Expert Evidence and the Challenge of Procedural Reform in International Dispute Settlement

Expert Evidence and the Challenge of Procedural Reform in International Dispute Settlement Abstract While international courts and tribunals have been criticized recently for their approach to the production and evaluation of expert evidence, it is uncertain how any improvements to the use of expert evidence might be achieved. The prospects for reforming this increasingly significant element of international dispute settlement appear to be rather limited, since any reform initiative must preserve the essential attribute of flexibility with which each international tribunal has been created. Based on a brief survey of the available options, this short comment observes that the best prospect for effecting worthwhile change in the handling and assessment of expert evidence is a court-led model of incremental reform through adjudicative practice. In the recent surge of interest in the evidentiary and procedural aspects of international dispute settlement, the use of expert evidence has attracted particular scrutiny, and many observers—including participants in this Symposium—have directed a number of criticisms at the manner in which international courts and tribunals handle expert evidence.1 The most common critiques concern the lack of clear standards governing the production and evaluation of expert evidence; the failure of international courts to make adequate use of expert assistance when assessing complex technical information, or undue deference to that expert input if it is obtained; and lapses in the standards of procedural fairness when managing the production of evidence by party-appointed experts. These criticisms have been echoed by judges and arbitrators,2 and there appears to be a growing acceptance, as the use of expert evidence becomes a more common and significant feature in international litigation, that the processes governing the production and assessment of this evidence need to be improved. But this recognition of the need for improvement in the handling of expert evidence prompts a number of related questions. How might this improvement be achieved? Which methods and means are most likely to produce meaningful changes in international courts’ handling of expert evidence? Conversely, what types of reforms are not likely to be suitable or feasible? These are important questions, but they do not admit of easy answers. Indeed, reform of the evidentiary and procedural aspects of international dispute settlement has proven to be difficult in the past, and previous attempts have yielded only minor changes.3 Since each international tribunal has been purposefully created by states to embody and uphold a particular set of values, principles and interests, any attempt to modify that body’s powers or procedures, risks disturbing the careful balance of elements upon which the states have agreed. It seems essential, therefore, that any new proposal to adjust or update an existing procedural framework must preserve its fundamental characteristics if it is to stand any chance of being implemented. Viewed in this light, the core features of each international dispute settlement body actually operate as limits upon the possibility for its future reform. 1. THE SIGNIFICANCE OF FLEXIBILITY IN INTERNATIONAL DISPUTE SETTLEMENT PROCEDURES One of the central features of international courts and tribunals is their immense flexibility.4 Accordingly, this attribute represents one of the most significant constraints upon the prospects for improving the handling of expert evidence, since any reform proposal must ensure that this cardinal attribute is preserved. The flexibility of international courts is especially apparent in their approach to fact-finding, as the procedural frameworks in most tribunals affords both litigants and adjudicators alike a very wide latitude in their respective efforts to establish the facts underlying the legal dispute. This latitude is a corollary of the principle of the free admissibility of evidence to which international courts adhere so firmly. In keeping with this principle, the rules relating to the production and examination of evidence are couched in very general terms and are broadly permissive in character, with the result that the parties are free to bring whatever information they consider useful, presented in virtually any manner they think best, in order to substantiate their factual allegations. This freedom in the production and presentation of evidence stands in stark contrast to the usual practice of domestic courts, which typically apply technical rules to exclude certain types of evidence so that the court will ultimately base its decision only on those forms of evidence which can generally be expected to be most reliable and most relevant.5 Complementing the freedom afforded to the parties, adjudicators and arbitrators are typically entrusted with extensive powers to ensure that they can gain the fullest possible knowledge of the facts in dispute so that they may discharge their fact-finding function in a robust manner.6 So, while international courts and tribunals primarily act as supervisors of the production of written and testimonial evidence by the parties, as a common law court would be accustomed to do, they are also empowered to undertake their own enquiries and to seek production of evidence on their own initiative, in a manner akin to the inquisitorial approach of courts in civil law jurisdictions.7 The same thoroughgoing flexibility is apparent in international courts’ handling of expert evidence too. While parties are entitled to present expert opinions, either in the form of written reports or oral testimony, and to question the experts put forward by their opponents during the proceedings, international courts and tribunals are also empowered to appoint experts, acting individually or as a group, to provide information or opinions that might assist the adjudicators in decision-making.8 Clearly, flexibility is a crucial element—perhaps even the defining characteristic or, as Lauterpacht called it, the ‘guiding principle’—of international dispute settlement.9 But in order to understand more fully why flexibility is so vital, and why it is necessary for any attempt at procedural reform to preserve it, it is worth recalling briefly some of the important reasons why international courts and tribunals have been created as such highly adaptable institutions. For a start, this flexibility safeguards the formal equality and diversity of sovereign litigants, since the grant of freedom to parties in pleading and substantiating their claims as they wish avoids the impression of bias which might arise if an international court adopted evidentiary practices and which may be seen to offer an advantage to those states familiar with similar practices in their domestic legal system. Consequently, flexibility enhances the appeal of international fora to potential litigants. Furthermore, this broad flexibility allows the participants in international dispute settlement—both adjudicators and litigators alike—to employ whatever means are necessary in the specific circumstances of each case to obtain the information necessary to ascertain the facts at issue in the dispute. This ability to tailor the fact-finding approach in each case may bring straightforward advantages in the form of improved efficiency and reduced costs (if, for example, the parties opted not to appoint two sets of opposing experts but agreed instead to ask the tribunal to appoint a neutral expert to provide an opinion). But it may also bring more significant benefits, as it ensures that the court is always equipped to tackle novel questions and is competent to resolve factual controversies concerning any sort of subject matter, including specialized areas of practice. This minimizes the risk that international adjudicators might, for want of sufficient information, be compelled to render a binding decision on a mere technicality or point of procedure.10 The Permanent Court of International Justice recognized early that this would be an unsatisfactory eventuality because it would undermine confidence in international courts’ aptitude to settle matters of the greatest political sensitivity or practical significance.11 The provision of flexibility is intended to prevent such an undesirable outcome. These reasons remain pertinent today. If anything, the need for flexibility in international dispute settlement might even be greater now, seeing that international legal rules have grown in number, reach, variety and complexity.12 As international proceedings encompass a widening array of issues and interests, adjudicators must possess the means to gather and understand the factual context of each dispute, irrespective of its nature, longevity or location. It seems vital, therefore, that any efforts to improve the use of expert evidence in international litigation must retain or preserve the flexibility that is central to the character and conduct of existing systems of dispute settlement. However, considering some of the proposals that have been made or the options that are presently available for bettering the handling of expert evidence, it appears that some of them—such as revision of mandatory rules of procedure or creation of optional codes of conduct—are unlikely to be suitable or successful when it comes to making changes that improve the use of expert evidence while also guaranteeing the freedom in fact-finding, which is very important for international systems of dispute settlement. 2. FIRST REFORM OPTION: REVISION OF RULES OF EVIDENCE AND PROCEDURE The first reform option calls for international tribunals to revise their own rules of evidence and procedure to incorporate a more detailed set of standards to govern the production, handling and evaluation of expert input. This proposal reflects a common perception that the existing rules of evidence are inadequate or under-developed,13 as it is tempting to think that the appropriate remedy for this deficiency is to introduce additional rules.14 However, there are two reasons to doubt whether such an initiative would succeed in improving the contemporary approach to expert evidence. First, it is unrealistic to expect that major changes would be made to the rules of evidence currently applicable before international courts and tribunals. International courts and tribunals have adopted a mostly conservative approach to procedural reform in the past, as the 1978 revision by the International Court of Justice (ICJ) of its Rules of Court demonstrates, and it is difficult to envisage that judges and arbitrators today would seek to introduce a more rigid or restrictive system to control the use of experts that while doing so would curtail the freedom of sovereign litigants to plead and prove their case as they see fit and unsettle the flexible character with which these bodies were constituted.15 Secondly, it is questionable whether the problematic aspects of the contemporary use of expert evidence are attributable to the way in which the rules are currently formulated. Many observers complain that the powers which are already available under the existing rules are not being used effectively to manage the production and assessment of expert evidence. According to this perspective, it is more important that courts change the way they operate within the extremely broad parameters of the existing rules rather than changing those rules themselves. In particular, commentators often call upon international courts and tribunals to be less passive in their approach to expert evidence, and to appoint experts of their own or to undertake their own questioning of the party-appointed experts in order to produce a reliable understanding of the complex facts at issue.16 For these reasons, it seems unlikely that a formal revision of the applicable rules in each court and tribunal would improve appreciably the use of expert evidence in international dispute settlement. 3. SECOND REFORM OPTION: DEVELOPMENT OF CODES OF PRACTICE Another proposal would seek to shape practice by devising a code of practice which might encourage parties to adopt certain practices when litigating disputes requiring expert input before an international tribunal.17 Because this initiative would not be compulsory, a more detailed and more tightly controlled procedure could be proposed, but, as with any voluntary code, the efficacy of the initiative would of course depend on its popularity with litigants. Some parties will always prefer to retain as much flexibility as possible in the conduct of their proceedings, while others might be encouraged to adopt such a code if examples of its usage demonstrate that it offers an effective and efficient method for utilizing expert input. But such an approach which relies upon ad hoc adoption by the parties is unlikely to produce consistent or far-reaching improvement in the general practice of international courts and tribunals. After all, the history of international dispute settlement is replete with examples of procedures or powers which have been made available to states but which have never, or only seldom, been put to use.18 Having said that, these standards might well inspire courts and tribunals to adopt a similar approach in self-handling and assessment of expert evidence.19 4. THIRD REFORM OPTION: INCREMENTAL IMPROVEMENT THROUGH CASE LAW The final method for improving the use of expert evidence is a court-led process of ongoing review and refinement through practice. In other words, the final option is to allow international courts and tribunals to undertake incremental reform of their handling and evaluation of expert evidence in the course of adjudicating each matter that comes before them. Under this model, improvements might be achieved if international courts provide detailed explanations both of the manner in which expert evidence has been produced during the proceedings and of the value which has been attached to that evidence by the court in arriving at its ultimate decision. Of course, this option represents in essence a continuation of the status quo insofar as it is already the case that the procedural law of international dispute settlement is largely developed through the reasoned decision-making of international courts and tribunals. Adjudicators, while not formally bound to adhere to past practice, generally follow the example set by their predecessors on matters of procedure and evidence. However, therein lies a significant part of the problem: when it comes to matters of evidence and fact-finding, international courts and tribunals have tended not to explain their approach with clarity or detail, and they have, as a result, been criticized by numerous observers for the vagueness and obscurity which surrounds their fact-finding practice.20 In fact, the most notorious example of international tribunals’ evasiveness and opacity in respect of their fact-finding specifically concerns expert evidence: that is, the dubious practice of certain tribunals appointing their own experts to assist their deliberations without consulting—or even informing—the parties involved in the proceedings, the so-called ‘phantom experts’.21 The revelation of this practice shows that international courts and tribunals have all too often failed to provide the transparency upon which the practice-led model of procedural reform relies. Consequently, if a process of judicial review and refinement is to have any prospect of improving the use of expert evidence, a small but significant shift in attitude is required on the part of international adjudicators. In particular, tribunals will need to demonstrate a firm and unflinching commitment to transparency and specificity when making procedural determinations and findings of fact. Courts can meet this challenge by ensuring that they provide, in as complete and detailed manner as possible, an account of the process by which expert evidence was admitted and examined during the proceedings, together with a comprehensive explanation of the value which has been attached to this evidence by the court when making its final decision.22 International tribunals may also respond to this call for greater transparency by offering guidance as to their procedural preferences in the form of practice directions or other non-binding recommendations. These documents are helpful for future litigants, and for other international adjudicators, as they provide a glimpse into the thinking of a particular court, while allowing that body, freed of the discipline generated by the need to decide a matter with binding effect upon the parties, to articulate their views concerning the utility and suitability of certain evidentiary practices. In this way, practice directions are useful resources for communicating the court’s attitude on points of evidence and procedure to a broader audience of potential litigants and other courts and tribunals. While the shift in approach required to uphold the goal of transparency in the treatment of expert evidence would only be small, the positive effects which can be expected to follow such a change would be significant. For a start, it would go a long way towards meeting the criticism that international tribunals have been unhelpfully vague, opaque and even diffident in their engagement with and evaluation of expert evidence.23 In addition, it would bolster the fairness of international dispute settlement processes by ensuring that the parties are fully apprised of the procedures followed by the court and, ideally, given the opportunity to comment on those procedures and the information produced thereby. Moreover, demonstrating a strong and consistent commitment to transparency in evidentiary matters would enhance the legitimacy of international tribunals’ decision-making, as it would provide a firmer basis for understanding the binding judgment rendered in a particular case, and so would help to dispel any impression of arbitrariness which might emerge when decision-makers’ practices are obscure. This court-led model of incremental reform through practice would by no means be perfect—it is typically a slow process, subject to variability on account of the changing personnel in the international judiciary, and it admits the risk that a jumbled set of procedural principles may be developed through piecemeal practice—but it allows room for new techniques (such as expert witness conferencing or ‘hot tubbing’) to be tried and, if successful, to be employed in subsequent cases, either as an alternative or a supplement to more common methods of presenting and testing expert evidence. While providing a mechanism for effecting change, this model would also preserve flexibility, both for courts and litigating parties, as any practices that are considered to be inappropriate in the context of a specific case might be eschewed. It would also preserve the integrity of the judicial and arbitral function, by ensuring that judges and arbitrators ultimately retain the competence to control the process by which expert evidence is adduced and to decide the ultimate value of that evidence, without delegating authority unduly to the experts involved in the proceedings. 5. SIGNS OF IMPROVEMENT? There are indications in recent practice that international courts and tribunals are already taking steps to improve their handling of expert evidence. Taking the ICJ as an example, there are positive signals in the recent case law which suggest that the Court is dealing with the production and testing of expert evidence in a more assured and definite fashion. In Pulp Mills, the ICJ expressed its clear preference that persons providing evidence based on their scientific or technical knowledge ‘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’,24 while Judges Al-Khasawneh and Simma confronted and criticized directly the past use of phantom experts by the Court, in addition to citing examples of best practice by other tribunals as inspiration for the Court’s handling of expert inputs in the future.25 In the Whaling in the Antarctic case, the ICJ adopted a more muscular approach to the production and examination of expert evidence, overseeing a relatively vigorous and thorough process of cross-examination of party-appointed experts during the oral pleadings, as well as asking questions of those experts themselves. The Court’s judgment provided a new level of detail while analysing the expert evidence, suggesting that the ICJ is increasingly aware of the need for transparency, and the ICJ took pains to distinguish the factual conclusions provided by the parties’ experts based on their scientific expertise from the legal conclusions provided by the Court based on its interpretation of the applicable treaty text.26 In Nicaragua v Colombia, the ICJ rejected the conclusion reached by an expert appointed by Colombia on the basis that it was inaccurate in the specific context at hand.27 And most recently in Costa Rica v Nicaragua, the Court declined to appoint a neutral expert, as requested by Nicaragua but opposed by Costa Rica, but it did engage in discussion with the parties as to the appropriate modalities for examining the witnesses they each presented, and it ultimately made a robust, critical assessment of the expert evidence. It expressed doubts about the expert evidence produced by Costa Rica because it queried the reliability of the methodology which it used, and it eschewed the estimates of environmental damage provided by the Nicaraguan expert because the Court considered that they were not substantiated by empirical data.28 As this very brief survey of the recent practice indicates, the ICJ appears to be aware of the need to improve the handling of expert evidence, and is taking the opportunity, however gradually, to develop a more detailed and transparent approach to the handling and assessment of expert evidence. While many issues remain to be clarified, not least the method of appointment of experts,29 and the form of cross-examination procedures,30 the ICJ’s approach to expert evidence is, perhaps belatedly, becoming more sophisticated and certain, a trend which is also discernible in the practice of other tribunals.31 It is to be hoped that, when embarking on this process of review and reform, international courts pay heed not only to their own analyses of deficiencies and to the views of the parties appearing before them, but also to observers who may identify unintended consequences and analyse unforeseen implications, and to other ICTs. This is a conversation in which all actors with an interest in the effectiveness and legitimacy of international dispute settlement may, and should, participate. Footnotes 1 Eg J Devaney, Fact-Finding before the International Court of Justice (CUP 2017); L Malintoppi, ‘Fact-Finding and Evidence before the International Court of Justice (Notably in Scientific-Related Disputes)’ (2016) 7 JIDS 421; G Marceau and J Hawkins, ‘Experts in WTO Dispute Settlement’ (2012) 3 JIDS 493; C Foster, Science and the Precautionary Principle in International Courts and Tribunals (CUP 2011); A Riddell and B Plant, Evidence before the International Court of Justice (BIICL 2009); C Romano, ‘The Role of Experts in International Adjudication’ in Le droit international face aux défis environmentaux (SFDI/Pedone 2009), J Pauwelyn, ‘The Use of Experts in WTO Dispute Settlement’ (2002) 51 ICLQ 325. 2 Eg Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica vNicaragua), Judgment on Compensation, Dissenting Opinion of Judge ad hoc Dugard, International Court of Justice, 2 February 2018, paras 22–28 (not yet reported); Pulp Mills on the River Uruguay (Argentina vUruguay), Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, ICJ Rep 2010, 109–17, paras 3–17, and Dissenting Opinion of Judge ad hoc Vinuesa, 284–85, paras 70–72. See also US/Canada – Continued Suspension of Obligations in the EC–Hormones Dispute, WTO Appellate Body Report, WT/DS321/AB/R, paras 433ff. 3 S Rosenne, ‘Some Reflections on the 1978 Revised Rules of the International Court of Justice’ (1981) 19 Columbia J Transnat L 235. 4 C Amerasinghe, Evidence in International Litigation (Martinus Nijhoff 2005) 148, 164, 209–10. 5 The distinction between procedural and substantive issues does not apply readily in international dispute settlement: MN Shaw, Rosenne’s Law and Practice of the International Court: 1920–2015 (5th edn, Brill 2016) vol 3, para 254. See also ibid 43. 6 The fact-finding powers of the respective international courts and tribunals are provided in the following instruments: ICJ—Statute of the International Court of Justice, arts 43–54, ICJ Rules of Court (1978), arts 9, 44–72, 101; ITLOS—Statute of the International Tribunal for the Law of the Sea, arts 16, 26–28, ITLOS Rules of the Tribunal, arts 15, 44–84 (especially 76–84); WTO—Understanding on Rules and Procedures Governing the Settlement of Disputes, arts 11–13, apps 3 and 4; Permanent Court of Arbitration—Arbitration Rules 2012, arts 17, 27–9; Iran–US Claims Tribunal, Rules of Procedure, arts 15, 25, 27. 7 See Riddell and Plant (n 1) chs 2 and 3 and G White, The Use of Experts by International Tribunals (Syracuse University Press 1965) 15–33. 8 ICJ—Statute, arts 43, 50–51, Rules of Court, arts 58, 62–70; ITLOS—Rules of the Tribunal, arts 15, 44, 72–80, 82–84; WTO—DSU, art 13, app 4; PCA—Arbitration Rules, arts 17, 27–29; Iran–US Claims Tribunal, Rules of Procedure, arts 15, 25, 27. 9 H Lauterpacht, The Development of International Law by the International Court (Stevens & Sons 1958) 366. 10 D Sandifer, Evidence before International Tribunals (University Press of Virginia 1975) 3–4. 11 Case of the Free Zones of Upper Savoy and the District of Gex, PCIJ Rep, No 46, Series A/B, 7 June 1932, 155. 12 The expansion of international law in recent decades has been well documented; see eg MN Shaw, International Law (8th edn, CUP 2018) 1–50; J Crawford, ‘Chance, Order, Change: The Course of International Law’ (2013) 365 Recueil des Cours 9, 137–252; S Sur, ‘La créativité du droit international’ (2013) 363 Recueil des Cours 9, 309–31; A Boyle and C Chinkin, The Making of International Law (OUP 2007) 1–40; A Peters, ‘The Growth of International Law between Globalization and the Great Power’ (2005) 8 ARIEL 109; P-M Dupuy, ‘L’unité de l’ordre juridique international: course general de droit international’ (2000) 297 Recueil des Cours 1, 25–42. 13 See Case Concerning Oil Platforms, Separate Opinion of Judge Owada, ICJ Rep 2003, 322, para 52 and Case Concerning Gabčíkovo–Nagymaros Project, Separate Opinion of Vice-President Weeramantry, ICJ Rep 1997, 118. 14 Peat, for example, proposes revising the rules to introduce a pre-trial screening procedure to ensure that only expert input which is truly necessary to ascertaining the relevant facts would be permitted to participate in the proceedings: D Peat, ‘The Use of Court-Appointed Experts by the International Court of Justice’ (2014) 84 BYIL 271. 15 When the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules were modified in 2010, the changes seemed to enhance the flexibility afforded to parties, as specific provisions were inserted to clarify that evidence from party-appointed experts could be produced in arbitrations conducted under these Rules. 16 D Joyce, ‘Fact-Finding and Evidence at the International Court of Justice: Systemic Crisis, Change, or More of the Same?’ (2007) 18 FinnishYIL 283, 285–88; C Thomas, ‘Of Facts and Phantoms: Economics, Epistemic Legitimacy and WTO Dispute Settlement’ (2011) 14 JIEL 295, 321–22; Pauwelyn (n 1) 339–40; P Okowa, ‘Environmental Dispute Settlement: Some Reflections on Recent Developments’ in M Evans (ed), Remedies in International Law (Hart 1998) 157, 167; T Scovazzi, ‘Between Law and Science: Some Considerations Inspired by the Whaling in the Antarctic Judgment’ (2015) 14 Questions of International Law Zoom-in 13. 17 C Brower, ‘Evidence before International Tribunals: The Need for Some Standard Rules’ (1994) 28 (1) International Lawyer 47, 58. For examples of voluntary codes, see, in the field of international commercial arbitration, the Chartered Institute of Arbitrators’ Protocol for the Use of Party Appointed Expert Witnesses in International Arbitration 2007 or the Permanent Court of Arbitration’s Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment 2001. 18 The ICJ has never exercised its power under art 38 of the Statute to decide a case ex aequo et bono, having never been requested by any states to do so. Additionally, no state ever requested to have its case dealt with by the ICJ’s Chamber for Environmental Matters, prompting the Court to discontinue that Chamber in 2006. Similarly, only one of the five Special Chambers which are available to states under the ITLOS Statute has ever been requested to hear a dispute. (The Chamber of Summary Procedure, the Chamber for Fisheries Dispute, the Chamber for Marine Environment Disputes and the Chamber for Maritime Delimitation Disputes have not been used. The Seabed Disputes Chamber has only been requested to give an Advisory Opinion, while Special Chambers to hear particular disputes under art 15, para 2 of the Statute have twice been formed on the request of the parties.) 19 Judge Donoghue refers, in specific relation to witness statements, to the IBA Rules on the Taking of Evidence in International Arbitration 2010 in her Declaration in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment of 3 February 2015, ICJ Rep 2015, 391, paras 4–6. 20 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment of 3 February 2015, Declaration of Judge Donoghue, 390–2, paras 3–4, 9; Malintoppi (n 1) 444; Thomas (n 16) 309. 21 Pulp Mills, Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, 114, para 14. See Riddell and Plant (n 1) 336–39, Thomas, ibid, 308–12; P Couvreur, ‘Le règlement jurisdictionnel’ in Société française pour le droit international (ed), Le processus de délimitation maritime (Pedone 2004) 349, 384. 22 Especially laudable in this regard is the example provided by WTO panels in annexing to their reports a statement of the working procedures followed when consulting with the experts and transcripts of those meetings: see eg Australia – Measures Affecting the Importation of Apples from New Zealand, Panel Report, WT/DS367/R, 9 August 2010, Annexes A-3 and B. Devaney calls upon the ICJ to develop a ‘clear strategy’ to deal with experts: See (n 1) 217. 23 Devaney (n 1) 73–126; Riddell and Plant (n 1) 69–75 and references therein. 24 Pulp Mills, Judgment, 72, para 167. 25 Pulp Mills, Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, 114–6, paras 14–16. 26 Whaling in the Antarctic (Australia v Japan: New Zealand Intervening), Judgment, ICJ Rep 2014, 226, 257, para 82, 27 Case Concerning the Territorial and Maritime Dispute (Nicaragua vColombia), Judgment, ICJ Rep 2012, 624, 644–45, paras 36–38. 28 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica vNicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua vCosta Rica), Judgment, ICJ Rep 2015, 665, 733, para 203. 29 M Mbengue, ‘Scientific Fact-Finding at the International Court of Justice: An Appraisal in the Aftermath of the Whaling Case’ (2016) 29 Leiden JIL 529, 543–46. 30 Devaney (n 1) 229. 31 Inter alia, see the use of tribunal-appointed experts in two recent cases brought before arbitral tribunals in accordance with Annex VII of the UN Convention on the Law of the Sea: the South China Sea Arbitration (Republic of Philippines v People’s Republic of China), Award, 12 July 2016, PCA Case 2013–19, 18–19, 29–38, 429–31 and Delimitation of the Maritime Boundary between Guyana and Suriname, Award, 17 September 2007, 30 RIAA 1, 17–31, app. The Tribunal in the Abyei Arbitration, operating under the PCA’s Optional Rules for Arbitrating Disputes between Two Parties of Which Only One is a State, also had recourse to a tribunal-appointed expert: Final Award, 22 July 2009, 19–20. For a comparative review of various international tribunals’ recent practice concerning expert evidence, see Foster (n 1) 77–182 and Devaney (n 1) 130–78. © 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

Expert Evidence and the Challenge of Procedural Reform in International Dispute Settlement

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Abstract

Abstract While international courts and tribunals have been criticized recently for their approach to the production and evaluation of expert evidence, it is uncertain how any improvements to the use of expert evidence might be achieved. The prospects for reforming this increasingly significant element of international dispute settlement appear to be rather limited, since any reform initiative must preserve the essential attribute of flexibility with which each international tribunal has been created. Based on a brief survey of the available options, this short comment observes that the best prospect for effecting worthwhile change in the handling and assessment of expert evidence is a court-led model of incremental reform through adjudicative practice. In the recent surge of interest in the evidentiary and procedural aspects of international dispute settlement, the use of expert evidence has attracted particular scrutiny, and many observers—including participants in this Symposium—have directed a number of criticisms at the manner in which international courts and tribunals handle expert evidence.1 The most common critiques concern the lack of clear standards governing the production and evaluation of expert evidence; the failure of international courts to make adequate use of expert assistance when assessing complex technical information, or undue deference to that expert input if it is obtained; and lapses in the standards of procedural fairness when managing the production of evidence by party-appointed experts. These criticisms have been echoed by judges and arbitrators,2 and there appears to be a growing acceptance, as the use of expert evidence becomes a more common and significant feature in international litigation, that the processes governing the production and assessment of this evidence need to be improved. But this recognition of the need for improvement in the handling of expert evidence prompts a number of related questions. How might this improvement be achieved? Which methods and means are most likely to produce meaningful changes in international courts’ handling of expert evidence? Conversely, what types of reforms are not likely to be suitable or feasible? These are important questions, but they do not admit of easy answers. Indeed, reform of the evidentiary and procedural aspects of international dispute settlement has proven to be difficult in the past, and previous attempts have yielded only minor changes.3 Since each international tribunal has been purposefully created by states to embody and uphold a particular set of values, principles and interests, any attempt to modify that body’s powers or procedures, risks disturbing the careful balance of elements upon which the states have agreed. It seems essential, therefore, that any new proposal to adjust or update an existing procedural framework must preserve its fundamental characteristics if it is to stand any chance of being implemented. Viewed in this light, the core features of each international dispute settlement body actually operate as limits upon the possibility for its future reform. 1. THE SIGNIFICANCE OF FLEXIBILITY IN INTERNATIONAL DISPUTE SETTLEMENT PROCEDURES One of the central features of international courts and tribunals is their immense flexibility.4 Accordingly, this attribute represents one of the most significant constraints upon the prospects for improving the handling of expert evidence, since any reform proposal must ensure that this cardinal attribute is preserved. The flexibility of international courts is especially apparent in their approach to fact-finding, as the procedural frameworks in most tribunals affords both litigants and adjudicators alike a very wide latitude in their respective efforts to establish the facts underlying the legal dispute. This latitude is a corollary of the principle of the free admissibility of evidence to which international courts adhere so firmly. In keeping with this principle, the rules relating to the production and examination of evidence are couched in very general terms and are broadly permissive in character, with the result that the parties are free to bring whatever information they consider useful, presented in virtually any manner they think best, in order to substantiate their factual allegations. This freedom in the production and presentation of evidence stands in stark contrast to the usual practice of domestic courts, which typically apply technical rules to exclude certain types of evidence so that the court will ultimately base its decision only on those forms of evidence which can generally be expected to be most reliable and most relevant.5 Complementing the freedom afforded to the parties, adjudicators and arbitrators are typically entrusted with extensive powers to ensure that they can gain the fullest possible knowledge of the facts in dispute so that they may discharge their fact-finding function in a robust manner.6 So, while international courts and tribunals primarily act as supervisors of the production of written and testimonial evidence by the parties, as a common law court would be accustomed to do, they are also empowered to undertake their own enquiries and to seek production of evidence on their own initiative, in a manner akin to the inquisitorial approach of courts in civil law jurisdictions.7 The same thoroughgoing flexibility is apparent in international courts’ handling of expert evidence too. While parties are entitled to present expert opinions, either in the form of written reports or oral testimony, and to question the experts put forward by their opponents during the proceedings, international courts and tribunals are also empowered to appoint experts, acting individually or as a group, to provide information or opinions that might assist the adjudicators in decision-making.8 Clearly, flexibility is a crucial element—perhaps even the defining characteristic or, as Lauterpacht called it, the ‘guiding principle’—of international dispute settlement.9 But in order to understand more fully why flexibility is so vital, and why it is necessary for any attempt at procedural reform to preserve it, it is worth recalling briefly some of the important reasons why international courts and tribunals have been created as such highly adaptable institutions. For a start, this flexibility safeguards the formal equality and diversity of sovereign litigants, since the grant of freedom to parties in pleading and substantiating their claims as they wish avoids the impression of bias which might arise if an international court adopted evidentiary practices and which may be seen to offer an advantage to those states familiar with similar practices in their domestic legal system. Consequently, flexibility enhances the appeal of international fora to potential litigants. Furthermore, this broad flexibility allows the participants in international dispute settlement—both adjudicators and litigators alike—to employ whatever means are necessary in the specific circumstances of each case to obtain the information necessary to ascertain the facts at issue in the dispute. This ability to tailor the fact-finding approach in each case may bring straightforward advantages in the form of improved efficiency and reduced costs (if, for example, the parties opted not to appoint two sets of opposing experts but agreed instead to ask the tribunal to appoint a neutral expert to provide an opinion). But it may also bring more significant benefits, as it ensures that the court is always equipped to tackle novel questions and is competent to resolve factual controversies concerning any sort of subject matter, including specialized areas of practice. This minimizes the risk that international adjudicators might, for want of sufficient information, be compelled to render a binding decision on a mere technicality or point of procedure.10 The Permanent Court of International Justice recognized early that this would be an unsatisfactory eventuality because it would undermine confidence in international courts’ aptitude to settle matters of the greatest political sensitivity or practical significance.11 The provision of flexibility is intended to prevent such an undesirable outcome. These reasons remain pertinent today. If anything, the need for flexibility in international dispute settlement might even be greater now, seeing that international legal rules have grown in number, reach, variety and complexity.12 As international proceedings encompass a widening array of issues and interests, adjudicators must possess the means to gather and understand the factual context of each dispute, irrespective of its nature, longevity or location. It seems vital, therefore, that any efforts to improve the use of expert evidence in international litigation must retain or preserve the flexibility that is central to the character and conduct of existing systems of dispute settlement. However, considering some of the proposals that have been made or the options that are presently available for bettering the handling of expert evidence, it appears that some of them—such as revision of mandatory rules of procedure or creation of optional codes of conduct—are unlikely to be suitable or successful when it comes to making changes that improve the use of expert evidence while also guaranteeing the freedom in fact-finding, which is very important for international systems of dispute settlement. 2. FIRST REFORM OPTION: REVISION OF RULES OF EVIDENCE AND PROCEDURE The first reform option calls for international tribunals to revise their own rules of evidence and procedure to incorporate a more detailed set of standards to govern the production, handling and evaluation of expert input. This proposal reflects a common perception that the existing rules of evidence are inadequate or under-developed,13 as it is tempting to think that the appropriate remedy for this deficiency is to introduce additional rules.14 However, there are two reasons to doubt whether such an initiative would succeed in improving the contemporary approach to expert evidence. First, it is unrealistic to expect that major changes would be made to the rules of evidence currently applicable before international courts and tribunals. International courts and tribunals have adopted a mostly conservative approach to procedural reform in the past, as the 1978 revision by the International Court of Justice (ICJ) of its Rules of Court demonstrates, and it is difficult to envisage that judges and arbitrators today would seek to introduce a more rigid or restrictive system to control the use of experts that while doing so would curtail the freedom of sovereign litigants to plead and prove their case as they see fit and unsettle the flexible character with which these bodies were constituted.15 Secondly, it is questionable whether the problematic aspects of the contemporary use of expert evidence are attributable to the way in which the rules are currently formulated. Many observers complain that the powers which are already available under the existing rules are not being used effectively to manage the production and assessment of expert evidence. According to this perspective, it is more important that courts change the way they operate within the extremely broad parameters of the existing rules rather than changing those rules themselves. In particular, commentators often call upon international courts and tribunals to be less passive in their approach to expert evidence, and to appoint experts of their own or to undertake their own questioning of the party-appointed experts in order to produce a reliable understanding of the complex facts at issue.16 For these reasons, it seems unlikely that a formal revision of the applicable rules in each court and tribunal would improve appreciably the use of expert evidence in international dispute settlement. 3. SECOND REFORM OPTION: DEVELOPMENT OF CODES OF PRACTICE Another proposal would seek to shape practice by devising a code of practice which might encourage parties to adopt certain practices when litigating disputes requiring expert input before an international tribunal.17 Because this initiative would not be compulsory, a more detailed and more tightly controlled procedure could be proposed, but, as with any voluntary code, the efficacy of the initiative would of course depend on its popularity with litigants. Some parties will always prefer to retain as much flexibility as possible in the conduct of their proceedings, while others might be encouraged to adopt such a code if examples of its usage demonstrate that it offers an effective and efficient method for utilizing expert input. But such an approach which relies upon ad hoc adoption by the parties is unlikely to produce consistent or far-reaching improvement in the general practice of international courts and tribunals. After all, the history of international dispute settlement is replete with examples of procedures or powers which have been made available to states but which have never, or only seldom, been put to use.18 Having said that, these standards might well inspire courts and tribunals to adopt a similar approach in self-handling and assessment of expert evidence.19 4. THIRD REFORM OPTION: INCREMENTAL IMPROVEMENT THROUGH CASE LAW The final method for improving the use of expert evidence is a court-led process of ongoing review and refinement through practice. In other words, the final option is to allow international courts and tribunals to undertake incremental reform of their handling and evaluation of expert evidence in the course of adjudicating each matter that comes before them. Under this model, improvements might be achieved if international courts provide detailed explanations both of the manner in which expert evidence has been produced during the proceedings and of the value which has been attached to that evidence by the court in arriving at its ultimate decision. Of course, this option represents in essence a continuation of the status quo insofar as it is already the case that the procedural law of international dispute settlement is largely developed through the reasoned decision-making of international courts and tribunals. Adjudicators, while not formally bound to adhere to past practice, generally follow the example set by their predecessors on matters of procedure and evidence. However, therein lies a significant part of the problem: when it comes to matters of evidence and fact-finding, international courts and tribunals have tended not to explain their approach with clarity or detail, and they have, as a result, been criticized by numerous observers for the vagueness and obscurity which surrounds their fact-finding practice.20 In fact, the most notorious example of international tribunals’ evasiveness and opacity in respect of their fact-finding specifically concerns expert evidence: that is, the dubious practice of certain tribunals appointing their own experts to assist their deliberations without consulting—or even informing—the parties involved in the proceedings, the so-called ‘phantom experts’.21 The revelation of this practice shows that international courts and tribunals have all too often failed to provide the transparency upon which the practice-led model of procedural reform relies. Consequently, if a process of judicial review and refinement is to have any prospect of improving the use of expert evidence, a small but significant shift in attitude is required on the part of international adjudicators. In particular, tribunals will need to demonstrate a firm and unflinching commitment to transparency and specificity when making procedural determinations and findings of fact. Courts can meet this challenge by ensuring that they provide, in as complete and detailed manner as possible, an account of the process by which expert evidence was admitted and examined during the proceedings, together with a comprehensive explanation of the value which has been attached to this evidence by the court when making its final decision.22 International tribunals may also respond to this call for greater transparency by offering guidance as to their procedural preferences in the form of practice directions or other non-binding recommendations. These documents are helpful for future litigants, and for other international adjudicators, as they provide a glimpse into the thinking of a particular court, while allowing that body, freed of the discipline generated by the need to decide a matter with binding effect upon the parties, to articulate their views concerning the utility and suitability of certain evidentiary practices. In this way, practice directions are useful resources for communicating the court’s attitude on points of evidence and procedure to a broader audience of potential litigants and other courts and tribunals. While the shift in approach required to uphold the goal of transparency in the treatment of expert evidence would only be small, the positive effects which can be expected to follow such a change would be significant. For a start, it would go a long way towards meeting the criticism that international tribunals have been unhelpfully vague, opaque and even diffident in their engagement with and evaluation of expert evidence.23 In addition, it would bolster the fairness of international dispute settlement processes by ensuring that the parties are fully apprised of the procedures followed by the court and, ideally, given the opportunity to comment on those procedures and the information produced thereby. Moreover, demonstrating a strong and consistent commitment to transparency in evidentiary matters would enhance the legitimacy of international tribunals’ decision-making, as it would provide a firmer basis for understanding the binding judgment rendered in a particular case, and so would help to dispel any impression of arbitrariness which might emerge when decision-makers’ practices are obscure. This court-led model of incremental reform through practice would by no means be perfect—it is typically a slow process, subject to variability on account of the changing personnel in the international judiciary, and it admits the risk that a jumbled set of procedural principles may be developed through piecemeal practice—but it allows room for new techniques (such as expert witness conferencing or ‘hot tubbing’) to be tried and, if successful, to be employed in subsequent cases, either as an alternative or a supplement to more common methods of presenting and testing expert evidence. While providing a mechanism for effecting change, this model would also preserve flexibility, both for courts and litigating parties, as any practices that are considered to be inappropriate in the context of a specific case might be eschewed. It would also preserve the integrity of the judicial and arbitral function, by ensuring that judges and arbitrators ultimately retain the competence to control the process by which expert evidence is adduced and to decide the ultimate value of that evidence, without delegating authority unduly to the experts involved in the proceedings. 5. SIGNS OF IMPROVEMENT? There are indications in recent practice that international courts and tribunals are already taking steps to improve their handling of expert evidence. Taking the ICJ as an example, there are positive signals in the recent case law which suggest that the Court is dealing with the production and testing of expert evidence in a more assured and definite fashion. In Pulp Mills, the ICJ expressed its clear preference that persons providing evidence based on their scientific or technical knowledge ‘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’,24 while Judges Al-Khasawneh and Simma confronted and criticized directly the past use of phantom experts by the Court, in addition to citing examples of best practice by other tribunals as inspiration for the Court’s handling of expert inputs in the future.25 In the Whaling in the Antarctic case, the ICJ adopted a more muscular approach to the production and examination of expert evidence, overseeing a relatively vigorous and thorough process of cross-examination of party-appointed experts during the oral pleadings, as well as asking questions of those experts themselves. The Court’s judgment provided a new level of detail while analysing the expert evidence, suggesting that the ICJ is increasingly aware of the need for transparency, and the ICJ took pains to distinguish the factual conclusions provided by the parties’ experts based on their scientific expertise from the legal conclusions provided by the Court based on its interpretation of the applicable treaty text.26 In Nicaragua v Colombia, the ICJ rejected the conclusion reached by an expert appointed by Colombia on the basis that it was inaccurate in the specific context at hand.27 And most recently in Costa Rica v Nicaragua, the Court declined to appoint a neutral expert, as requested by Nicaragua but opposed by Costa Rica, but it did engage in discussion with the parties as to the appropriate modalities for examining the witnesses they each presented, and it ultimately made a robust, critical assessment of the expert evidence. It expressed doubts about the expert evidence produced by Costa Rica because it queried the reliability of the methodology which it used, and it eschewed the estimates of environmental damage provided by the Nicaraguan expert because the Court considered that they were not substantiated by empirical data.28 As this very brief survey of the recent practice indicates, the ICJ appears to be aware of the need to improve the handling of expert evidence, and is taking the opportunity, however gradually, to develop a more detailed and transparent approach to the handling and assessment of expert evidence. While many issues remain to be clarified, not least the method of appointment of experts,29 and the form of cross-examination procedures,30 the ICJ’s approach to expert evidence is, perhaps belatedly, becoming more sophisticated and certain, a trend which is also discernible in the practice of other tribunals.31 It is to be hoped that, when embarking on this process of review and reform, international courts pay heed not only to their own analyses of deficiencies and to the views of the parties appearing before them, but also to observers who may identify unintended consequences and analyse unforeseen implications, and to other ICTs. This is a conversation in which all actors with an interest in the effectiveness and legitimacy of international dispute settlement may, and should, participate. Footnotes 1 Eg J Devaney, Fact-Finding before the International Court of Justice (CUP 2017); L Malintoppi, ‘Fact-Finding and Evidence before the International Court of Justice (Notably in Scientific-Related Disputes)’ (2016) 7 JIDS 421; G Marceau and J Hawkins, ‘Experts in WTO Dispute Settlement’ (2012) 3 JIDS 493; C Foster, Science and the Precautionary Principle in International Courts and Tribunals (CUP 2011); A Riddell and B Plant, Evidence before the International Court of Justice (BIICL 2009); C Romano, ‘The Role of Experts in International Adjudication’ in Le droit international face aux défis environmentaux (SFDI/Pedone 2009), J Pauwelyn, ‘The Use of Experts in WTO Dispute Settlement’ (2002) 51 ICLQ 325. 2 Eg Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica vNicaragua), Judgment on Compensation, Dissenting Opinion of Judge ad hoc Dugard, International Court of Justice, 2 February 2018, paras 22–28 (not yet reported); Pulp Mills on the River Uruguay (Argentina vUruguay), Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, ICJ Rep 2010, 109–17, paras 3–17, and Dissenting Opinion of Judge ad hoc Vinuesa, 284–85, paras 70–72. See also US/Canada – Continued Suspension of Obligations in the EC–Hormones Dispute, WTO Appellate Body Report, WT/DS321/AB/R, paras 433ff. 3 S Rosenne, ‘Some Reflections on the 1978 Revised Rules of the International Court of Justice’ (1981) 19 Columbia J Transnat L 235. 4 C Amerasinghe, Evidence in International Litigation (Martinus Nijhoff 2005) 148, 164, 209–10. 5 The distinction between procedural and substantive issues does not apply readily in international dispute settlement: MN Shaw, Rosenne’s Law and Practice of the International Court: 1920–2015 (5th edn, Brill 2016) vol 3, para 254. See also ibid 43. 6 The fact-finding powers of the respective international courts and tribunals are provided in the following instruments: ICJ—Statute of the International Court of Justice, arts 43–54, ICJ Rules of Court (1978), arts 9, 44–72, 101; ITLOS—Statute of the International Tribunal for the Law of the Sea, arts 16, 26–28, ITLOS Rules of the Tribunal, arts 15, 44–84 (especially 76–84); WTO—Understanding on Rules and Procedures Governing the Settlement of Disputes, arts 11–13, apps 3 and 4; Permanent Court of Arbitration—Arbitration Rules 2012, arts 17, 27–9; Iran–US Claims Tribunal, Rules of Procedure, arts 15, 25, 27. 7 See Riddell and Plant (n 1) chs 2 and 3 and G White, The Use of Experts by International Tribunals (Syracuse University Press 1965) 15–33. 8 ICJ—Statute, arts 43, 50–51, Rules of Court, arts 58, 62–70; ITLOS—Rules of the Tribunal, arts 15, 44, 72–80, 82–84; WTO—DSU, art 13, app 4; PCA—Arbitration Rules, arts 17, 27–29; Iran–US Claims Tribunal, Rules of Procedure, arts 15, 25, 27. 9 H Lauterpacht, The Development of International Law by the International Court (Stevens & Sons 1958) 366. 10 D Sandifer, Evidence before International Tribunals (University Press of Virginia 1975) 3–4. 11 Case of the Free Zones of Upper Savoy and the District of Gex, PCIJ Rep, No 46, Series A/B, 7 June 1932, 155. 12 The expansion of international law in recent decades has been well documented; see eg MN Shaw, International Law (8th edn, CUP 2018) 1–50; J Crawford, ‘Chance, Order, Change: The Course of International Law’ (2013) 365 Recueil des Cours 9, 137–252; S Sur, ‘La créativité du droit international’ (2013) 363 Recueil des Cours 9, 309–31; A Boyle and C Chinkin, The Making of International Law (OUP 2007) 1–40; A Peters, ‘The Growth of International Law between Globalization and the Great Power’ (2005) 8 ARIEL 109; P-M Dupuy, ‘L’unité de l’ordre juridique international: course general de droit international’ (2000) 297 Recueil des Cours 1, 25–42. 13 See Case Concerning Oil Platforms, Separate Opinion of Judge Owada, ICJ Rep 2003, 322, para 52 and Case Concerning Gabčíkovo–Nagymaros Project, Separate Opinion of Vice-President Weeramantry, ICJ Rep 1997, 118. 14 Peat, for example, proposes revising the rules to introduce a pre-trial screening procedure to ensure that only expert input which is truly necessary to ascertaining the relevant facts would be permitted to participate in the proceedings: D Peat, ‘The Use of Court-Appointed Experts by the International Court of Justice’ (2014) 84 BYIL 271. 15 When the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules were modified in 2010, the changes seemed to enhance the flexibility afforded to parties, as specific provisions were inserted to clarify that evidence from party-appointed experts could be produced in arbitrations conducted under these Rules. 16 D Joyce, ‘Fact-Finding and Evidence at the International Court of Justice: Systemic Crisis, Change, or More of the Same?’ (2007) 18 FinnishYIL 283, 285–88; C Thomas, ‘Of Facts and Phantoms: Economics, Epistemic Legitimacy and WTO Dispute Settlement’ (2011) 14 JIEL 295, 321–22; Pauwelyn (n 1) 339–40; P Okowa, ‘Environmental Dispute Settlement: Some Reflections on Recent Developments’ in M Evans (ed), Remedies in International Law (Hart 1998) 157, 167; T Scovazzi, ‘Between Law and Science: Some Considerations Inspired by the Whaling in the Antarctic Judgment’ (2015) 14 Questions of International Law Zoom-in 13. 17 C Brower, ‘Evidence before International Tribunals: The Need for Some Standard Rules’ (1994) 28 (1) International Lawyer 47, 58. For examples of voluntary codes, see, in the field of international commercial arbitration, the Chartered Institute of Arbitrators’ Protocol for the Use of Party Appointed Expert Witnesses in International Arbitration 2007 or the Permanent Court of Arbitration’s Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment 2001. 18 The ICJ has never exercised its power under art 38 of the Statute to decide a case ex aequo et bono, having never been requested by any states to do so. Additionally, no state ever requested to have its case dealt with by the ICJ’s Chamber for Environmental Matters, prompting the Court to discontinue that Chamber in 2006. Similarly, only one of the five Special Chambers which are available to states under the ITLOS Statute has ever been requested to hear a dispute. (The Chamber of Summary Procedure, the Chamber for Fisheries Dispute, the Chamber for Marine Environment Disputes and the Chamber for Maritime Delimitation Disputes have not been used. The Seabed Disputes Chamber has only been requested to give an Advisory Opinion, while Special Chambers to hear particular disputes under art 15, para 2 of the Statute have twice been formed on the request of the parties.) 19 Judge Donoghue refers, in specific relation to witness statements, to the IBA Rules on the Taking of Evidence in International Arbitration 2010 in her Declaration in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment of 3 February 2015, ICJ Rep 2015, 391, paras 4–6. 20 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment of 3 February 2015, Declaration of Judge Donoghue, 390–2, paras 3–4, 9; Malintoppi (n 1) 444; Thomas (n 16) 309. 21 Pulp Mills, Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, 114, para 14. See Riddell and Plant (n 1) 336–39, Thomas, ibid, 308–12; P Couvreur, ‘Le règlement jurisdictionnel’ in Société française pour le droit international (ed), Le processus de délimitation maritime (Pedone 2004) 349, 384. 22 Especially laudable in this regard is the example provided by WTO panels in annexing to their reports a statement of the working procedures followed when consulting with the experts and transcripts of those meetings: see eg Australia – Measures Affecting the Importation of Apples from New Zealand, Panel Report, WT/DS367/R, 9 August 2010, Annexes A-3 and B. Devaney calls upon the ICJ to develop a ‘clear strategy’ to deal with experts: See (n 1) 217. 23 Devaney (n 1) 73–126; Riddell and Plant (n 1) 69–75 and references therein. 24 Pulp Mills, Judgment, 72, para 167. 25 Pulp Mills, Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, 114–6, paras 14–16. 26 Whaling in the Antarctic (Australia v Japan: New Zealand Intervening), Judgment, ICJ Rep 2014, 226, 257, para 82, 27 Case Concerning the Territorial and Maritime Dispute (Nicaragua vColombia), Judgment, ICJ Rep 2012, 624, 644–45, paras 36–38. 28 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica vNicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua vCosta Rica), Judgment, ICJ Rep 2015, 665, 733, para 203. 29 M Mbengue, ‘Scientific Fact-Finding at the International Court of Justice: An Appraisal in the Aftermath of the Whaling Case’ (2016) 29 Leiden JIL 529, 543–46. 30 Devaney (n 1) 229. 31 Inter alia, see the use of tribunal-appointed experts in two recent cases brought before arbitral tribunals in accordance with Annex VII of the UN Convention on the Law of the Sea: the South China Sea Arbitration (Republic of Philippines v People’s Republic of China), Award, 12 July 2016, PCA Case 2013–19, 18–19, 29–38, 429–31 and Delimitation of the Maritime Boundary between Guyana and Suriname, Award, 17 September 2007, 30 RIAA 1, 17–31, app. The Tribunal in the Abyei Arbitration, operating under the PCA’s Optional Rules for Arbitrating Disputes between Two Parties of Which Only One is a State, also had recourse to a tribunal-appointed expert: Final Award, 22 July 2009, 19–20. For a comparative review of various international tribunals’ recent practice concerning expert evidence, see Foster (n 1) 77–182 and Devaney (n 1) 130–78. © 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)

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Journal of International Dispute SettlementOxford University Press

Published: May 3, 2018

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