Legal Basis and Procedures for Consulting with Experts and International Organizations in WTO Dispute Settlement

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

Legal Basis and Procedures for Consulting with Experts and International Organizations in WTO Dispute Settlement

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Abstract

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

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