The assessment of expert evidence in international adjudication

The assessment of expert evidence in international adjudication Abstract An assessment of the different contexts in which expert evidence in international adjudication, in particular in the settlement of disputes before the Court of Justice of the European Union (CJEU) and the World Trade Organization (WTO) dispute settlement system, may be used shows that the challenge lies in designing rules that are sufficiently permissive and flexible but nonetheless result in a more equitable, efficient and transparent method of submitting and assessing expert evidence. At the same time, the practice of and the rules governing the use of expert evidence before the CJEU and the WTO dispute settlement bodies suggest that a more calibrated treatment of court-appointed experts and party-appointed experts is required. 1. INTRODUCTION An assessment of the different purposes for which expert evidence in international adjudication may be used, in particular in the settlement of disputes before the CJEU (both the General Court and the Court of Justice) and the WTO dispute settlement system, presupposes that there is a common understanding of the meaning of an ‘expert’ and the applicable rules regarding the admissibility of evidence, the standard of proof and the standard of review in the relevant fora of dispute resolution.1 However, in international adjudication as it exists today this type of procedural rule remains underdeveloped. In the absence of such a procedural framework, an assessment of the (lack of) use of expert evidence therefore necessarily entails a degree of imprecision. In essence, rules regarding the admissibility of evidence, the standard of proof and the standard of review in the relevant fora of dispute resolution concern the value to be attached by an adjudicator, on whom jurisdiction has been conferred to resolve a dispute regarding the interpretation and application of law, to evidence. The focus of this article therefore is not on whether any value at all should be given to expert evidence. Other contributors to this issue of the Journal of International Dispute Settlement will address that matter in greater detail. My own view is that the use of expert evidence may be (very) valuable, provided that there is an accord on the essential procedural guarantees for the treatment of such evidence, including respect for due process. 2. GENERAL OBSERVATIONS ON THE FUNCTION(S) OF EXPERTS The practice of relying on expert evidence in international dispute settlement shows that such evidence may be used for different purposes, such as appraising factual assertions, identifying data, verifying the validity of a methodology or assessing opinions as regards such facts or methodologies. Discussions during the symposium on ‘The Expert in the International Adjudicative Process’, in which judges and counsel active in various dispute settlement fora took part, attested to that diversity.2 There is no generally applicable definition of experts. I would therefore submit that, for the purposes of this brief note, experts are in essence reputable, qualified, independent and objective individuals or organizations with a unique knowledge of facts falling within their expertise that are relevant to the resolution of a dispute before a court or tribunal. The evidence which they produce, whether in the form of written reports (whether or not produced for the specific purpose of being filed as evidence in judicial proceedings) and/or oral testimony, may be used by parties or be requested by courts or tribunals themselves. Experts can be used in international adjudication in order to appraise factual assertions (such as the assessment of municipal law or the evaluation of economic data) or identify data (such as the collection of import/export statistics). Where expert evidence is used to determine the existence of facts occurring or data produced outside of the control of the expert, it might suffice to rely on the original source of those facts or data, though an expert might assist in identifying the proper sources and offer additional support for a factual assertion.3 For example, the meaning of domestic law might be shown by relying on the text of the relevant legislation or legal instruments, evidence of the consistent application of such laws and the pronouncements of domestic courts on the meaning of such laws. A statement of an expert might summarize and collect all of these elements and/or add further interpretive arguments in support of one or the other meaning.4 The situation is quite different where the expert is the original source of facts in the sense that the expert observed, assessed and/or organized the facts in a particular manner. In those circumstances, the expert evidence might be essential to a party’s discharge of the burden of proof because no other source is available. Or expert evidence can be relied upon in support of the validity and general acceptance of using a particular (scientific) methodology and of the results of its application (for example, the merits of using one particular economic model as compared to another). The value of such expert evidence lies in the opinions or conclusions reached by the individual or organization authoring the expert statement, often regarding a certain fact or the application of a particular methodology applied to a defined set of facts. In such circumstances, the expert focuses primarily on the causes and consequences of relevant facts.5 Thus, experts can be used for different purposes in discharging the burden of proof of the party relying on expert evidence. Not all expert evidence will perform each and every one of those functions. That also implies that, in considering how expert evidence is to be assessed by international courts and tribunals, it is necessary to take into account the specific purposes for which the expert evidence is used, either by the party relying on that expert or the adjudicator deciding on the matter put before it in the light of the arguments and evidence presented to it. Therefore, the assessment of the use of expert evidence must take into account such contextualization and avoid studying expert evidence as being a monolithic category of evidence. In other words, the contribution of an expert in, for example, economics, national law, science, or other areas relevant to the fact-finding exercise or assessment of facts that is to occur before an international court or tribunal is not necessarily the same. At the same time, irrespective of the function of such evidence in a particular case, the use of expert evidence by one party will often prompt the other party to respond, in the absence of rules on the admissibility and value of expert evidence, by relying on its own expert. The alternative strategy might consist of challenging the reliability, independence and quality of the expert used by the other party, even if such challenges appear to be not that common. With that proliferation of expert evidence might come the risk of decreasing probative value and lower return in terms of the probative value which an adjudicator attaches to such statements.6 Faced with the risk of conflicting views of experts, an adjudicator should weigh the value of experts expressing different opinions as regards the same facts or methodology applied to those facts. However, in the absence of procedural rules, an adjudicator might also opt for an overall assessment of the entirety of the evidence and, in that manner, avoid taking a position on the probative value of specific expert evidence. Against that background, this article now turns to specific contexts in which experts may be used in WTO dispute settlement and in cases pending before the CJEU. 3. A COMPARISON OF THE USE OF EXPERTS IN WTO DISPUTE SETTLEMENT AND BY THE CJEU A. The contexts in which experts are used in WTO dispute settlement and by the CJEU In examining the role of expert evidence in the context of litigation before the CJEU and the WTO dispute settlement bodies, there appear to be at least three contexts in which expert evidence will be used. Firstly, expert evidence might be reviewed by a national authority or an EU institution in its assessment of the matter before it, followed by the review by the CJEU (possibly first by the General Court, followed by, in the event of an appeal, the Court of Justice) or a WTO panel of that authority’s decision and underlying assessment.7 Secondly, before the CJEU or a WTO panel, expert evidence might be presented to the CJEU or a WTO panel by one of the parties to the dispute (the so-called party-appointed experts), typically as part of their written pleadings. Thirdly, the CJEU or a WTO panel may decide to appoint one or more expert(s) in accordance with the procedural rules under which they operate.8 As regards, in particular, the WTO dispute settlement system, two other contexts in which experts may be used (but not necessarily in the form of expert evidence) might be added. Apart from the lawyers who are a part of the Legal Affairs Division (and serve a role similar to that of référendaires or legal secretaries in the CJEU), WTO panels may also be assisted by other members of the WTO Secretariat, such as economists or subject-matter experts in areas such as intellectual property rights protection and SPS protection, or by specialized expert bodies for which the WTO covered agreements provide.9 Their assistance might involve also assessing the expert evidence received by the panel, either on the panel’s initiative or submitted by the parties. In the CJEU, subject to the possibility of appointing an expert or obtaining (informally) the linguistic expertise of a lawyer-linguist working at the CJEU, there does not appear to be any possibility of having experts (in matters other than the task of interpreting and applying EU law) to assist the judges sitting in a chamber deciding a particular case. Other than the judges and the members of their individual chambers assisting them (that is, legal secretaries), there are no subject-matter experts. The procedural rules governing the CJEU do not provide for the possibility of chambers specialized in certain subject matters. Nor are there economists who are employed by the CJEU and available to assist judges in reviewing the evidence presented by the parties. At best, linguistic discrepancies in the texts of the treaties, legislation and other documents requiring interpretation and/or application might be resolved with the assistance of the large number of lawyer-linguists charged with the translation of judgments and opinions, applications, requests for a preliminary ruling and parties’ submissions. Thus, in the CJEU, the judges will assess independently detailed and often factual evidence, without the assistance of a so-called ‘in house’ expert. An additional context requiring attention in the WTO dispute settlement system is the possibility of having a party that does not participate in the proceedings (primarily because it has no standing) file an amicus curiae brief. The DSU neither prohibits nor expressly authorizes the submission of such briefs by, for example, industry associations, academics or non-governmental organizations. The Appellate Body has accepted that panels and the Appellate Body have the authority to accept amicus curiae briefs.10 In practice, where the Appellate Body accepts such briefs and their submission was timely, it does not consider it necessary to rely on them.11 Those briefs might have a particular legal content. However, there are no rules in the Understanding on Rules and Procedures Governing the Settlement of Disputes (‘DSU’) or the practice of WTO dispute settlement preventing that amicus curiae briefs have (at least in part) a content similar to that of a statement prepared by an expert. The CJEU may receive expert input indirectly but in a separate manner. Under the applicable rules, bodies, offices and agencies of the Union and any other person which can establish an interest in the result of a case submitted to the Court may, subject to certain conditions, intervene in cases before the Court. That right under Article 40 of the Statute of the Court of Justice (‘CJEU Statute’) therefore guarantees that bodies, offices and agencies with a particular expertise may file submissions. However, such an intervention is subject to more constraints compared to those that apply to filing an amicus curiae brief in WTO dispute settlement. Nonetheless, their participation in the process might render it less necessary to rely on external actors for expertise. B. Common Features of the Assessment of Expert Evidence While the procedural rules governing the use and assessment of evidence in proceedings before the CJEU and the WTO dispute settlement system are very different, they nonetheless share a few common features. Firstly, in general, there are few rules on the admissibility of evidence12 and, in particular, expert evidence. Nor is there detailed guidance as to the intensity of the review of evidence or to what is the relevant standard of proof, meaning the quantity and quality of evidence required in order for a party to discharge its burden of proof as regards a particular claim, defence or other argument. In the context of the WTO dispute settlement system, panels ‘should make an objective assessment of the matter before it, including an objective assessment of the facts of the case …’.13 However, in so doing, panels ‘enjoy a certain margin of discretion … in assessing the credibility and weight to be ascribed to a given piece of evidence’.14 They are to ‘… examine and consider all the evidence before it, not just the evidence submitted by one or the other party, and to evaluate the relevance and probative force of each piece thereof’.15 That requirement also means that ‘a panel has a duty … to evaluate the evidence in its totality, even if no piece of evidence is by itself determinative of an asserted fact or claim’.16 Exercise of the EU courts’ jurisdiction does not involve, in every case, an assessment of facts. In fact, a significant number of cases heard by, especially the Court of Justice, concern only questions of law (for example, appeals or requests for preliminary rulings). Where facts are at issue (such as in infringement proceedings), the EU courts might be asked to review the validity of an act of an EU institution involving or taken on the basis of an assessment of detailed facts and requiring a certain degree of expertise. In such circumstances, a degree of deference is shown to the assessment made by the institution. For example, in case of an EU institution having made a complex economic appraisal, the General Court has found that the EU courts’ ‘review of complex economic appraisals made by the Commission is necessarily limited to checking whether the relevant rules on procedure and on stating reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers’.17 The General Court has added that ‘while the [EU Courts] recognise that the Commission has a margin of appreciation in economic or technical matters, that does not mean that they must decline to review the Commission’s interpretation of economic or technical data’.18 Those courts ‘must not only establish whether the evidence put forward is factually accurate, reliable and consistent but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it’.19 Thus, first, similar to what is the case in other international (and regional) courts and tribunals, the CJEU and the WTO dispute settlement system are constrained by few rules in their treatment of evidence. The lack of guidance as to the standard of proof means also that parties, especially in WTO dispute settlement, continue, throughout the proceedings, to file evidence. Even if they have the burden of proof, they cannot know whether their evidence will be deemed inadequate in the light of a non-specified legal standard applied by panels. In the CJEU, there are fewer opportunities for filing evidence and (at least before the Court of Justice, as compared to the General Court) most types of procedure do not require that facts are shown because, for example, the Court of Justice is asked to deliver a preliminary ruling on an interpretative question or exercises appellate review. Secondly, unlike what is the case for party-appointed expert evidence, the rules governing proceedings before the WTO dispute settlement bodies and the CJEU lay down the conditions in which court-appointed experts may be used and the process for their appointment. In contrast, where panels or the CJEU review or simply rely on party-appointed expert evidence, no such detailed rules exist and there is often very little scrutiny of the qualities of the expert and of his opinion.20 In the WTO, the expert appointed by a panel must be ‘independent and impartial’, avoid ‘direct or indirect conflicts of interest’ and respect ‘the confidentiality of proceedings’ before the WTO dispute settlement bodies. Those standards of conduct are laid down in the Rules of Conduct for the Understanding on the Rules and Procedures Governing the Settlement of Disputes (Rules of Conduct).21 Pursuant to those Rules of Conduct, an expert ‘shall not incur any obligation or accept any benefit that would in any way interfere with, or which could give rise to, justifiable doubts as to the proper performance of that person’s dispute settlement duties’.22 Those rules apply to panellists, Appellate Body Members, arbitrators and experts appointed by a panel pursuant to specific provisions of the WTO covered agreements.23 Panels must also guarantee that, throughout the process of appointing and consulting experts, the fundamental guarantees of due process are respected (which include fairness and impartiality in the decision-making process).24 Failure to do so may result in a claim that the panel failed to make an objective assessment of the matter before it and therefore violated Article 11 of the DSU.25 In the context of the review of scientific evidence (used as a basis for SPS measures), the Appellate Body has emphasized that a panel must ‘verify that the scientific basis comes from a respected and qualified source’.26 That scientific basis, whilst not needing to represent the majority view within the scientific community, must ‘have the necessary scientific and methodological rigour to be considered reputable science’ and ‘the views must be considered to be legitimate science according to the standards of the relevant scientific community’.27 Furthermore, a panel is to assess ‘whether the reasoning articulated on the basis of the scientific evidence is objective and coherent’. That means that ‘a panel should review whether the particular conclusions drawn by the Member assessing the risk find sufficient support in the scientific evidence relied upon’ and ‘whether the results of the risk assessment “sufficiently warrant” the SPS measure at issue’.28 Finally, the Appellate Body has stressed that ‘a panel may not rely on the experts to go beyond its limited mandate of review’ and that ‘[t]he purpose of a panel consulting with experts is not to perform its own risk assessment’.29 Panels rarely engage in a similar examination of the impartiality and independence of a party-appointed expert. It would appear that panels will look into those qualities only in the event that the other party contests that the expert satisfies those conditions. Putting aside the question of whether the CJEU is more alike a (supra)national constitutional than an international court, the CJEU has probably the widest jurisdiction among existing international courts, in terms of subject matter, type of procedure and the identity of parties having standing to appear before it. Despite those features and the great number of cases heard by the EU courts, the CJEU does not appear to rely on expert evidence more than, for example, WTO panels. In accordance with Article 25 of the CJEU Statute, the CJEU may at any time ask any individual, body, authority, committee or other organization it chooses to give an expert opinion. Such an expert must take an oath, either in the form laid down in the Rules of Procedure30 or in the manner laid down by the law of the country of the expert.31 An expert may also be heard by the judicial authority of his place of permanent residence, if this is so ordered by the Court (for example, if the expert cannot appear before the Court).32 During the hearings, the Court may examine the experts themselves.33 The Court may prescribe measures of inquiry that it considers appropriate by means of an order setting out the facts to be proved. A measure of inquiry may be the commission of an expert’s report.34 The order appointing the expert is to define the task of the expert and set a time-limit for submitting the export report.35 After the report has been submitted and been served on the parties, Article 70(2) provides that ‘the Court may order that the expert be examined, the parties having been given notice to attend’. According to that same provision, the President of the Court may put questions to the expert, either at the request of one of the parties or of his own motion. The same right is granted to other Judges and the Advocate General.36 Representatives of the parties may also put questions to the expert, subject to the control of the President.37 Parties may object to an expert on the ground that the expert is not a competent or proper person to act as an expert or for any other reason.38 Overall, this process is not unlike the process applied by panels in the event it appoints experts though the procedural rules applicable in WTO dispute settlement are more detailed.39 The Court rarely appoints an expert.40 Among the reasons for this limited use of experts is the fact that the Court applies strict requirements for ordering an expert report as a measure of inquiry. It has been argued that the existing evidence must be deficient or the requesting party must have provided prima facie evidence in favour of its argument.41 Often the Court does not find such a measure of inquiry relevant or necessary. Sometimes the request is dismissed without giving specific reasons.42 Thus, using experts typically presupposes that there is disagreement about issues of fact or that there are questions that lie well beyond the capacities of a court of law.43 Where the CJEU relies on a court-appointed expert satisfying the conditions laid down in the Statute and the Rules of Procedure, it often appears very deferential to that evidence.44 At the same time, where the parties adduce expert evidence, whether and to what extent the CJEU attaches value to such expert evidence may differ greatly depending on the case at issue and whether or not the expert evidence was produced by the EU institutions or agencies or other institutions. 45 4. CONCLUSION The discussions at the symposium suggested that there is a common belief that broad parameters on the use of (expert) evidence before various international courts and tribunals could contribute to rendering dispute resolution before those institutions more transparent and possibly more efficient. It would appear that, for many international courts and tribunals, the challenge lies in designing rules that are sufficiently permissive and flexible but nonetheless result in a more equitable, efficient and transparent method of submitting and assessing expert evidence and (in fact) also other sources of evidence. At the same time, the practice of and rules governing the use of expert evidence before the CJEU and the WTO dispute settlement bodies suggests that a more calibrated treatment of court-appointed experts and party-appointed experts is required. At present, there is a tension between a strict enforcement of the criteria applicable to court-appointed experts and the fact that such criteria are not likewise enforced as regards party-appointed experts. Footnotes 1 See, eg, Chester Brown, A Common Law of International Adjudication (OUP 2007) Chapter 3. 2 This description is not exhaustive. Other contributors to the symposium have identified other functions such as the use of experts as conciliators. 3 See, eg, Panel Reports, China – Measures Related to the Exportation of Various Raw Materials (China – Raw Materials), WT/DS394/R/WT/DS395/R/WT/DS398/R/Add.1 and Corr.1, adopted 22 February 2012, as modified by Appellate Body Reports WT/DS394/AB/R/WT/DS395/AB/R/WT/DS398/AB/R, DSR 2012:VII, 3501, para 7.601; Case T/88/09 DEP Idromacchine Srl vCommission, ECLI:EU:T:2017:5, para 20 (distinguishing between a certificate of accuracy as compared to an expert’s report); and Case T-286/09, Intel Corp, ECLI:EU:T:2014:547, para 194. 4 See, eg, Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/R, adopted 15 July 2011, as modified by Appellate Body Report WT/DS371/AB/R, DSR 2011:IV, 2299, paras 7.709 and 7.710; Appellate Body Report, United States – Countervailing Duties on Certain Corrosion Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 3779, para 157. 5 See, eg, Panel Report, China – Raw Materials, paras 7.84, 7.528 to 7.538; Panel Reports, China – Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum, WT/DS431/R /WT/DS432/R /WT/DS433/R / and Add.1, adopted 29 August 2014, upheld by Appellate Body Reports WT/DS431/AB/R /WT/DS432/AB/R / WT/DS433/AB/, paras 7.169 and 7.178; Joined cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, Ahlström v Commission, ECLI:EU:C:1993:120, paras 75 to 82, 100 to 115, 121 to 125. 6 See, eg, Panel Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R/WT/DS401/R/ and Add.1, adopted 18 June 2014, as modified by Appellate Body Reports WT/DS400/AB/R/WT/DS401/AB/R, para 7.184 and especially fn 245–47. 7 For example, pursuant to art 17.5(ii) of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement), panels are to examine the matter before them based upon ‘the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member’. 8 In WTO dispute settlement, the latter occurs most commonly under the Agreement on the Application of Sanitary and Phytosanitary Agreement (SPS Agreement). See further Cherise Valise, ‘Different forms of expert involvement in WTO dispute settlement proceedings’ (2018) 9 JIDS, this issue; and Marisa Goldstein, ‘Legal Basis and Procedures for Consulting with Experts and International Organisations in WTO Dispute Settlement’ (2018) 9 JIDS, this issue. See also arts 14.2, 14.3 and Annex 2 of the TBT Agreement, arts 19.3, 19.4 and Annex 2 of the Customs Valuation Agreement and arts 4.5 and 24.3 of the SCM Agreement. However, panels may also rely on art 13.2 of the DSU (and Annex 4 to the DSU) which establishes the right of panels to ‘seek information from any relevant source and … consult experts to obtain their opinion on certain aspects of the matter’. Before the CJEU, the specific rules governing court-appointed experts are found especially in arts 25–32 of the Statute of the Court of Justice of the European Union; arts 63 and 70–74 of the Rules of Procedure of the Court of Justice and arts 91 and 96–102 of the Rules of Procedure of the General Court. 9 That is the case regarding, eg, disputes under the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (Customs Valuation Agreement). According to art 19.2 of that agreement, a panel, at the request of a party to the dispute or on its own initiative, ‘may request the Technical Committee [on Customs Valuation, which is a body established under the Customs Co-operation Council] to carry out an examination of any questions regarding technical consideration’. Art 19.4 adds that ‘the panel shall take into consideration the report of the Technical Committee’. Another expert body is the Permanent Group of Experts established pursuant to art 24(3) of the Agreement on Subsidies and Countervailing Measures (SCM Agreement). That is a body composed of five independent persons, highly qualified in the fields of subsidies and trade relations, which may be asked to assist a panel as regards the question of whether a measure at issue is a prohibited subsidy. Art 4(5) of the SCM Agreement provides that the Group’s conclusions on that question ‘shall be accepted by the panel without modification’. 10 See Appellate Body Reports, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 2755, para 91 and United States – Imposition of Countervailing Duties on Certain Hot Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/AB/R, adopted 7 June 2000, DSR 2000:V, 2595, para 42. 11 See, eg, Appellate Body Reports, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (Recourse to Article 21.5 by Mexico), WT/DS381/AB/RW, adopted 3 December 2015, fn 68 and European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R / WT/DS401/AB/R, adopted 18 June 2014, para 1.15. 12 Where WTO law applies specifically to domestic investigations and the panel is therefore not the first trier of facts, panels and the Appellate Body have articulated relatively clear rules on, especially, the admissibility of evidence and standard of proof. Examples include the rule that ‘a Member may not seek to defend its agency’s decision on the basis of evidence not contained in the record of the investigation’ (Appellate Body Report, United States – Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea, WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, 8131, para 161). 13 DSU, art 11. 14 Appellate Body Report, United States – Continued Existence and Application of Zeroing Methodology (‘US – Continued Zeroing’), WT/DS350/AB/R, adopted 19 February 2009, DSR 2009:III, 1291, para 331. 15 ibid. 16 ibid para 336. 17 General Court, Case T-201/04 Microsoft CorpvCommission, ECLI:EU:T:2007:289, para 87. 18 ibid para 88. 19 ibid para 89. 20 Relevant is also that the CJEU sometimes indirectly considers the value of expert evidence used by a party in the context of an order on costs. See, for example, Case T/88/09 DEP Idromacchine Srl vCommission, ECLI:EU:T:2017:5, para 18 (‘it is clear from the case-law that, in cases involving findings of an essentially economic nature, the involvement of economic advisers or experts in addition to the work of legal advisers may sometimes prove necessary …’) and the case-law cited. 21 Adopted by the DSB on 3 December 1996 (WT/DS/RC/1), II. Governing Principle. See also Appellate Body Reports, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R, adopted 14 November 2008, DSR 2008:X, 3507/ Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS321/AB/R, adopted 14 November 2008, DSR 2008:XIV (US – Continued Suspension / Canada – Continued Suspension), 5373, para 435. 22 Appellate Body Report, US – Continued Suspension / Canada – Continued Suspension, para 482. 23 Rules of Conduct, IV. Scope. Those provisions are arts 13.1 and 13.2 DSU; art 4.5 of the SCM Agreement; art 11.2 of the SPS Agreement; and arts 14.2 and 14.3 of the TBT Agreement. 24 Appellate Body Report, US – Continued Suspension / Canada – Continued Suspension, para 436. 25 ibid IV. Scope. Those provisions are arts 13.1 and 13.2 DSU; art 4.5 of the SCM Agreement; art 11.2 of the SPS Agreement; and arts 14.2 and 14.3 of the TBT Agreement. 26 Appellate Body Report, US – Continued Suspension / Canada – Continued Suspension, para 591. 27 ibid para 591. 28 ibid. 29 ibid para 592. 30 Art 71(2) of the Rules of Procedure states that the Court may, after hearing the parties, exempt the expert from taking the oath. 31 CJEU Statute, art 28. 32 ibid art 29, first paragraph. In such circumstances, the Court’s order is sent for implementation to the competent judicial authority under the conditions laid down in the Rules of Procedure. The documents drawn up in compliance with the letters rogatory are to be returned to the Court under the same conditions. 33 ibid art 32. 34 Rules of Procedure of the Court of Justice, art 64(2). 35 ibid art 70(1). 36 ibid art 70(3). 37 ibid art 70(4). 38 Ibid art 72(2). 39 Compare, with, for example, the Wording Procedures adopted in Indian – Agricultural Products, WT/DS430/R/Add.1/(Annex A-1), paras 19–31. See further Cherise Valise, ‘Different forms of expert involvement in WTO dispute settlement proceedings’ (2018) 9 JIDS, this issue; and Marisa Goldstein, ‘Legal Basis and Procedures for Consulting with Experts and International Organisations in WTO Dispute Settlement’ (2018) 9 JIDS, this issue. 40 Joined cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, Ahlström v Commission, ECLI:EU:C:1993:120, paras 31 and 32; Case T-169/89 Frederiksen v European Parliament, ECLI:EU:T:1991:69, paras 38–48. 41 Eric Barbier de la Serre and Anne-Lise Sibony, ‘Expert evidence before the EC courts’ (2008) 45 CMLR 941, 949. 42 See, eg, General Court, Case T-199/01, G v. Commission, ECLI:EU:T:2002:271, para 61. See, more generally, ‘Expert evidence before the EC courts’ (n 41) 944. 43 Eg, in Woodpulp, the Court decided, by order of 25 November 1988, to obtain an expert report. The experts were appointed by order of 16 March 1989. The expert report was submitted on 10 April 1990. The Court then decided, by order of 25 October 1990, to ask for a second report and appointed the experts by that same order. That second report was submitted on 11 April 1991. 44 See, eg, Joined cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, Ahlström v Commission, ECLI:EU:C:1993:120; Case T-169/89 Frederiksen v European Parliament, ECLI:EU:T:1991:69, paras 73 and 74. 45 In this context, it is relevant that the Court will not always summarise in its judgments the arguments and evidence presented by the parties. It is therefore not always clear whether expert evidence on which the Court relies was presented to it by a party or found by the Court of its own motion. See, eg, Case C-477/14 Pillbox 38, ECLI:EU:C:2016:324, para 51. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. 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The assessment of expert evidence in international adjudication

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Abstract

Abstract An assessment of the different contexts in which expert evidence in international adjudication, in particular in the settlement of disputes before the Court of Justice of the European Union (CJEU) and the World Trade Organization (WTO) dispute settlement system, may be used shows that the challenge lies in designing rules that are sufficiently permissive and flexible but nonetheless result in a more equitable, efficient and transparent method of submitting and assessing expert evidence. At the same time, the practice of and the rules governing the use of expert evidence before the CJEU and the WTO dispute settlement bodies suggest that a more calibrated treatment of court-appointed experts and party-appointed experts is required. 1. INTRODUCTION An assessment of the different purposes for which expert evidence in international adjudication may be used, in particular in the settlement of disputes before the CJEU (both the General Court and the Court of Justice) and the WTO dispute settlement system, presupposes that there is a common understanding of the meaning of an ‘expert’ and the applicable rules regarding the admissibility of evidence, the standard of proof and the standard of review in the relevant fora of dispute resolution.1 However, in international adjudication as it exists today this type of procedural rule remains underdeveloped. In the absence of such a procedural framework, an assessment of the (lack of) use of expert evidence therefore necessarily entails a degree of imprecision. In essence, rules regarding the admissibility of evidence, the standard of proof and the standard of review in the relevant fora of dispute resolution concern the value to be attached by an adjudicator, on whom jurisdiction has been conferred to resolve a dispute regarding the interpretation and application of law, to evidence. The focus of this article therefore is not on whether any value at all should be given to expert evidence. Other contributors to this issue of the Journal of International Dispute Settlement will address that matter in greater detail. My own view is that the use of expert evidence may be (very) valuable, provided that there is an accord on the essential procedural guarantees for the treatment of such evidence, including respect for due process. 2. GENERAL OBSERVATIONS ON THE FUNCTION(S) OF EXPERTS The practice of relying on expert evidence in international dispute settlement shows that such evidence may be used for different purposes, such as appraising factual assertions, identifying data, verifying the validity of a methodology or assessing opinions as regards such facts or methodologies. Discussions during the symposium on ‘The Expert in the International Adjudicative Process’, in which judges and counsel active in various dispute settlement fora took part, attested to that diversity.2 There is no generally applicable definition of experts. I would therefore submit that, for the purposes of this brief note, experts are in essence reputable, qualified, independent and objective individuals or organizations with a unique knowledge of facts falling within their expertise that are relevant to the resolution of a dispute before a court or tribunal. The evidence which they produce, whether in the form of written reports (whether or not produced for the specific purpose of being filed as evidence in judicial proceedings) and/or oral testimony, may be used by parties or be requested by courts or tribunals themselves. Experts can be used in international adjudication in order to appraise factual assertions (such as the assessment of municipal law or the evaluation of economic data) or identify data (such as the collection of import/export statistics). Where expert evidence is used to determine the existence of facts occurring or data produced outside of the control of the expert, it might suffice to rely on the original source of those facts or data, though an expert might assist in identifying the proper sources and offer additional support for a factual assertion.3 For example, the meaning of domestic law might be shown by relying on the text of the relevant legislation or legal instruments, evidence of the consistent application of such laws and the pronouncements of domestic courts on the meaning of such laws. A statement of an expert might summarize and collect all of these elements and/or add further interpretive arguments in support of one or the other meaning.4 The situation is quite different where the expert is the original source of facts in the sense that the expert observed, assessed and/or organized the facts in a particular manner. In those circumstances, the expert evidence might be essential to a party’s discharge of the burden of proof because no other source is available. Or expert evidence can be relied upon in support of the validity and general acceptance of using a particular (scientific) methodology and of the results of its application (for example, the merits of using one particular economic model as compared to another). The value of such expert evidence lies in the opinions or conclusions reached by the individual or organization authoring the expert statement, often regarding a certain fact or the application of a particular methodology applied to a defined set of facts. In such circumstances, the expert focuses primarily on the causes and consequences of relevant facts.5 Thus, experts can be used for different purposes in discharging the burden of proof of the party relying on expert evidence. Not all expert evidence will perform each and every one of those functions. That also implies that, in considering how expert evidence is to be assessed by international courts and tribunals, it is necessary to take into account the specific purposes for which the expert evidence is used, either by the party relying on that expert or the adjudicator deciding on the matter put before it in the light of the arguments and evidence presented to it. Therefore, the assessment of the use of expert evidence must take into account such contextualization and avoid studying expert evidence as being a monolithic category of evidence. In other words, the contribution of an expert in, for example, economics, national law, science, or other areas relevant to the fact-finding exercise or assessment of facts that is to occur before an international court or tribunal is not necessarily the same. At the same time, irrespective of the function of such evidence in a particular case, the use of expert evidence by one party will often prompt the other party to respond, in the absence of rules on the admissibility and value of expert evidence, by relying on its own expert. The alternative strategy might consist of challenging the reliability, independence and quality of the expert used by the other party, even if such challenges appear to be not that common. With that proliferation of expert evidence might come the risk of decreasing probative value and lower return in terms of the probative value which an adjudicator attaches to such statements.6 Faced with the risk of conflicting views of experts, an adjudicator should weigh the value of experts expressing different opinions as regards the same facts or methodology applied to those facts. However, in the absence of procedural rules, an adjudicator might also opt for an overall assessment of the entirety of the evidence and, in that manner, avoid taking a position on the probative value of specific expert evidence. Against that background, this article now turns to specific contexts in which experts may be used in WTO dispute settlement and in cases pending before the CJEU. 3. A COMPARISON OF THE USE OF EXPERTS IN WTO DISPUTE SETTLEMENT AND BY THE CJEU A. The contexts in which experts are used in WTO dispute settlement and by the CJEU In examining the role of expert evidence in the context of litigation before the CJEU and the WTO dispute settlement bodies, there appear to be at least three contexts in which expert evidence will be used. Firstly, expert evidence might be reviewed by a national authority or an EU institution in its assessment of the matter before it, followed by the review by the CJEU (possibly first by the General Court, followed by, in the event of an appeal, the Court of Justice) or a WTO panel of that authority’s decision and underlying assessment.7 Secondly, before the CJEU or a WTO panel, expert evidence might be presented to the CJEU or a WTO panel by one of the parties to the dispute (the so-called party-appointed experts), typically as part of their written pleadings. Thirdly, the CJEU or a WTO panel may decide to appoint one or more expert(s) in accordance with the procedural rules under which they operate.8 As regards, in particular, the WTO dispute settlement system, two other contexts in which experts may be used (but not necessarily in the form of expert evidence) might be added. Apart from the lawyers who are a part of the Legal Affairs Division (and serve a role similar to that of référendaires or legal secretaries in the CJEU), WTO panels may also be assisted by other members of the WTO Secretariat, such as economists or subject-matter experts in areas such as intellectual property rights protection and SPS protection, or by specialized expert bodies for which the WTO covered agreements provide.9 Their assistance might involve also assessing the expert evidence received by the panel, either on the panel’s initiative or submitted by the parties. In the CJEU, subject to the possibility of appointing an expert or obtaining (informally) the linguistic expertise of a lawyer-linguist working at the CJEU, there does not appear to be any possibility of having experts (in matters other than the task of interpreting and applying EU law) to assist the judges sitting in a chamber deciding a particular case. Other than the judges and the members of their individual chambers assisting them (that is, legal secretaries), there are no subject-matter experts. The procedural rules governing the CJEU do not provide for the possibility of chambers specialized in certain subject matters. Nor are there economists who are employed by the CJEU and available to assist judges in reviewing the evidence presented by the parties. At best, linguistic discrepancies in the texts of the treaties, legislation and other documents requiring interpretation and/or application might be resolved with the assistance of the large number of lawyer-linguists charged with the translation of judgments and opinions, applications, requests for a preliminary ruling and parties’ submissions. Thus, in the CJEU, the judges will assess independently detailed and often factual evidence, without the assistance of a so-called ‘in house’ expert. An additional context requiring attention in the WTO dispute settlement system is the possibility of having a party that does not participate in the proceedings (primarily because it has no standing) file an amicus curiae brief. The DSU neither prohibits nor expressly authorizes the submission of such briefs by, for example, industry associations, academics or non-governmental organizations. The Appellate Body has accepted that panels and the Appellate Body have the authority to accept amicus curiae briefs.10 In practice, where the Appellate Body accepts such briefs and their submission was timely, it does not consider it necessary to rely on them.11 Those briefs might have a particular legal content. However, there are no rules in the Understanding on Rules and Procedures Governing the Settlement of Disputes (‘DSU’) or the practice of WTO dispute settlement preventing that amicus curiae briefs have (at least in part) a content similar to that of a statement prepared by an expert. The CJEU may receive expert input indirectly but in a separate manner. Under the applicable rules, bodies, offices and agencies of the Union and any other person which can establish an interest in the result of a case submitted to the Court may, subject to certain conditions, intervene in cases before the Court. That right under Article 40 of the Statute of the Court of Justice (‘CJEU Statute’) therefore guarantees that bodies, offices and agencies with a particular expertise may file submissions. However, such an intervention is subject to more constraints compared to those that apply to filing an amicus curiae brief in WTO dispute settlement. Nonetheless, their participation in the process might render it less necessary to rely on external actors for expertise. B. Common Features of the Assessment of Expert Evidence While the procedural rules governing the use and assessment of evidence in proceedings before the CJEU and the WTO dispute settlement system are very different, they nonetheless share a few common features. Firstly, in general, there are few rules on the admissibility of evidence12 and, in particular, expert evidence. Nor is there detailed guidance as to the intensity of the review of evidence or to what is the relevant standard of proof, meaning the quantity and quality of evidence required in order for a party to discharge its burden of proof as regards a particular claim, defence or other argument. In the context of the WTO dispute settlement system, panels ‘should make an objective assessment of the matter before it, including an objective assessment of the facts of the case …’.13 However, in so doing, panels ‘enjoy a certain margin of discretion … in assessing the credibility and weight to be ascribed to a given piece of evidence’.14 They are to ‘… examine and consider all the evidence before it, not just the evidence submitted by one or the other party, and to evaluate the relevance and probative force of each piece thereof’.15 That requirement also means that ‘a panel has a duty … to evaluate the evidence in its totality, even if no piece of evidence is by itself determinative of an asserted fact or claim’.16 Exercise of the EU courts’ jurisdiction does not involve, in every case, an assessment of facts. In fact, a significant number of cases heard by, especially the Court of Justice, concern only questions of law (for example, appeals or requests for preliminary rulings). Where facts are at issue (such as in infringement proceedings), the EU courts might be asked to review the validity of an act of an EU institution involving or taken on the basis of an assessment of detailed facts and requiring a certain degree of expertise. In such circumstances, a degree of deference is shown to the assessment made by the institution. For example, in case of an EU institution having made a complex economic appraisal, the General Court has found that the EU courts’ ‘review of complex economic appraisals made by the Commission is necessarily limited to checking whether the relevant rules on procedure and on stating reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers’.17 The General Court has added that ‘while the [EU Courts] recognise that the Commission has a margin of appreciation in economic or technical matters, that does not mean that they must decline to review the Commission’s interpretation of economic or technical data’.18 Those courts ‘must not only establish whether the evidence put forward is factually accurate, reliable and consistent but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it’.19 Thus, first, similar to what is the case in other international (and regional) courts and tribunals, the CJEU and the WTO dispute settlement system are constrained by few rules in their treatment of evidence. The lack of guidance as to the standard of proof means also that parties, especially in WTO dispute settlement, continue, throughout the proceedings, to file evidence. Even if they have the burden of proof, they cannot know whether their evidence will be deemed inadequate in the light of a non-specified legal standard applied by panels. In the CJEU, there are fewer opportunities for filing evidence and (at least before the Court of Justice, as compared to the General Court) most types of procedure do not require that facts are shown because, for example, the Court of Justice is asked to deliver a preliminary ruling on an interpretative question or exercises appellate review. Secondly, unlike what is the case for party-appointed expert evidence, the rules governing proceedings before the WTO dispute settlement bodies and the CJEU lay down the conditions in which court-appointed experts may be used and the process for their appointment. In contrast, where panels or the CJEU review or simply rely on party-appointed expert evidence, no such detailed rules exist and there is often very little scrutiny of the qualities of the expert and of his opinion.20 In the WTO, the expert appointed by a panel must be ‘independent and impartial’, avoid ‘direct or indirect conflicts of interest’ and respect ‘the confidentiality of proceedings’ before the WTO dispute settlement bodies. Those standards of conduct are laid down in the Rules of Conduct for the Understanding on the Rules and Procedures Governing the Settlement of Disputes (Rules of Conduct).21 Pursuant to those Rules of Conduct, an expert ‘shall not incur any obligation or accept any benefit that would in any way interfere with, or which could give rise to, justifiable doubts as to the proper performance of that person’s dispute settlement duties’.22 Those rules apply to panellists, Appellate Body Members, arbitrators and experts appointed by a panel pursuant to specific provisions of the WTO covered agreements.23 Panels must also guarantee that, throughout the process of appointing and consulting experts, the fundamental guarantees of due process are respected (which include fairness and impartiality in the decision-making process).24 Failure to do so may result in a claim that the panel failed to make an objective assessment of the matter before it and therefore violated Article 11 of the DSU.25 In the context of the review of scientific evidence (used as a basis for SPS measures), the Appellate Body has emphasized that a panel must ‘verify that the scientific basis comes from a respected and qualified source’.26 That scientific basis, whilst not needing to represent the majority view within the scientific community, must ‘have the necessary scientific and methodological rigour to be considered reputable science’ and ‘the views must be considered to be legitimate science according to the standards of the relevant scientific community’.27 Furthermore, a panel is to assess ‘whether the reasoning articulated on the basis of the scientific evidence is objective and coherent’. That means that ‘a panel should review whether the particular conclusions drawn by the Member assessing the risk find sufficient support in the scientific evidence relied upon’ and ‘whether the results of the risk assessment “sufficiently warrant” the SPS measure at issue’.28 Finally, the Appellate Body has stressed that ‘a panel may not rely on the experts to go beyond its limited mandate of review’ and that ‘[t]he purpose of a panel consulting with experts is not to perform its own risk assessment’.29 Panels rarely engage in a similar examination of the impartiality and independence of a party-appointed expert. It would appear that panels will look into those qualities only in the event that the other party contests that the expert satisfies those conditions. Putting aside the question of whether the CJEU is more alike a (supra)national constitutional than an international court, the CJEU has probably the widest jurisdiction among existing international courts, in terms of subject matter, type of procedure and the identity of parties having standing to appear before it. Despite those features and the great number of cases heard by the EU courts, the CJEU does not appear to rely on expert evidence more than, for example, WTO panels. In accordance with Article 25 of the CJEU Statute, the CJEU may at any time ask any individual, body, authority, committee or other organization it chooses to give an expert opinion. Such an expert must take an oath, either in the form laid down in the Rules of Procedure30 or in the manner laid down by the law of the country of the expert.31 An expert may also be heard by the judicial authority of his place of permanent residence, if this is so ordered by the Court (for example, if the expert cannot appear before the Court).32 During the hearings, the Court may examine the experts themselves.33 The Court may prescribe measures of inquiry that it considers appropriate by means of an order setting out the facts to be proved. A measure of inquiry may be the commission of an expert’s report.34 The order appointing the expert is to define the task of the expert and set a time-limit for submitting the export report.35 After the report has been submitted and been served on the parties, Article 70(2) provides that ‘the Court may order that the expert be examined, the parties having been given notice to attend’. According to that same provision, the President of the Court may put questions to the expert, either at the request of one of the parties or of his own motion. The same right is granted to other Judges and the Advocate General.36 Representatives of the parties may also put questions to the expert, subject to the control of the President.37 Parties may object to an expert on the ground that the expert is not a competent or proper person to act as an expert or for any other reason.38 Overall, this process is not unlike the process applied by panels in the event it appoints experts though the procedural rules applicable in WTO dispute settlement are more detailed.39 The Court rarely appoints an expert.40 Among the reasons for this limited use of experts is the fact that the Court applies strict requirements for ordering an expert report as a measure of inquiry. It has been argued that the existing evidence must be deficient or the requesting party must have provided prima facie evidence in favour of its argument.41 Often the Court does not find such a measure of inquiry relevant or necessary. Sometimes the request is dismissed without giving specific reasons.42 Thus, using experts typically presupposes that there is disagreement about issues of fact or that there are questions that lie well beyond the capacities of a court of law.43 Where the CJEU relies on a court-appointed expert satisfying the conditions laid down in the Statute and the Rules of Procedure, it often appears very deferential to that evidence.44 At the same time, where the parties adduce expert evidence, whether and to what extent the CJEU attaches value to such expert evidence may differ greatly depending on the case at issue and whether or not the expert evidence was produced by the EU institutions or agencies or other institutions. 45 4. CONCLUSION The discussions at the symposium suggested that there is a common belief that broad parameters on the use of (expert) evidence before various international courts and tribunals could contribute to rendering dispute resolution before those institutions more transparent and possibly more efficient. It would appear that, for many international courts and tribunals, the challenge lies in designing rules that are sufficiently permissive and flexible but nonetheless result in a more equitable, efficient and transparent method of submitting and assessing expert evidence and (in fact) also other sources of evidence. At the same time, the practice of and rules governing the use of expert evidence before the CJEU and the WTO dispute settlement bodies suggests that a more calibrated treatment of court-appointed experts and party-appointed experts is required. At present, there is a tension between a strict enforcement of the criteria applicable to court-appointed experts and the fact that such criteria are not likewise enforced as regards party-appointed experts. Footnotes 1 See, eg, Chester Brown, A Common Law of International Adjudication (OUP 2007) Chapter 3. 2 This description is not exhaustive. Other contributors to the symposium have identified other functions such as the use of experts as conciliators. 3 See, eg, Panel Reports, China – Measures Related to the Exportation of Various Raw Materials (China – Raw Materials), WT/DS394/R/WT/DS395/R/WT/DS398/R/Add.1 and Corr.1, adopted 22 February 2012, as modified by Appellate Body Reports WT/DS394/AB/R/WT/DS395/AB/R/WT/DS398/AB/R, DSR 2012:VII, 3501, para 7.601; Case T/88/09 DEP Idromacchine Srl vCommission, ECLI:EU:T:2017:5, para 20 (distinguishing between a certificate of accuracy as compared to an expert’s report); and Case T-286/09, Intel Corp, ECLI:EU:T:2014:547, para 194. 4 See, eg, Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/R, adopted 15 July 2011, as modified by Appellate Body Report WT/DS371/AB/R, DSR 2011:IV, 2299, paras 7.709 and 7.710; Appellate Body Report, United States – Countervailing Duties on Certain Corrosion Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 3779, para 157. 5 See, eg, Panel Report, China – Raw Materials, paras 7.84, 7.528 to 7.538; Panel Reports, China – Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum, WT/DS431/R /WT/DS432/R /WT/DS433/R / and Add.1, adopted 29 August 2014, upheld by Appellate Body Reports WT/DS431/AB/R /WT/DS432/AB/R / WT/DS433/AB/, paras 7.169 and 7.178; Joined cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, Ahlström v Commission, ECLI:EU:C:1993:120, paras 75 to 82, 100 to 115, 121 to 125. 6 See, eg, Panel Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R/WT/DS401/R/ and Add.1, adopted 18 June 2014, as modified by Appellate Body Reports WT/DS400/AB/R/WT/DS401/AB/R, para 7.184 and especially fn 245–47. 7 For example, pursuant to art 17.5(ii) of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement), panels are to examine the matter before them based upon ‘the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member’. 8 In WTO dispute settlement, the latter occurs most commonly under the Agreement on the Application of Sanitary and Phytosanitary Agreement (SPS Agreement). See further Cherise Valise, ‘Different forms of expert involvement in WTO dispute settlement proceedings’ (2018) 9 JIDS, this issue; and Marisa Goldstein, ‘Legal Basis and Procedures for Consulting with Experts and International Organisations in WTO Dispute Settlement’ (2018) 9 JIDS, this issue. See also arts 14.2, 14.3 and Annex 2 of the TBT Agreement, arts 19.3, 19.4 and Annex 2 of the Customs Valuation Agreement and arts 4.5 and 24.3 of the SCM Agreement. However, panels may also rely on art 13.2 of the DSU (and Annex 4 to the DSU) which establishes the right of panels to ‘seek information from any relevant source and … consult experts to obtain their opinion on certain aspects of the matter’. Before the CJEU, the specific rules governing court-appointed experts are found especially in arts 25–32 of the Statute of the Court of Justice of the European Union; arts 63 and 70–74 of the Rules of Procedure of the Court of Justice and arts 91 and 96–102 of the Rules of Procedure of the General Court. 9 That is the case regarding, eg, disputes under the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (Customs Valuation Agreement). According to art 19.2 of that agreement, a panel, at the request of a party to the dispute or on its own initiative, ‘may request the Technical Committee [on Customs Valuation, which is a body established under the Customs Co-operation Council] to carry out an examination of any questions regarding technical consideration’. Art 19.4 adds that ‘the panel shall take into consideration the report of the Technical Committee’. Another expert body is the Permanent Group of Experts established pursuant to art 24(3) of the Agreement on Subsidies and Countervailing Measures (SCM Agreement). That is a body composed of five independent persons, highly qualified in the fields of subsidies and trade relations, which may be asked to assist a panel as regards the question of whether a measure at issue is a prohibited subsidy. Art 4(5) of the SCM Agreement provides that the Group’s conclusions on that question ‘shall be accepted by the panel without modification’. 10 See Appellate Body Reports, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 2755, para 91 and United States – Imposition of Countervailing Duties on Certain Hot Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/AB/R, adopted 7 June 2000, DSR 2000:V, 2595, para 42. 11 See, eg, Appellate Body Reports, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (Recourse to Article 21.5 by Mexico), WT/DS381/AB/RW, adopted 3 December 2015, fn 68 and European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R / WT/DS401/AB/R, adopted 18 June 2014, para 1.15. 12 Where WTO law applies specifically to domestic investigations and the panel is therefore not the first trier of facts, panels and the Appellate Body have articulated relatively clear rules on, especially, the admissibility of evidence and standard of proof. Examples include the rule that ‘a Member may not seek to defend its agency’s decision on the basis of evidence not contained in the record of the investigation’ (Appellate Body Report, United States – Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea, WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, 8131, para 161). 13 DSU, art 11. 14 Appellate Body Report, United States – Continued Existence and Application of Zeroing Methodology (‘US – Continued Zeroing’), WT/DS350/AB/R, adopted 19 February 2009, DSR 2009:III, 1291, para 331. 15 ibid. 16 ibid para 336. 17 General Court, Case T-201/04 Microsoft CorpvCommission, ECLI:EU:T:2007:289, para 87. 18 ibid para 88. 19 ibid para 89. 20 Relevant is also that the CJEU sometimes indirectly considers the value of expert evidence used by a party in the context of an order on costs. See, for example, Case T/88/09 DEP Idromacchine Srl vCommission, ECLI:EU:T:2017:5, para 18 (‘it is clear from the case-law that, in cases involving findings of an essentially economic nature, the involvement of economic advisers or experts in addition to the work of legal advisers may sometimes prove necessary …’) and the case-law cited. 21 Adopted by the DSB on 3 December 1996 (WT/DS/RC/1), II. Governing Principle. See also Appellate Body Reports, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R, adopted 14 November 2008, DSR 2008:X, 3507/ Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS321/AB/R, adopted 14 November 2008, DSR 2008:XIV (US – Continued Suspension / Canada – Continued Suspension), 5373, para 435. 22 Appellate Body Report, US – Continued Suspension / Canada – Continued Suspension, para 482. 23 Rules of Conduct, IV. Scope. Those provisions are arts 13.1 and 13.2 DSU; art 4.5 of the SCM Agreement; art 11.2 of the SPS Agreement; and arts 14.2 and 14.3 of the TBT Agreement. 24 Appellate Body Report, US – Continued Suspension / Canada – Continued Suspension, para 436. 25 ibid IV. Scope. Those provisions are arts 13.1 and 13.2 DSU; art 4.5 of the SCM Agreement; art 11.2 of the SPS Agreement; and arts 14.2 and 14.3 of the TBT Agreement. 26 Appellate Body Report, US – Continued Suspension / Canada – Continued Suspension, para 591. 27 ibid para 591. 28 ibid. 29 ibid para 592. 30 Art 71(2) of the Rules of Procedure states that the Court may, after hearing the parties, exempt the expert from taking the oath. 31 CJEU Statute, art 28. 32 ibid art 29, first paragraph. In such circumstances, the Court’s order is sent for implementation to the competent judicial authority under the conditions laid down in the Rules of Procedure. The documents drawn up in compliance with the letters rogatory are to be returned to the Court under the same conditions. 33 ibid art 32. 34 Rules of Procedure of the Court of Justice, art 64(2). 35 ibid art 70(1). 36 ibid art 70(3). 37 ibid art 70(4). 38 Ibid art 72(2). 39 Compare, with, for example, the Wording Procedures adopted in Indian – Agricultural Products, WT/DS430/R/Add.1/(Annex A-1), paras 19–31. See further Cherise Valise, ‘Different forms of expert involvement in WTO dispute settlement proceedings’ (2018) 9 JIDS, this issue; and Marisa Goldstein, ‘Legal Basis and Procedures for Consulting with Experts and International Organisations in WTO Dispute Settlement’ (2018) 9 JIDS, this issue. 40 Joined cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, Ahlström v Commission, ECLI:EU:C:1993:120, paras 31 and 32; Case T-169/89 Frederiksen v European Parliament, ECLI:EU:T:1991:69, paras 38–48. 41 Eric Barbier de la Serre and Anne-Lise Sibony, ‘Expert evidence before the EC courts’ (2008) 45 CMLR 941, 949. 42 See, eg, General Court, Case T-199/01, G v. Commission, ECLI:EU:T:2002:271, para 61. See, more generally, ‘Expert evidence before the EC courts’ (n 41) 944. 43 Eg, in Woodpulp, the Court decided, by order of 25 November 1988, to obtain an expert report. The experts were appointed by order of 16 March 1989. The expert report was submitted on 10 April 1990. The Court then decided, by order of 25 October 1990, to ask for a second report and appointed the experts by that same order. That second report was submitted on 11 April 1991. 44 See, eg, Joined cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, Ahlström v Commission, ECLI:EU:C:1993:120; Case T-169/89 Frederiksen v European Parliament, ECLI:EU:T:1991:69, paras 73 and 74. 45 In this context, it is relevant that the Court will not always summarise in its judgments the arguments and evidence presented by the parties. It is therefore not always clear whether expert evidence on which the Court relies was presented to it by a party or found by the Court of its own motion. See, eg, Case C-477/14 Pillbox 38, ECLI:EU:C:2016:324, para 51. © 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 20, 2018

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