determinations of the IMF’ was debated before the panel, which did not consider it necessary to decide that issue. As this finding of the Panel was not appealed, the Appellate Body did not take any position on it. Appellate Body Report, India—Quantitative Restrictions, para 152. 31 Appellate Body Report, EC—Hormones, para 170. 32 Panel Report, EC—Chicken Cuts, WT/DS269/R,WT/DS286/R, adopted on 27 September 2005. 33 Panel Report, US-Section 110(5) of the Copyright Act, WT/DS160/R, adopted on 27 July 2000. 34 Panel Report, Korea—Bovine Meat, WT/DS161/R, adopted on 10 January 2001, para 15. 35 Appellate Body Report, EC—Bananas III, WT/DS27/AB/R, adopted on 25 September 1997, paras 5–12. 36 art 12.1 of the DSU provides that Panels shall follow the standard Working Procedures set out in Appendix 3, ‘unless the panel decides otherwise’ after consulting the disputing parties. Thus, panels have the flexibility to adapt their procedures to the particular dispute at hand. 37 Appellate Body Report, United States—Subsidies on Upland Cotton (Recourse to art 21.5 of the DSU by Brazil), WT/DS267/AB/RW, adopted on 20 June 2008, para 357. 38 Appellate Body Report, Brazil—Tyres, WT/DS332/AB/R, adopted on 17 December 2007, para 151. 39 Appellate Body Report, Brazil—Tyres, WT/DS332/AB/R, adopted on 17 December 2007, para 151. 40 Appellate Body Report, US—COOL (art 21.5—Canada and Mexico), WT/DS384/R, WT/DS386/R, adopted on 23 July 2012, para 5.201. (Original emphasis) 41 C Bown, ‘The WTO Secretariat and the Role of Economics in Panels’ in The Law, Economics and Politics of Retaliation in WTO Dispute Settlement, in Chad P. Bown and Joost Pauwelyn (eds) (Cambridge University Press, 2009), 398, 400. 42 ibid 399. 43 ibid 401. 44 Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Merits) [2010] ICJ Rep 14, 108. 45 The arbitrators could, of course, reflect such concerns in their questions to the disputing parties, thus providing an opportunity for response. 46 G Marceau and J Hawkins, ‘Experts in WTO Dispute Settlement’ (2012) J Int Disp Settl 3(3) 493–507, 504. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com 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) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of International Dispute Settlement Oxford University Press

Different Forms of Expert Involvement in WTO Dispute Settlement Proceedings

Loading next page...
 
/lp/ou_press/different-forms-of-expert-involvement-in-wto-dispute-settlement-AIR6IFr8Db
Publisher
Oxford University Press
Copyright
© The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
ISSN
2040-3585
eISSN
2040-3593
D.O.I.
10.1093/jnlids/idy010
Publisher site
See Article on Publisher Site

Abstract

1. INTRODUCTION Disputes before the World Trade Organization (WTO) are often technically or scientifically complex. It is therefore surprising that so few WTO disputes have involved the participation of panel-appointed experts to assist the panelists to understand the issues at stake, or have involved active engagement with party-appointed experts. As of December 2017, there were 227 adopted WTO panel reports, of which only 16 have involved panel-appointed experts.1 The experts that may be used in WTO dispute settlement proceedings have generally been panel-appointed experts on scientific and technical matters. Panels have also consulted with other international organizations, either as mandated by the WTO Agreements or on their own initiative. To date, the role of experts in WTO dispute settlement proceedings has largely been limited to disputes involving the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), which sets down rules for measures governing human, animal and plant life and health. However, the scope for useful involvement of panel-appointed experts in disputes involving other technical agreements, such as the Agreement on Technical Barriers to Trade (TBT Agreement), is broad and has been underutilized to date. Disputing parties are increasingly using experts to provide evidentiary support for their legal arguments, although the Working Procedures adopted by WTO panels for disputes do not usually provide for any active engagement with such experts. This article examines the use of experts in WTO dispute settlement proceedings, focusing on a number of key issues: the broad and overarching authority of panels to ‘seek information’ on any topic, which provides a treaty mandate to consult experts; the specific authority of panels to consult experts on scientific and technical issues; the procedures applicable to the appointment of experts by panels, including due process issues that can arise; the recourse by panels to other international organizations; the use of party-appointed experts; and the limitations on the use of experts. This article also addresses what should be the role of experts such as economists within the WTO Secretariat, who sometimes play a key (but not always transparent) role in advising panels on economic evidence submitted by the parties. Before examining the role of experts in the WTO dispute settlement process, it is useful to recall that WTO panels comprise individuals who often do not have specific expertise on scientific or even economic issues. While the background of panel members varies, it is not unusual to have panels composed of trade diplomats, academics and/or lawyers. These individuals are well-qualified in their own fields, but do not often have specialized technical expertise on matters governed by some of the WTO Agreements. This explains the need to have consultation with appropriate experts. 2. PANEL-APPOINTED EXPERTS UNDER ARTICLE 13.2 OF THE DSU Article 13.1 of the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) gives panels ‘the right to seek information and technical advice from any individual or body which it deems appropriate’. Article 13.2 states that panels may seek information ‘from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter’ before it. The provision adds that ‘[w]ith respect to a factual issue concerning a scientific or other technical matter raised by a party to a dispute, a panel may request an advisory report in writing from an expert review group’. The reason for a panel to seek information and/or technical advice is to facilitate its understanding of the issues in the dispute, to facilitate its ‘objective assessment of the matter before it, including an objective assessment of the facts of the case’, in accordance with Article 11 of the DSU. As the Appellate Body has noted, panels have ‘significant investigative authority’ under Article 13 of the DSU, and ‘broad discretion in exercising this authority’.2 In considering whether to consult experts or an international organization, the panel must determine whether there are areas where it needs assistance in understanding the information placed before it. The Appellate Body has noted that ‘experts consulted by a panel can have a decisive role in a case’.3 The broad authority provided in DSU Article 13 could allow panels to request expert advice on a wide range of matters, including economic evidence. Parties are increasingly submitting expert reports by economists to support their legal arguments.4 However, to date, no WTO panel has appointed an outside economic expert to assist it in its assessment of such expert reports. As Joost Pauwelyn points out, this is in contrast to the practice of courts in the United States to appoint economists, especially in antitrust cases.5 US courts have also appointed neutral economic experts on damages in patent infringement litigation.6 In WTO cases involving complex economic matters, it may be useful for panels to appoint economic experts under DSU Article 13, including to assist them in understanding the expert reports submitted by the parties. 3. PANEL-APPOINTED EXPERTS IN DISPUTES UNDER THE SPS AND TBT AGREEMENTS In addition to the general rule in Article 13 of the DSU, Article 11.2 of the SPS Agreement encourages, but does not require, panels to seek the opinion of experts and relevant international organizations in a dispute involving scientific or technical matters: In a dispute under this Agreement involving scientific or technical issues, a panel should seek advice from experts chosen by the panel in consultation with the parties to the dispute. To this end, the panel may, when it deems appropriate, establish an advisory technical experts group, or consult the relevant international organizations, at the request of either party to the dispute or on its own initiative. In 14 out of 15 disputes involving the SPS Agreement to date, panels have sought advice and technical information from scientific experts and/or international organizations.7 In cases where a panel uses an expert to review a risk assessment or to determine whether there was insufficient scientific evidence to conduct one, it must not use the expert to conduct a de novo review, or to conduct its own risk assessment based on the evidence submitted by the parties. The Appellate Body has stressed that ‘the review power of a panel is not to determine whether the risk assessment undertaken by a WTO Member is correct, but rather to determine whether that risk assessment is supported by coherent reasoning and respectable scientific evidence and is, in this sense, objectively justifiable’.8 The primary reason to choose an expert is for his/her expertise in the issues in the dispute. However, a person who has developed expertise in a particular topic may already have been consulted by governments or other stakeholders (or by one of the parties to the dispute), and so it can be difficult to choose experts that do not have any previous involvement in the case. When selecting experts, therefore, panels must be careful not to select persons who could be perceived as lacking the requisite independence and impartiality. This issue came up in US/Canada-Continued Suspension. In that case, the EC objected to the panel’s inclusion of experts who had participated in a risk assessment that was at issue in the dispute. The Appellate Body agreed, saying that to do so ‘infringed the European Communities' due process rights …’.9 The Appellate Body stated that a panel must assess the disclosed information to evaluate ‘whether there is an objective basis to conclude that an expert's independence or impartiality is likely to be affected or there are justifiable doubts about that expert's independence or impartiality’.10 In those cases, the panel should not appoint that expert. Similarly, Article 14.2 of the TBT Agreement provides that a ‘panel may establish a technical expert group to assist in questions of a technical nature’. There has been only one TBT case in which the panel consulted experts.11 In EC—Asbestos, the panel noted the ‘extreme factual and scientific complexity of this case’, and consulted individual scientific experts under DSU Article 13 on the carcinogenicity of chrysotile fibres, among other issues.12 Interestingly, the panel did not appoint an expert review group pursuant to Article 14.2 of the TBT Agreement. A. Appointment of Expert Review Group or Individual Experts Appendix 4 of the DSU and Annex 2 of the TBT Agreement provide rules and procedures for expert groups.13 Appendix 4 of the DSU states that ‘[p]articipation in expert review groups shall be restricted to persons of professional standing and experience in the field in question’, and Annex 2 of the TBT Agreement includes a nearly-identical provision, although it refers to ‘technical expert groups’. The DSU adds that the ‘expert review group shall submit a draft report to the parties to the dispute with a view to obtaining their comments … in the final report’, which again has been included in almost identical language in the TBT Agreement. The drafters of the provisions for an expert group may have wanted the security that comes from obtaining a consensus view from the experts. In practice, however, no panel has ever appointed an expert review group. This may be because the composition of an expert review group would likely take a lot of time,14 given the likely disagreement between the disputing parties on which experts should be appointed by the panel’. Moreover, an expert review group may require a great deal of time to arrive at a consensus, thus making it difficult for the panel to meet its deadlines. In EC—Hormones, the issue arose as to whether a panel could appoint an individual expert even though the SPS Agreement made specific reference to a technical experts ‘group’. The Appellate Body found that neither Article 11.2 of the SPS Agreement nor Article 13 of the DSU prevented panels from consulting with ‘individual experts’.15 It added that ‘both the SPS Agreement and the DSU leave to the sound discretion of a panel the determination of whether the establishment of an expert review group is necessary or appropriate’.16 B. Consequences of a Panel’s Failure to Consult with Experts or Seek Factual Information In Argentina—Textiles, both parties urged the panel to consult with the International Monetary Fund (IMF) with respect to Argentina’s statistical tax. The panel refused. The Appellate Body found that the panel had not abused its discretion in deciding not to seek the advice of the IMF on this issue.17 However, in US—Large Civil Aircraft, the Appellate Body held that the Panel violated its obligations under DSU Article 11 to make an objective assessment of the matter before it by failing to seek factual information from one of the disputing parties. The complainant, the European Union, had specifically requested the Panel to seek certain factual information from the United States. The Appellate Body stated that, in considering whether to exercise its authority under DSU Article 13, a panel should: … have regard to considerations such as what information is needed to complete the record, whose possession it lies within, what other reasonable means might be used to procure it, why it has not been produced, whether it is fair to request the party in possession of the information to submit it, and whether the information or evidence in question is likely to be necessary to ensure due process and a proper adjudication of the relevant claim(s).18 Thus, although a panel has discretion in deciding whether to seek factual information or expert advice, this discretion is limited where a party has made an explicit request that the panel do so. At the same time, a panel may decide to appoint experts even though no party had requested it to do so. In US-Shrimp, although none of the parties requested the panel to consult with experts, the panel nevertheless decided to appoint experts.19 The WTO Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes20 provide that covered persons ‘shall be independent and impartial, shall avoid direct or indirect conflicts of interest and shall respect the confidentiality of proceedings of bodies pursuant to the dispute settlement mechanism, so that through the observance of such standards of conduct the integrity and impartiality of that mechanism are preserved’.21 The list of covered persons includes ‘an expert participating in the dispute settlement mechanism’ pursuant to an Annex to the Code.22 That Annex, in turn, lists provisions dealing with panel-appointed experts (but not party-appointed experts). C. Limitations on Panel-Appointed Experts As noted above, the Appellate Body has stated that Article 13 of the DSU and Article 11.2 of the SPS Agreement provide panels with a ‘significant investigative authority’. However, the Appellate Body has stressed that this does not alter the burden of proof between the parties. In Japan—Agricultural Products II, the Appellate Body emphasized that ‘this authority cannot be used by a panel to rule in favour of a complaining party which has not established a prima facie case of inconsistency based on specific legal claims asserted by it’.23 It added that a panel is entitled ‘to seek information and advice from experts and from any other relevant source it chooses, pursuant to Article 13 of the DSU and, in an SPS case, Article 11.2 of the SPS Agreement, to help it to understand and evaluate the evidence submitted and the arguments made by the parties, but not to make the case for a complaining party’.24 Information provided by the experts consulted by a panel pursuant to DSU Article 13 is ‘to help it to understand and evaluate the evidence submitted and the arguments made by the parties’.25 Moreover, a panel cannot use the information furnished by the panel-appointed experts to establish the validity of a claim by one of the parties if that party has not already established a prima facie case.26 4. RECOURSE TO EXPERTS PROVIDED UNDER OTHER WTO AGREEMENTS Article 24.3 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement) provides for a ‘Permanent Group of Experts’ (PGE), comprising five independent experts. The PGE was first established in 1996, and the experts chosen serve staggered terms. Under Article 4.5, panels may request the assistance of the PGE ‘with regard to whether the measure in question is a prohibited subsidy’. Indeed, the provision adds that ‘[t]he PGE's conclusions on the issue of whether or not the measure in question is a prohibited subsidy shall be accepted by the panel without modification’. To date, no WTO panel has requested assistance from the PGE, presumably because panels are unwilling to delegate this essentially adjudicative function to experts. Article 18.1 of the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (Customs Valuation Agreement) establishes a Technical Committee on Customs Valuation, composed of representatives from each of the Members. Article 19.4 of this Agreement provides that ‘[a]t the request of a party to the dispute, or on its own initiative, a panel established to examine a dispute relating to the provisions of this Agreement may request the Technical Committee to carry out an examination of any questions requiring technical consideration’. This provision has also never been used by a WTO panel. While these two agreements make specific reference to the use of experts, it is also possible for panels, acting under the overarching authority of DSU Article 13, to appoint experts in disputes involving agreements in which experts are not specifically mentioned. For example, experts could be relied upon to assist a panel in judging a Member’s compliance with Article 5.6 of the SPS Agreement on whether the measure at issue is more trade-restrictive than required to achieve an appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility. Similar issues could arise under Article 2.2 of the TBT Agreement (ie technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create) or under Article XX of the GATT 1994 (ie general exceptions). The question arises as to whether experts could, or should, be used for other provisions that raise similar issues, such as the question as to whether a proposed alternative measure achieves a Member's policy objectives. However, in only one non-SPS dispute to date has a panel appointed experts. In US—Shrimp, the panel appointed experts to help it assess US arguments under Article XX(g) and XX(b) of the GATT 1994 in defence of a US import ban on shrimp harvested in a manner that harmed sea turtles. The panel focused its questions to the experts on sea turtle conservation, habitat and migratory patterns.27 The experts provided extensive information on these issues, on which the disputing parties were permitted to comment.28 As mentioned above, and in marked contrast to their approach in SPS disputes and in one TBT and one Article XX of the GATT 1994 dispute, no WTO panel has formally called upon any outside experts for information or advice, in particular on economic matters. 5. RECOURSE BY PANELS TO OTHER INTERNATIONAL ORGANIZATIONS A. Consultation Mandated by the WTO Agreements There are relatively few provisions in the WTO Agreements that require dispute settlement panels to consult with other international organizations. Article XV:2 of the GATT 1994 obliges the GATT Contracting Parties (now WTO Members) to consult with the IMF when considering ‘problems concerning monetary reserves, balances of payments or foreign exchange arrangements’. Article XV:2 of the GATT 1994 adds that an IMF determination pertaining to certain factual matters must be accepted by the WTO.29 In India—Quantitative Restrictions, the question arose as to whether dispute settlement panels must consult, and abide by such determinations of, the IMF. India argued that a panel had to make its own determination, while the United States took the view that the panel should accept as dispositive the determination of the IMF on the matters of fact specified in Article XV:2 of the GATT 1994. The Appellate Body stated that ‘the Panel did not simply accept the views of the IMF’ but ‘critically assessed these views and also considered other data and opinions in reaching its conclusions’.30 Interestingly, certain WTO Agreements provide that standards adopted by certain standards setting organizations may be used to establish a presumption of WTO-consistency of a challenged measure. Article 3.2 of the SPS Agreement provides that sanitary and phytosanitary measures which conform to international standards ‘shall be deemed to be necessary to protect human, animal or plant life or health’, and presumed to be consistent with the SPS Agreement and of GATT 1994. Annex A, Article 3 lists the relevant authorities that produce international standards within each area: the Codex Alimentarius Commission for food safety measures; the World Organization for Animal Health (OIE) for animal health and the International Plant Protection Convention for plant-related health measures. These provisions in effect allow these other international organizations to determine the presumptive WTO-consistency of a measure challenged in WTO dispute settlement proceedings. It is important to note that this presumption of consistency can be rebutted by the complainant.31 B. Consultation at the Initiative of the Panel With reference to DSU Article 13, several panels have also asked the views of other international organizations, such as the World Customs Organization (WCO),32 the World Intellectual Property Organization (WIPO)33 and the Food and Agriculture Organization (FAO).34 In these cases, the panel sent an official request to the Director-General of the organization concerned seeking his/her agreement and then sent specific questions to that organization. 6. PARTY-APPOINTED EXPERTS A. Legal Basis for Party-Appointed Experts There is no legal provision per se in the WTO covered agreements that allows parties to a dispute to appoint their own experts in dispute settlement proceedings. However, the Appellate Body has ruled that parties are free to determine the composition of their own delegations at the meetings with the panel or the Appellate Body, a ruling broad enough to encompass experts.35 B. Procedures for Party-appointed Experts In each dispute, the panel will adopt Working Procedures in consultation with the parties.36 There are no procedures set out in the Working Procedures for party-appointed experts, and therefore the treatment of a party-appointed expert is usually dealt with on an ad hoc basis. Experts will usually form part of a disputing party’s delegation and may be allowed to make a presentation during the time allocated to that party for its opening statement. Unlike in domestic proceedings, there is no need to qualify a party-appointed expert. A report of a party-appointed expert is typically submitted to the panel as an exhibit in the submission, and is referred to by the party as part of its advocacy. C. Limitations on Use of Party-Appointed Experts There are significant limitations on the use of party-appointed experts in the WTO, particularly in comparison with some other legal systems. For example, there is no cross-examination by the opposing party, or questioning of the experts by the panel. The panel’s questions during hearing—addressed to the disputing WTO Member government—are usually focussed on legal issues rather than on the technical evidence put forward by the expert. There is thus no ‘testing’ by the Panel of expert’s views. 7. RELIANCE ON EXPERTS WITHIN THE WTO SECRETARIAT A. Lack of Technical Expertise on WTO Panels While Article 13.1 of the DSU has been invoked by panels to seek scientific information on SPS or TBT issues, in principle, it would also cover other types of expertise, including on economic issues. Indeed, the Appellate Body has noted that ‘[economic] modelling exercises are likely to be an important analytical tool that a panel should scrutinize. The relative complexity of a model and its parameters is not a reason for a panel to remain agnostic about them. Like other categories of evidence, a panel should reach conclusions with respect to the probative value it accords to economic simulations or models presented to it’.37 The same rationale could readily apply to other types of expert economic evidence. As noted above, Article XX(b) of the GATT 1994 allows WTO Members to take measures that are ‘necessary to protect human … life or health’. A WTO Member could adopt labelling measures to reduce alcohol consumption and argue that such a measure was necessary to protect health. The Appellate Body has found that to justify a measure under Article XX(b), ‘a panel must be satisfied that it brings about a material contribution to the achievement of its objective’.38 The Appellate Body added that ‘[s]uch a demonstration can of course be made by resorting to evidence or data, pertaining to the past or the present’, establishing that the measure at issue ‘makes a material contribution to the protection of public health …’.39 In this example, expert evidence could usefully assist the panel to determine whether such a ‘material contribution’ to the protection of human health by a reduction in alcohol consumption exists, and thus whether the measure can be justified under Article XX(b) of GATT 1994. Similarly, expert evidence could be used to help a panel determine whether a measure is ‘more trade-restrictive than necessary to fulfil a legitimate objective’ within the meaning of Article 2.2 of the TBT Agreement. Part of the analysis under Article 2.2 involves an ‘assessment of whether a proposed alternative measure achieves an equivalent degree of contribution to the relevant legitimate objective …’.40 This assessment of equivalence could also benefit from expert advice. However, to date, panels in non-SPS disputes have not appointed experts for this purpose. B. Types of Expert Involvement DSU Article 27.1 provides that ‘[t]he Secretariat shall have the responsibility of assisting panels, especially on the legal, historical and procedural aspects of the matters dealt with, and of providing secretarial and technical support’. As Chad Bown has explained, the involvement of the Economic Research Division in the WTO Secretariat in providing technical advice ranges from ‘economists as experts’ to ‘economists as equal collaboration partners in the DSU adjudication process’.41 The former role would include an explanation to the panel of a party’s evidence from economic studies or data on market conditions. A party could appoint an economist to interpret data and construct economic models so as to present an empirically-based narrative in support of its legal arguments. Economists in the WTO Secretariat can interpret the output of the model—its econometric estimates or simulated predictions—and translate it into less technical language for use by the non-specialists on the Panel.42 The latter role involves the economists in the Secretariat actually anticipating economic arguments that the parties may make and the ways in which they could make them,43 and providing their assessment of those arguments. This latter role could be defined as ‘experts fantômes’.44 The Economic Research Division also provides support in ‘retaliation’ arbitrations, which are appointed under Article 22.6 of the DSU to determine if the level of suspension of concessions sought by the complaining Member is ‘equivalent’ to the level of nullification or impairment caused by the non-compliant defending Member. A complaining Member would prepare a ‘Methodology Paper’, explaining how it calculated the proposed level of suspension. While the defending party can use its submissions to challenge the Methodology Paper, the WTO arbitrators can get assistance from the WTO Secretariat in assessing the proposed methodology. This could raise due process concerns, as these internal experts provide views to the arbitrators in the absence of the disputing parties. The disputing parties are thus not given the opportunity to address any methodological concerns that the Secretariat may have.45 To date, no panel has sought outside independent expert economic advice, perhaps preferring to rely upon the economists in the WTO Secretariat. As noted by Marceau and Hawkins, ‘[p]anels do, however, consult economists from the Secretariat, including in retaliation arbitration disputes, although this is not noted in the resulting panel reports’.46 8. CONCLUSION The use of panel-appointed experts is far less common in the WTO than in some other international adjudicative bodies, particularly international arbitration tribunals, and clearly less so than in many national courts. Indeed, there is a disconnect between the growing complexity of WTO disputes and the continued reluctance of panels to seek the assistance of experts. This is partly a result of the historical context from which the WTO panel system has arisen, with an initial emphasis on diplomatic forms of dispute resolution, particularly in the earlier days of the GATT 1947. Some countries have been hesitant to transform the WTO dispute settlement system into an entirely judicial one, devoid of any room for diplomacy. This may explain the unwillingness of some WTO Members to use experts to provide evidence. It should be emphasized, however, that the WTO Agreements have granted treaty authority to WTO panels to have recourse to experts. DSU Article 13 provides overarching, general authority for WTO panels to seek recourse to experts under any of the covered WTO Agreements, and on any issue. This general authority is supplemented by specific provisions authorizing the use of technical experts on scientific or technical issues under the SPS Agreement and the TBT Agreement. Unsurprisingly, the use of experts in the WTO to date has been concentrated under the SPS Agreement, which has required panels to examine complex scientific issues. Panels have recognized that they would be essentially unable to adjudicate such disputes without appropriate scientific advice. At the same time, there is much greater scope for panels to have recourse to experts on non-scientific issues as well, particularly on economic matters. Given the use of complex economic models by WTO disputing parties, WTO panels should be more willing to take advice from experts, as indeed US courts often do. As noted above, the trade diplomats, lawyers or academics appointed to many WTO panels often do not have such specific knowledge and could readily benefit from the advice of economic experts. It is also important to recall the demonstrably limited role of experts in the WTO dispute settlement process. They can provide information and advice to panels but the panels will make the relevant determinations of fact and law. The panel, not the experts, will decide whether or not a measure is WTO-consistent. The WTO dispute settlement system is sufficiently mature to permit a growing but limited role for experts. At the same time, increased resort to experts requires a better framework within WTO dispute settlement to support this role. As noted above, a persistent anomaly in the use of experts is the lack of rules of procedure governing how experts interact with the panel or the other party, such as through examination-in-chief or cross-examination. Experts are typically relegated to providing written reports that are not tested at the hearing. Such procedures do not permit experts to be used in a manner that would best assist the panel to discharge its mandate. Changes could readily be made in each panel’s Working Procedures to allow for a more effective use of experts. Such an improvement could be made without any amendments to the WTO Agreements. The use of internal experts within the WTO Secretariat raise potential due process concerns. As discussed above, an expert in the WTO Secretariat can provide its views to the panel in the absence of the disputing parties. Despite these clear deficiencies, the use of experts is now well established in the WTO dispute settlement process, and it would be to the benefit both of WTO Members and the system to allow this trend to continue to grow in the years ahead. Footnotes 1 This article was written in December 2017 and the references to disputes are current as of that date. 2 Appellate Body Reports, US/Canada—Continued Suspension, WT/DS320/AB/R, WT/DS321/AB/R, adopted on 14 November 2008, para 439. The Appellate Body also referred to art 11.2 of the SPS Agreement, a provision addressed further below. 3 Appellate Body Reports, US/Canada—Continued Suspension, para 480. 4 See, eg, US—Upland Cotton (DS267), EC—Aircraft (DS316), US—Large Civil Aircraft (DS353). 5 J Pauwelyn, ‘The Use of Experts in WTO Dispute Settlement’, 331, <http://about.jstor.org/terms> accessed 3 December 2017. 6 JG Sidak, ‘Court-Appointed Neutral Economic Experts’ (2013) 9(2) J Compet L & Econ 359–94, 360. Appointment of such experts is made pursuant to Rule 706 of the Federal Rules of Evidence. 7 The 14 SPS disputes are as follows: Russia-Pigs (EU),WT/DS475/R, adopted on 21 March 2017, US-Animals, WT/DS447/R, adopted on 31 August 2015, India-Agricultural Products, WT/DS430/R, adopted on 19 June 2015, Korea-Bovine Meat (Canada), WT/DS391/R, mutually agreed solution, circulated on 3 July 2012, Australia–Apples, WT/DS367/R, adopted 17 December 2010, US-Continued Suspension, WT/DS320/R, adopted on 14 November 2008, Canada-Continued Suspension, WT/DS321/R, adopted on 14 November 2008, EC-Biotech, WT/DS291/R, WT/DS292/R, WT/DS293/R, adopted on 21 November 2006, Japan-Apples ,WT/DS245/R, adopted on 10 December 2003, Japan–Agricultural Products, WT/DS76/R, adopted on 19 March 1999, Australia-Salmon, Panel and 21.5 proceedings (separate set of experts) WT/DS18/R, adopted on 6 November 1998, and EC-Hormones (US),WT/DS26/R, adopted on 13 February 1998 and EC–Hormones (Canada), WT/DS48/R, adopted on 13 February 1998. The only SPS dispute in which the Panel did not consult experts was US—Poultry (China), WT/DS392/R, adopted on 25 October 2010 because that dispute did not involve an international standard or a risk assessment. 8 Appellate Body Reports, US/Canada—Continued Suspension, para 590. 9 Appellate Body Reports, US/Canada—Continued Suspension, para 481. 10 Appellate Body Reports, US/Canada—Continued Suspension, para 454. 11 Panel Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/R, and Add.1, as modified by Appellate Body Report WT/DS135/AB/R, adopted on 5 April 2001. 12 Panel Report, EC—Asbestos, para 8.80. 13 These comments apply to an expert review group under the DSU and a technical expert group under the TBT Agreement, which are both referred to as ‘expert groups’. 14 Pauwelyn (n 5) 328. 15 Appellate Body Report, EC—Hormones, WT/DS26/AB/R, adopted on 13 February 1998, para 147. 16 Appellate Body Report, EC—Hormones, para 147. 17 Appellate Body Report, Argentina—Textiles, WT/DS56/AB/R, adopted on 22 April 1998, paras 82–86. See also, Appellate Body Report, EC—Sardines, WT/DS231/AB/R, adopted on 23 October 2002, para 302. 18 Appellate Body Report, US—Large Civil Aircraft, WT/DS/353, adopted on 23 March 2012, para 1140. See also, US—Continued Zeroing, WT/DS350/AB/R, adopted on 19 February 2009, paras 318–57. 19 Panel Report, US—Shrimp, WT/DS58/AB/R, adopted on 6 November 1998, para 7.9–7.10. 20 WT/DSB/RC/1, 11 December 1996 (the ‘WTO Rules of Conduct’). 21 WTO Rules of Conduct, II.1. 22 WTO Rules of Conduct, IV.1. 23 Appellate Body Report, Japan—Agricultural Products II, WT/DS76/R, adopted on 19 March 1999, para 129. 24 Appellate Body Report, Japan—Agricultural Products II, para 129. 25 ibid. 26 Panel Report, EC—Asbestos, para 8.81. 27 Panel Report, US—Shrimp, para 5.1. 28 Interestingly, the panel in this dispute recognized, but essentially disregarded, potential conflicts issues: The Panel noted that, in their disclosure forms, three of the proposed experts disclosed what might be considered to be potential conflicts of interest. However, the Panel decided to confirm their appointments being of the view that the disclosed information was not of such a nature as to prevent the individuals concerned from being impartial in providing the scientific information expected of them. The Panel has also taken into account the disclosed information when evaluating the answers provided. The Panel underlined that, in making its choice, it had been guided primarily by the need to gather expertise of the best quality and covering as wide a field as possible. In the small community of sea turtle specialists, it was difficult – if not impossible to reconcile this need with an agreement by all the parties to the dispute on each and every individual concerned. Panel Report, US—Shrimp, para 5.7. 29 art XV:2, provides, among other things, that the WTO ‘shall accept all findings of statistical and other facts presented by the Fund relating to foreign exchange, monetary reserves and balances of payments …’. 30 Appellate Body Report, India—Quantitative Restrictions, WT/DS90/AB/R, adopted on 22 September 1999, para 149. The Appellate Body added that the issue of whether to consider ‘as dispositive specific determinations of the IMF’ was debated before the panel, which did not consider it necessary to decide that issue. As this finding of the Panel was not appealed, the Appellate Body did not take any position on it. Appellate Body Report, India—Quantitative Restrictions, para 152. 31 Appellate Body Report, EC—Hormones, para 170. 32 Panel Report, EC—Chicken Cuts, WT/DS269/R,WT/DS286/R, adopted on 27 September 2005. 33 Panel Report, US-Section 110(5) of the Copyright Act, WT/DS160/R, adopted on 27 July 2000. 34 Panel Report, Korea—Bovine Meat, WT/DS161/R, adopted on 10 January 2001, para 15. 35 Appellate Body Report, EC—Bananas III, WT/DS27/AB/R, adopted on 25 September 1997, paras 5–12. 36 art 12.1 of the DSU provides that Panels shall follow the standard Working Procedures set out in Appendix 3, ‘unless the panel decides otherwise’ after consulting the disputing parties. Thus, panels have the flexibility to adapt their procedures to the particular dispute at hand. 37 Appellate Body Report, United States—Subsidies on Upland Cotton (Recourse to art 21.5 of the DSU by Brazil), WT/DS267/AB/RW, adopted on 20 June 2008, para 357. 38 Appellate Body Report, Brazil—Tyres, WT/DS332/AB/R, adopted on 17 December 2007, para 151. 39 Appellate Body Report, Brazil—Tyres, WT/DS332/AB/R, adopted on 17 December 2007, para 151. 40 Appellate Body Report, US—COOL (art 21.5—Canada and Mexico), WT/DS384/R, WT/DS386/R, adopted on 23 July 2012, para 5.201. (Original emphasis) 41 C Bown, ‘The WTO Secretariat and the Role of Economics in Panels’ in The Law, Economics and Politics of Retaliation in WTO Dispute Settlement, in Chad P. Bown and Joost Pauwelyn (eds) (Cambridge University Press, 2009), 398, 400. 42 ibid 399. 43 ibid 401. 44 Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Merits) [2010] ICJ Rep 14, 108. 45 The arbitrators could, of course, reflect such concerns in their questions to the disputing parties, thus providing an opportunity for response. 46 G Marceau and J Hawkins, ‘Experts in WTO Dispute Settlement’ (2012) J Int Disp Settl 3(3) 493–507, 504. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com 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)

Journal

Journal of International Dispute SettlementOxford University Press

Published: Apr 24, 2018

There are no references for this article.

You’re reading a free preview. Subscribe to read the entire article.


DeepDyve is your
personal research library

It’s your single place to instantly
discover and read the research
that matters to you.

Enjoy affordable access to
over 18 million articles from more than
15,000 peer-reviewed journals.

All for just $49/month

Explore the DeepDyve Library

Search

Query the DeepDyve database, plus search all of PubMed and Google Scholar seamlessly

Organize

Save any article or search result from DeepDyve, PubMed, and Google Scholar... all in one place.

Access

Get unlimited, online access to over 18 million full-text articles from more than 15,000 scientific journals.

Your journals are on DeepDyve

Read from thousands of the leading scholarly journals from SpringerNature, Elsevier, Wiley-Blackwell, Oxford University Press and more.

All the latest content is available, no embargo periods.

See the journals in your area

DeepDyve

Freelancer

DeepDyve

Pro

Price

FREE

$49/month
$360/year

Save searches from
Google Scholar,
PubMed

Create lists to
organize your research

Export lists, citations

Read DeepDyve articles

Abstract access only

Unlimited access to over
18 million full-text articles

Print

20 pages / month

PDF Discount

20% off