Symposium—The Expert in the International Adjudicative Process: Concluding Observations

Symposium—The Expert in the International Adjudicative Process: Concluding Observations Abstract These concluding observations will be short, because everybody has already made their own conclusions. So, this is merely a ‘conclusion of the conclusions’. Moreover, if I may make some short comments, I think I have definitively no specific ideas about the question of expertise, just some ‘feelings’. My comments are not far from the titles of the panels, but not exactly so. In fact, the questions I try to answer are more simple. 1. WHO IS AN EXPERT? Confusion still exists regarding what is a witness, a counsel, an adjudicator or an assessor, a party-appointed or a tribunal-appointed expert, etc. The ‘Phantom – or Ghost – Expert’, is perhaps the most interesting category because, in theory, it does not exist. Moreover, the expert does not represent a specific category but is at the crossroads of several categories of third parties in the proceedings. But he is not a judge, and the judge must not be an expert. This is the only limit on the expert’s role. I remember at a symposium in 2009 in Geneva,1 there was a discussion on testimony from witnesses at the International Criminal Tribunal for Rwanda, indicating that although they arrived as witnesses, they were virtually considered as experts by the prosecutor because they brought evidence, but also as potentially guilty by the defence counsel who conducted the famous ‘cross-examination’. Finally, ubiquity is the first characteristic of the parties at the trial. Even then, for experts, the components of what an expert is supposed to be are less important than what he is not supposed to be. So, when we try to quantify experts, their weight and their influence, it just reminds me of the American behaviourist tendency where reflection is replaced by statistics. 2. WHO IS AN EXPERT FOR A TRIBUNAL? Whether experts are useful or not, it depends on the debate we have about Tribunals. We spoke of the International Court of Justice (ICJ), of the WTO, the International Tribunal for the Law of the Sea, arbitrations, etc., sometimes with a lot of technical detail. Perhaps some speakers from the International Criminal Tribunals would be useful too, because experts are very important in this field. Before the ICJ, the use of experts should remain an exception because the best expert is the judge himself, at least according to the judge. Nevertheless, the feeling is that the ICJ applies the old theory of the ‘acte clair’ of French administrative law (from the Conseil d'Etat, the highest administrative tribunal in France). The judge used to refer an interpretation to the government if he thought a legal provision in an administrative act was unclear, but in reality he did not always refer it, even if the provision was really unclear. And, for the ICJ, it seems we have a similar situation—mutatis mutandis—it could be the same problem if the result of the expertise is the opposite of what the Court wants. So, the Court says, ‘there is no need for an expertise’ (emphasis added), even if it is not true, but the Court prefers a solution that is perfectly legally justified but perhaps not applicable concretely, rather than being certain of it by calling experts, or even playing the role of an expert with a site visit (‘descente sur les lieux’). I think this was the situation for the case of the interpretation of the old case of the Temple of Préah-Vihéar.2 But eventually, in this case, the Court’s solution was based on expertise provided at the time of the original judgment. For other tribunals, experts are useful, especially to understand domestic law (perhaps the only acceptable legal expertise), but if the international judge needs an expert in domestic law, we would sometimes like, at least in France, that the domestic judge uses experts explaining to him international law. 3. HOW USEFUL IS AN EXPERT FOR A TRIBUNAL? To my mind, it is clear that expertise is sometimes not only useful, but that it is impossible for the judge to decide without experts in some cases. The adversarial position of the experts would be likely to lead to a compromise in the minds of the judges. It is transactional justice, and it is probably possible in the economic field and others. But the transaction is not always possible. In France (and I am sorry for this French example one more time), we had a famous case: the Lambert Case.3 This case involved a person in a coma as a result of an accident. Depending on the opinions, there may or may not have been hope that he would wake up from the coma. For the judges, the problem was simple and terribly complex at the same time. Should he be disconnected or not? Without any medical expertise, there is no means of deciding. But with a controversial expert opinion, it is not possible to decide either. From this point of view, of course some technical problems arise, but I am not sure that we should go so far as to speak of epistemology for the question of the judicial evaluation of the evidence provided by the experts. Epistemology concerns paradigm shifts and we are in a more modest setting. But it does not matter because the only question is: Do we need legal criteria to handle scientific categories? Perhaps, but we will then be in an infinite loop of technical deconstruction with limitless boundaries. Personally, I am interested in the Basel agreements on the prudential supervision of banks, but I am absolutely unable to understand certain parts of these agreements that are in the form of econometric equations. How can a judge—learned solely in the law—understand without the help of a pedagogical expertise? It brings us more seriously to a key question: the limit of the judge's understanding of more and more technical issues in which only the expert is competent, but not more. After a certain point, the judge has to decide. The question is therefore to bring the technical framework back to the legal aspects that are understandable to the judge so as to not allow the expert to decide instead of the judge. 4. THE LIMITS OF A TECHNICAL APPROACH AND THE NECESSITY OF GOING BACK TO FUNDAMENTAL VALUES The first value is the question of independence and impartiality. The expert must have two qualities which are difficult to find together: he must be both a good technician and someone trustworthy. Of course, the two criteria may not necessarily be met. These criteria include independence, impartiality, probity, neutrality, credibility, etc. I suppose the opposite would be disturbing. For me, I am sorry to say, it is a kind of language of ‘New Public Management’, which also includes transparency, accountability, governance, etc. In this respect, it is hardly possible to go beyond what is already prescribed to the judges, that is to say, the objective guarantees of independence can be verified, while impartiality continues to be complicated. No one is impartial because of his culture, education, opinion, if that means ‘Does not have a specific inclination towards a party’. So what? As I said, the opposite would be disturbing. For a tribunal, collegiality reintroduces impartiality by the neutralization of ‘subjective’ individuals. For an expertise, it is necessary to mobilize many contradictory factors to successfully complete it, to result in the cross-fertilization of influences, and thus to balance the opinions according to the judge. Instinctively, there is a tendency to think that not all the situations can be put into a framework. And even if it were possible, would it be desirable? The basic principles can of course be common, but are they legal? Or rather just common sense? Is a reform possible or suitable in all cases? Everyone will argue about the peculiarities of their own interest group. Common principles remain; they are certainly general ones, but they are nevertheless the best safeguards. 5. CONCLUSION OF THE CONCLUSION 1 - I still have some doubts about the tendency to improve the rules of law just because we disagree on its values. I think that there are two elements of values: it depends on your culture (civil law or common law—the two main systems), and it depends on your feeling about what the law is according to you. 2 - The problem is perhaps less the role of the expert than the one we want the judge to play: is he omniscient? He is only a human being subjected to technical data elusive to him, and he is only a human being subjected to his own (inevitable) convictions and weaknesses (which are human too). As you understand, I am inclined towards the imperfection of the human mind, but also inclined to disagree that technical details subordinate the judge to a traced path from which he cannot extricate himself. If the expert intrudes on every aspect of the dispute, then the judge could end up acting only as a software. 3 - The impression is that the chain is endless: we must evaluate the evidence, and we must evaluate the evaluator, and also evaluate the way the judge evaluates the evaluator. I am afraid that all these will lead us into a kind of paranoia, which is already obvious in the evolution of the judicial process, whether domestic or international. 4 - The balance to be attained is between either the confidence in the expert (which is not always a choice, but often an obligation), along with the dangers that it entails, and increase in the procedural safeguards to control them, which are also increasing constantly. 5 – The only truth is that absolute truth cannot be reached, and that the human ‘machine’ will always be subject to mistakes. One can try to approach the truth, but the truth itself, in the form of pseudo-perfection, is a lure of the mind. 6 - Finally, one could almost say that visions of expertise are passing trends, varying perhaps according to culture, and with evolution in the careers of academics: the doctoral student wants to increase the procedures because he fears conflicts of interest (and this is not wrong in itself). The ‘experienced’ professor is tired of the proliferation of procedures in a society of distrust and he wants to regain confidence, a mark of human condition, even if it means taking some risks. In my opinion, this is the only real cornerstone. Footnotes 1 TPIR : Modèle ou contre-modèle pour la justice pénale internationale ? Le point de vue des acteurs. <http://genevaconference-tpir.univ-paris1.fr> 2 Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v Thailand), Judgment [2013] ICJ Rep 281. 3 Conseil d’Etat, 24 June 2014, n°375081, 375090, 375091; Conseil d’Etat, 19 July 2017, n°402472,403377. <www.conseil-etat.fr.> © 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

Symposium—The Expert in the International Adjudicative Process: Concluding Observations

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Abstract

Abstract These concluding observations will be short, because everybody has already made their own conclusions. So, this is merely a ‘conclusion of the conclusions’. Moreover, if I may make some short comments, I think I have definitively no specific ideas about the question of expertise, just some ‘feelings’. My comments are not far from the titles of the panels, but not exactly so. In fact, the questions I try to answer are more simple. 1. WHO IS AN EXPERT? Confusion still exists regarding what is a witness, a counsel, an adjudicator or an assessor, a party-appointed or a tribunal-appointed expert, etc. The ‘Phantom – or Ghost – Expert’, is perhaps the most interesting category because, in theory, it does not exist. Moreover, the expert does not represent a specific category but is at the crossroads of several categories of third parties in the proceedings. But he is not a judge, and the judge must not be an expert. This is the only limit on the expert’s role. I remember at a symposium in 2009 in Geneva,1 there was a discussion on testimony from witnesses at the International Criminal Tribunal for Rwanda, indicating that although they arrived as witnesses, they were virtually considered as experts by the prosecutor because they brought evidence, but also as potentially guilty by the defence counsel who conducted the famous ‘cross-examination’. Finally, ubiquity is the first characteristic of the parties at the trial. Even then, for experts, the components of what an expert is supposed to be are less important than what he is not supposed to be. So, when we try to quantify experts, their weight and their influence, it just reminds me of the American behaviourist tendency where reflection is replaced by statistics. 2. WHO IS AN EXPERT FOR A TRIBUNAL? Whether experts are useful or not, it depends on the debate we have about Tribunals. We spoke of the International Court of Justice (ICJ), of the WTO, the International Tribunal for the Law of the Sea, arbitrations, etc., sometimes with a lot of technical detail. Perhaps some speakers from the International Criminal Tribunals would be useful too, because experts are very important in this field. Before the ICJ, the use of experts should remain an exception because the best expert is the judge himself, at least according to the judge. Nevertheless, the feeling is that the ICJ applies the old theory of the ‘acte clair’ of French administrative law (from the Conseil d'Etat, the highest administrative tribunal in France). The judge used to refer an interpretation to the government if he thought a legal provision in an administrative act was unclear, but in reality he did not always refer it, even if the provision was really unclear. And, for the ICJ, it seems we have a similar situation—mutatis mutandis—it could be the same problem if the result of the expertise is the opposite of what the Court wants. So, the Court says, ‘there is no need for an expertise’ (emphasis added), even if it is not true, but the Court prefers a solution that is perfectly legally justified but perhaps not applicable concretely, rather than being certain of it by calling experts, or even playing the role of an expert with a site visit (‘descente sur les lieux’). I think this was the situation for the case of the interpretation of the old case of the Temple of Préah-Vihéar.2 But eventually, in this case, the Court’s solution was based on expertise provided at the time of the original judgment. For other tribunals, experts are useful, especially to understand domestic law (perhaps the only acceptable legal expertise), but if the international judge needs an expert in domestic law, we would sometimes like, at least in France, that the domestic judge uses experts explaining to him international law. 3. HOW USEFUL IS AN EXPERT FOR A TRIBUNAL? To my mind, it is clear that expertise is sometimes not only useful, but that it is impossible for the judge to decide without experts in some cases. The adversarial position of the experts would be likely to lead to a compromise in the minds of the judges. It is transactional justice, and it is probably possible in the economic field and others. But the transaction is not always possible. In France (and I am sorry for this French example one more time), we had a famous case: the Lambert Case.3 This case involved a person in a coma as a result of an accident. Depending on the opinions, there may or may not have been hope that he would wake up from the coma. For the judges, the problem was simple and terribly complex at the same time. Should he be disconnected or not? Without any medical expertise, there is no means of deciding. But with a controversial expert opinion, it is not possible to decide either. From this point of view, of course some technical problems arise, but I am not sure that we should go so far as to speak of epistemology for the question of the judicial evaluation of the evidence provided by the experts. Epistemology concerns paradigm shifts and we are in a more modest setting. But it does not matter because the only question is: Do we need legal criteria to handle scientific categories? Perhaps, but we will then be in an infinite loop of technical deconstruction with limitless boundaries. Personally, I am interested in the Basel agreements on the prudential supervision of banks, but I am absolutely unable to understand certain parts of these agreements that are in the form of econometric equations. How can a judge—learned solely in the law—understand without the help of a pedagogical expertise? It brings us more seriously to a key question: the limit of the judge's understanding of more and more technical issues in which only the expert is competent, but not more. After a certain point, the judge has to decide. The question is therefore to bring the technical framework back to the legal aspects that are understandable to the judge so as to not allow the expert to decide instead of the judge. 4. THE LIMITS OF A TECHNICAL APPROACH AND THE NECESSITY OF GOING BACK TO FUNDAMENTAL VALUES The first value is the question of independence and impartiality. The expert must have two qualities which are difficult to find together: he must be both a good technician and someone trustworthy. Of course, the two criteria may not necessarily be met. These criteria include independence, impartiality, probity, neutrality, credibility, etc. I suppose the opposite would be disturbing. For me, I am sorry to say, it is a kind of language of ‘New Public Management’, which also includes transparency, accountability, governance, etc. In this respect, it is hardly possible to go beyond what is already prescribed to the judges, that is to say, the objective guarantees of independence can be verified, while impartiality continues to be complicated. No one is impartial because of his culture, education, opinion, if that means ‘Does not have a specific inclination towards a party’. So what? As I said, the opposite would be disturbing. For a tribunal, collegiality reintroduces impartiality by the neutralization of ‘subjective’ individuals. For an expertise, it is necessary to mobilize many contradictory factors to successfully complete it, to result in the cross-fertilization of influences, and thus to balance the opinions according to the judge. Instinctively, there is a tendency to think that not all the situations can be put into a framework. And even if it were possible, would it be desirable? The basic principles can of course be common, but are they legal? Or rather just common sense? Is a reform possible or suitable in all cases? Everyone will argue about the peculiarities of their own interest group. Common principles remain; they are certainly general ones, but they are nevertheless the best safeguards. 5. CONCLUSION OF THE CONCLUSION 1 - I still have some doubts about the tendency to improve the rules of law just because we disagree on its values. I think that there are two elements of values: it depends on your culture (civil law or common law—the two main systems), and it depends on your feeling about what the law is according to you. 2 - The problem is perhaps less the role of the expert than the one we want the judge to play: is he omniscient? He is only a human being subjected to technical data elusive to him, and he is only a human being subjected to his own (inevitable) convictions and weaknesses (which are human too). As you understand, I am inclined towards the imperfection of the human mind, but also inclined to disagree that technical details subordinate the judge to a traced path from which he cannot extricate himself. If the expert intrudes on every aspect of the dispute, then the judge could end up acting only as a software. 3 - The impression is that the chain is endless: we must evaluate the evidence, and we must evaluate the evaluator, and also evaluate the way the judge evaluates the evaluator. I am afraid that all these will lead us into a kind of paranoia, which is already obvious in the evolution of the judicial process, whether domestic or international. 4 - The balance to be attained is between either the confidence in the expert (which is not always a choice, but often an obligation), along with the dangers that it entails, and increase in the procedural safeguards to control them, which are also increasing constantly. 5 – The only truth is that absolute truth cannot be reached, and that the human ‘machine’ will always be subject to mistakes. One can try to approach the truth, but the truth itself, in the form of pseudo-perfection, is a lure of the mind. 6 - Finally, one could almost say that visions of expertise are passing trends, varying perhaps according to culture, and with evolution in the careers of academics: the doctoral student wants to increase the procedures because he fears conflicts of interest (and this is not wrong in itself). The ‘experienced’ professor is tired of the proliferation of procedures in a society of distrust and he wants to regain confidence, a mark of human condition, even if it means taking some risks. In my opinion, this is the only real cornerstone. Footnotes 1 TPIR : Modèle ou contre-modèle pour la justice pénale internationale ? Le point de vue des acteurs. <http://genevaconference-tpir.univ-paris1.fr> 2 Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v Thailand), Judgment [2013] ICJ Rep 281. 3 Conseil d’Etat, 24 June 2014, n°375081, 375090, 375091; Conseil d’Etat, 19 July 2017, n°402472,403377. <www.conseil-etat.fr.> © 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 25, 2018

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