Parties’ Engagement with Experts in International Litigation

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

Parties’ Engagement with Experts in International Litigation

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Abstract

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

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