The Search for Objectivity: The Use of Experts in Philip Morris v Uruguay

The Search for Objectivity: The Use of Experts in Philip Morris v Uruguay Abstract This essay uses a prominent ICSID arbitral ruling to explore the prospects for developing ‘best practices’ for handling expert evidence in international adjudication. It argues that the treatment of evidence responds to institutional context and explains why investor-state arbitrations take a lax approach to admitting and relying on many forms of expertise. Their penchant for relying on experts—including legal experts opining on matters familiar to the arbitrators—casts doubt on the proposition that experts should testify only with respect to scientifically provable matters that are beyond the ken of adjudicators. 1. INTRODUCTION A number of participants at the conference that launched the essays in this Journal have argued in favour of general rules or a common framework of ‘best practices’ for dealing with scientific evidence in international adjudication. This appears to respond to the perceived risks of ‘fragmentation’ among today’s diverse international courts and tribunals. Coherent substantive jurisprudence is seen as more likely if common rules were to develop with respect to the use of experts in all such forums. It was proposed that such rules should be built around a consensus, first, that ‘law ascertainment’ should be clearly distinguished from both fact-finding and the use of ‘scientific evidence’.1 Secondly, it was suggested that this demarcation of tasks should define the roles of participants in international adjudication. Consistent with the principle of iura novit curia, arbitrators or judges are said to be entrusted with the exclusive prerogative to engage in law ascertainment; similarly, only they can identify, clarify or interpret the law to be applied and apply that law to the facts.2 While the litigants frame legal claims and develop legal arguments, adjudicators, not counsel, determine the law. Ordinary witnesses, not to be confused with those with specialized knowledge known as experts, only make representations about the veracity of facts. Experts, who do not engage in the ascertainment of law or in the establishment of ordinary facts, also do not: opine on conflicting legal rules or facts presented by the litigants, resolve conflicts among other evidence (such as those presented by non-litigating governments or other experts), assist the tribunal in selecting facts not subject to proof,3 address the relative weight of evidence, or authenticate evidence.4 While scientific experts might be used, for example, to help determine whether a document is forged; authentication—like all determinations of fact, law, and the application of one to the other—are ultimately matters for the adjudicator who, consistent with the rule of law, should not ‘out-source’ this role to others. Under this strictly delimited role (with which this author disagrees as discussed below), experts are properly deployed only to assist an adjudicator’s understanding of matters that, due to their technical or specialized nature, are beyond their ken. In this view, scientific experts play a decidedly restrictive role: they help non-experts in the litigation, most importantly the adjudicators, to understand the structure and behavior of the ‘physical and natural world’ through the application of accepted scientific methods such as observation and experiment.5 The need to make sure that expert evidence is ‘scientifically responsible’ may itself determine what is meant by a ‘scientific expert’. If such experts are limited to those who deploy methods of the type and rigor deployed in the hard sciences, that alone serves to distinguish them from those who opine on other matters (such as the quantum of damage or the requirements of the law) who do not use such methods.6 This essay examines the extensive use of expert evidence in the ICSID Award in Philip Morris vUruguay to indicate how experts are actually being used in investor-state dispute settlement (ISDS), one of the most prominent forums for resolving international disputes. As of the end of 2016, over 700 known investor-treaty arbitrations had been initiated, thereby rivaling the numbers of interstate claims pursued in the WTO and exceeding those heard by the ICJ.7 If ‘best practices’ with respect to expert evidence are to emerge, it is important to know what such practices now are among high profile investor-state cases, such as Philip Morris vUruguay. 2. THE USE OF EXPERTS IN PHILIP MORRIS V URUGUAY This highly publicized dispute, one of a number involving challenges to tobacco control measures being heard before ICSID tribunals as well as in the WTO,8 addressed a complaint brought by Philip Morris, a Swiss company, along with its wholly owned Uruguayan subsidiary, Abal, against the government of Uruguay under the Swiss-Uruguayan BIT of 1991.9 The claimants argued that Uruguay had violated the BIT’s Article 3(1) (barring impairment of the use and enjoyment of investments), 3(2) (guaranteeing fair and equitable treatment and prohibiting denials of justice), 5 (providing for compensation in cases of expropriation), and/or 11 (granting observance of commitments), by precluding tobacco manufacturers from marketing more than one variant of cigarette per brand family (Uruguay’s ‘Single Presentation Requirement’ or ‘SPR’), by increasing the size of graphic health warnings appearing on the front and back of cigarette packs to 80%, leaving only 20% for trademarks and other information (its ‘80/80 regulation’), and by the treatment accorded the claimants in Uruguayan courts. Philip Morris argued that the SPR adversely impacted the value of its subsidiary and that the 80/80 regulation wrongfully limited Abal’s right to use its legally protected trademarks, a form of protected investment.10 The claimants further argued that two Uruguayan courts, the Supreme Court of Justice and the Tribunal de lo Contencioso Administrativo (TCA), denied justice to them insofar as the two rendered unreviewable, contradictory rulings and because the TCA had ignored certain proffered evidence.11 Uruguay defended its actions as non-discriminatory measures taken to protect public health consistent with its international commitments, particularly the WHO Framework Convention on Tobacco Control (FCTC). It argued that it adopted the SPR to mitigate the adverse effects of tobacco promotion (including misleading marketing suggesting that certain brand variants were ‘safer’) and its 80/80 regulation to increase consumer awareness of the health risks of smoking.12 By majority vote, the three person ICSID tribunal, consisting of Chair Piero Bernardini, Gary Born and James Crawford, dismissed all the investors’ claims and awarded Uruguay $7 million to cover part of its costs in the litigation. Arbitrator Born, concurring with much of the award, dissented on two aspects. He would have upheld the claim for denial of justice based on the ‘contradictory’ actions of the two Uruguayan courts as well as the claim that the SPR was a manifestly arbitrary and disproportionate measure in violation of the BIT’s FET provision.13 The Morris dispute relied heavily on evidence presented by ordinary witnesses as well as distinct ‘experts’, including experts on law, on the marketing of cigarettes and on public health. In accordance with the governing ICSID arbitration rules, the arbitrators enjoyed wide discretion on the treatment of evidence.14 In accordance with those rules, which differentiate the affirmations made by ordinary witnesses and experts, the Morris ruling distinguished ‘witness’ from ‘expert’ reports—while relying heavily on both throughout and not suggesting any general rule about the relative weight to be accorded each.15 Like a number of ISDS cases, the dispute generated considerable public interest and elicited amici from the WHO (joined by the Secretariat of the FCTC) as well as by the Pan American health Organization (PAHO), both in support of Uruguay’s position. Although not classified as such by the tribunal, the WHO/FCTA and PAHO briefs were treated as a form of expert evidence; as discussed below, the tribunal treated both amici as evincing public health expertise. The Morris tribunal first made reference to expert testimony for purposes of describing the domestic regulatory framework. It next turned to experts, as well as ordinary factual witnesses, to resolve disputed questions over Uruguay’s motivations for its tobacco control measures and their effects on consumers. In the face of conflicting evidence on the impact of Uruguay’s measures,16 the tribunal drew on the WHO/FCTC and PAHO briefs for its conclusion that Uruguay’s SPR and 80/80 measures were supported by the ‘international public health community’ and relate (if modestly) to ‘consistent decreases in smoking’ in that country.17 Suggestions made by the amici that the SPR was grounded in a substantial body of evidence and that the 80/80 regulations were reasonable and responsible responses to deceptive advertising practices in the industry were relied upon by the tribunal to rebut the contention that the challenged measures were ‘arbitrary’.18 The tribunal majority found a connection between the objective pursued by the state and the utility of the two measures because, in part, this had been ‘recognized by the WHO and the PAHO Amicus Briefs, which contain a thorough analysis of the history of tobacco control and the measures adopted to that effect.’19 In response to the claim that Uruguay’s measures did not enhance knowledge about the well-known health risks of smoking, the tribunal cited empirical evidence to the contrary from other experts, including ‘numerous scientific studies’ cited by the US Surgeon General and the US National Cancer Institute.20 In response to the claim that Uruguay did not conduct its own scientific studies of the effects of its tobacco control measures, the tribunal again resorted to the WTO/FCTC and PAHO amici which indicated that Uruguay had been one of the most active FCTC participants, by way of suggesting that a country with limited technical and economic resources was entitled to rely on the exchange of ‘evidence-based’ public information generated by resources like the FCTC and its Guidelines.21 The views of tobacco control experts, particularly those within the WTO/FCTC and PAHO, were similarly determinative on whether Uruguay’s two measures were otherwise a violation of FET.22 Although Uruguay’s SPR measure had not been the subject of prior research concerning its effects, the tribunal found it not to violate the FET because, ‘as held by the WHO, “the rationale for this action [was] supported by the evidence’.23 Acknowledging that marketing data on the effects of the SPR was ‘discordant’, the majority found that it was not necessary to decide whether the SPR had the effects intended but only whether it was ‘reasonable’ for Uruguay to so assume.24 Consistent with respondent’s experts and the WHO/FCTA and PAHO amici, the majority found that the SPR ‘was an attempt to address a real public health concern, that the measure was not disproportionate to that concern and that it was adopted in good faith’.25 Its finding on the 80/80 regulation was nearly identical except that in that instance the tribunal was also able to rely on marketing experts who indicated that the increased size of health warnings appeared to relate to increased numbers of consumers inclined to quit smoking.26 Accordingly, the tribunal found that the 80/80 measure was ‘adopted in good faith to implement an obligation assumed by the State under the FCTC’.27 Experts who opined on national and international law were repeatedly deployed. The litigants turned to experts on intellectual property law to address the allegedly distinctive character of registered trademarks and to opine on whether the TRIPs Agreement or Uruguayan law protects the right to ‘use’ trademarks. Such experts also addressed whether such rights constitute ‘property’ that can be subject to ‘expropriation’.28 The tribunal heavily relied on what it perceived to be common ground among these experts, relying on them to conclude that while neither Uruguayan nor international law confers, on a trademark holder, an absolute right of use, that law confers an exclusive right to exclude third parties sufficient to constitute ‘property’ under the BIT.29 But, again relying on Uruguayan law experts, the tribunal ruled that that law protected only the ‘modalities’ of the use of trademarks. This was essential to its conclusion that limiting trademarks to only 20% of cigarette packs did not have a sufficiently ‘substantial’ impact to constitute a taking of property.30 Accounting experts were crucial to the tribunal’s determination that the SPR requirement did not substantially deprive the claimants of Abal’s business.31 The tribunal also relied on experts on the Uruguayan Constitution to conclude that the government had a ‘duty to protect public health’ that included, consistent with international police powers, the right to ‘prevent, limit or condition’ the use of tobacco trademarks.32 The same evidence concerning the rights of the Uruguayan state led to its conclusion that the claimants did not have their ‘legitimate expectations’ or interests in a stable legal framework violated.33 Prominent international lawyers—Stephen Schwebel, Jan Paulsson, Christopher Greenwood and Nico Schrijver—presented evidence on behalf of the respective parties on the meaning and contents of ‘denials of justice’. They opined on which party bears the burden of proof, whether such denials require demonstration of bad faith or malicious intent, how such denials comport with the BIT’s FET obligation and/or customary international law, and whether such claims require exhaustion of local remedies. The tribunal’s majority opinion emphasized that while the arbitrators were in broad agreement with how the denial of justice had been defined by the claimant’s experts, it indicated, citing to Greenwood’s expert opinion, that a denial of justice requires ‘clear evidence of … an outrageous failure of the judicial system’,34 but that, in accordance with Schrijver’s second expert opinion, ‘grave procedural errors’ may result in such a denial.35 It also agreed with Schrijver that claimants must show that they have exhausted local remedies or that such remedies are ‘obviously futile’.36 On the application of the law to the facts, the tribunal ultimately sided with the respondents’ experts who argued that no denial of justice had occurred since the two Uruguayan courts’ rulings were directed at distinct purposes, did not issue ‘contradictory’ rulings requiring a distinct remedy to reconcile them, and that these were features of the civil law tradition.37 The tribunal majority also found no error in the TCA’s failure to admit Abal’s submission of expert opinions by three prominent Uruguayan law experts. Relying, ironically enough, on the testimony of an expert on Uruguayan law, the Morris tribunal found the rejection of such testimony proper because: under Uruguayan procedural law, expert opinions on matters of law are not considered ‘expert evidence.’ To be considered evidence rather than assertions of a party, the expert opinion must relate to a question of fact and not a question of law and must have been prepared pursuant to an order of the court, neither of these requirements being met in this case. The TCA may disregard expert legal opinions not meeting these requirements. The Tribunal finds Professor Pereira’s opinion persuasive, as evidence also by his cross-examination at the Hearing making reference, inter alia, to the iura novit curia principle as the basis for disregarding expert legal opinions.38 This was a decidedly paradoxical twist for a tribunal that itself relied so heavily on legal experts in contradistinction from the iura novit curia principle. Gary Born’s separate concurring and dissenting opinion did not reject the admission of expert testimony in the case.39 Indeed, while Born’s shorter opinion does not often cite to expert testimony, his dissent on the majority’s findings on denial of justice also relies on the views of Uruguayan law experts.40 Further, Born’s dissenting view that the SPR violates Uruguay’s obligation to provide fair and equitable treatment elevates the significance of expertise for both a respondent state and an ICSID tribunal. Born disputes some of the conclusions reached in the WHO/FCTC and PAHO submissions; he does not agree that reputable scientific evidence supports banning all but one variant of a cigarette brand. To Born, the fact that the SPR was not ‘preceded by any meaningful internal study, discussions or deliberations at the Ministry of Public Health, or by other Uruguayan authorities’41 means that no deference is appropriate for a government measure that was an ‘unreflective directive, issued very hastily and without checks and validation that internal study and discussion and/or external notice and consultation provide’.42 In Born’s view, Article 3(2) of the BIT, and the ‘related requirements of reasonableness and proportionality, require an objective consideration of the extent to which a governmental measure is rationally related to, or fairly advances, the state’s articulated objectives’.43 He finds the SPR to be a blunt, over-inclusive and under-inclusive measure not supported by any real scientific or objective evidence indicating that brand variations alone, independent of the use of colors or labels indicating whether a product is ‘light’ or ‘low tar’, mislead consumers.44 3. WHAT ARE WE TO MAKE OF THE USE OF EXPERTS IN PHILIP MORRIS? The arbitrators’ use of experts in Philip Morris only gives lip service to some of the proposed ‘best practices’ indicated at the outset of this essay. The Philip Morris arbitrators did not formally delegate the ‘law ascertainment’ or ‘fact-finding’ function to experts but various experts in the case repeatedly opined about both national and international law and did not hesitate to draw the mixed law/fact conclusions that came exceedingly close to those that the tribunal itself was tasked with resolving. The Philip Morris tribunal, like most ISDS tribunals, did not apply the iura novit curia principle to disqualify legal experts (as would, apparently, Uruguayan courts). It treated testimony on national or international law as just another kind of evidence to be suitably weighed, with no indication of whether it was entitled to little weight or on the contrary, particular deference. Legal experts, along with health care professionals, accountants and specialists on both the marketing of tobacco and its control, opined on conflicting legal rules and purported to resolve conflicts among the considerable other evidence presented; endeavored to assist the tribunal in selecting from the available facts or evidence; and/or expressed views on the burdens of proof along with the weight of other evidence relative to applicable legal standards. All the arbitrators relied, sometimes heavily, on the various forms of expert evidence presented. Apart from demarcating ordinary ‘witness’ from ‘expert’ evidence, the tribunal did not clearly distinguish ‘fact-finding’ from ‘law ascertainment’ or mark either as exclusively its own domain.45 Uruguayan law experts expressed views about whether that law extended the ‘police power’ to protect health, protected the ‘use’ of trademarks, considered trademarks ‘property’, or enabled ‘contradictory’ decisions by national courts. International law experts opined on the meaning or import of international intellectual property law, the interpretation of FET and ‘arbitrary’ treatment, and the requisites of and burdens of proof applicable to denials of justice under customary international law. Such testimony was embraced if the tribunal thought it useful. Like other ISDS tribunals, the majority in Morris did not limit experts to giving evidence on the ‘physical and natural world’ gathered under accepted scientific methods such as observation and experiment as some would propose. Like other ISDS tribunals, it relied on experts even when they appeared to address topics well-known to the arbitrations (such as the requisites of denial of justice). Given the evidentiary practices of ISDS tribunals like Morris, what is one to make of proposals to use experts only to explain scientifically provable facts of the physical/natural world? US scholars of evidence can be forgiven if such proposals seem reminiscent of the turn, in US jurisprudence, from the Frye to the Daubert standard for deciding the admissibility of expert testimony. Under Frye vUnited States, US federal courts were instructed to find expert witness testimony inadmissible unless the principle on which they were testifying had gained ‘general acceptance’ within the scientific community.46 In Daubert vMerrell Drew Phamarceuticals, the US Supreme found this insufficiently rigorous. Interpreting the federal rules of evidence requiring relevancy and reliability, the Daubert Court found that expert testimony must ‘help the trier of fact to understand the evidence or determine a fact in issue’ and that to be properly admissible expert evidence should be the product of the ‘scientific method’. Under Daubert and subsequent cases involving ‘technical’ evidence and not only ‘scientific’ evidence, federal judges were urged to consider for purposes of admitting expert testimony whether there is evidence that the expert’s technique or theory can be tested in some objective sense or whether it is simply a subjective, conclusory approach that cannot be reasonably be assessed for reliability; whether the technique or theory has been subject to peer review and publication; what is the known or potential rate of error of the technique or theory when applied and whether there were standards and controls; as well as whether the technique or theory has been ‘generally accepted’ in the scientific community.47 This has come to be known as the ‘Daubert test’ for expert evidence. The evidence of neither the legal experts in the Morris case nor its ‘technical’ ones were subjected to the US-styled Daubert test. While some experts purportedly addressed the ‘physical and natural world’ (such as market research evidence on the effects on consumers of tobacco control efforts or professional estimates of the financial worth of Abal’s business), a considerable amount of expert evidence in that case addressed more subjective intangibles. Some drew conclusions about whether Uruguay was acting consistently ‘with the history of tobacco control efforts’ and therefore, in ‘good faith’, while others opined about whether the challenged measures were ‘proportionate’ or could be reasonably seen as ‘effective’. Strikingly, the amici on which the majority most strongly relied was in the form of non-party briefs that was not subjected to testing by the tribunal itself (as through cross-examination). And yet those views, expressed by public health or tobacco control experts, as well as those by a number of legal experts, were crucial to the tribunal’s own conclusions that the challenged measures were a valid good faith exercise of Uruguay’s ‘police powers’ for the protection of public health, were not disproportionate, and were not ‘arbitrary and unnecessary’ but ‘effective means to protecting public health’.48 Born, in dissent, seemed to be the arbitrator who appeared most influenced by the US-styled Daubert test. Born argued that Uruguay was wrong to delegate the scientific method to others; he argued that it was required, under FET, to itself test the assumptions underlying its SPR measures through scientific observation and experiment. Born essentially argued that the absence of scientific evidence to justify SPR violates FET, like Uruguay’s failure to provide a method to resolve directly contradictory judicial rulings, constitutes a denial of justice. Nonetheless, as Born’s other conclusions suggest (including his concurrence with the majority’s views on the 80/80 regulations), even he did not endorse a general rule that would limit the use of experts to those who would satisfy Daubert-styled tests. 4. PHILIP MORRIS AS EMBLEMATIC OF OTHER ISDS RULINGS While the sheer amount of expert evidence in Philip Morris was unusual, the kinds of expertise deployed by the parties, the manner in which law and fact merged, and the extent of the tribunal’s reliance on experts was not unique to that dispute. Many ISDS litigants (and ISDS tribunals) have turned to legal experts for assistance in determining the meaning of both national and international law.49 The meaning of all the traditional BIT guarantees have been the subject of innumerable expert opinions filed by international legal scholars, many of which have been cited by arbitrators.50 Most ISDS tribunals have also turned to marketing, accounting, or other industry-specific experts to assist them with respect to both factual and legal conclusions, including to determine whether a claimant suffered damage and if so to what extent. Insofar as the author is aware, there has not been a successful objection to evidence in these cases based on the contention that law ascertainment and related matters involve, as two ICJ judges have suggested, ‘exclusively judicial functions, such as the interpretation of legal terms, the legal categorization of factual issues, and the assessment of the burden of proof’.51 Insofar as the author knows, no ISDS award has been annulled on the basis that arbitrators have relied on experts presenting evidence on the contents of national or international law. On the contrary, one ICSID annulment committee annulled one of the Argentine rulings on the basis, in part, that the original panel had relied on the evidence of economists or financial experts and not the evidence of legal experts to determine whether Argentina properly satisfied the requisites of the ‘necessity’ defense.52 The acceptance and treatment of expert evidence might be seen as a further indictment of ISDS. It might add further fuel to oft-stated complaints that investor-state arbitrations wrongly empower party-appointed partisans who generate inconsistent treaty interpretations, fact-finding and outcomes.53 One could argue that investor-state arbitrators need greater direction and guidance than is now provided by, for example, the perfunctory ICSID rules concerning the admission of evidence. Some might see the sharp difference between the majority and Born in the Morris case as demonstrating that the relevant arbitral rules allocate too much discretion to arbitrators with respect to fact-finding, particularly since, once such facts are found, they are hard to review or displace. 5. THREE TENTATIVE CONCLUSIONS Putting those ISDS-specific concerns aside, three more general, albeit tentative, conclusions emerge. First, one might draw from the ISDS experience the lesson that although it may be analytically useful to distinguish law ascertainment, ordinary fact-finding, and the use of ‘scientific’ experts, in the real world of litigation, these categories are contestable and blur.54 This is certainly true insofar as national courts (and national evidentiary rules) differ on whether expert testimony on ‘foreign’ or international law engages matters of ‘fact’ or ‘law’. Such national laws and evidentiary traditions also differ on whether to define admissible ‘experts’ as only those who testify as to tangible facts grounded in ‘testable’ methods comparable to those applied under the scientific method. Secondly, the ways evidence is deployed in ISDS suggests that the handling of expert evidence is likely to vary with the peculiar institutional features of the adjudicative forum, including its procedural rules. A tribunal like the WTO Appellate Body, which can only address erroneous rulings of law, necessarily encourages reports by the WTO’s underlying panels that are particularly attentive to making law/fact distinctions. Arbitrations like those of ICSID that require distinct affirmations from ordinary and expert witnesses but otherwise leave evidentiary determinations to the discretion of the arbitrators and are subject to minimal forms of appeal rely on the laxer approach to such distinctions and to the admission of evidence evident in Philip Morris. The way evidence is used in ISDS suggests that institutional context matters. It suggests caution before assuming that the evidentiary practices (and premises) applicable in the ICJ should be applied to WTO panels and its Appellate Body, the International Criminal Court, regional human rights courts or investor-state arbitrators under distinct arbitration rules—or that a single set of ‘best practices’ can be applied to all of these. As the Philip Morris tribunal’s refusal to adopt for itself the principle of iura novit curia as applied in Uruguay courts suggests, caution also needs to be exercised about exporting the evidentiary practice of national courts (whether under the common law or civil law) to international courts or tribunals. Thirdly, although it is generally assumed that experts are used only to supply information that adjudicators do not possess or is that is beyond their expertise, cases like Philip Morris suggest that the reality of how experts are used in the course of adjudication is more complicated. Much of the expert evidence admitted and relied upon in that case addressed matters well within the ken of its learned arbitrators. Arbitrators like the three arbitrators involved in Philip Morris (who included a current ICJ judge) are representative of those who generally adjudicate investor-state disputes.55 Eminent adjudicators like these scarcely need lessons in the basic elements of the civil law or the subtleties of arbitrary treatment, FET or denial of justice. The arbitrators in Philip Morris could judge, at least as well as those who drafted the WHO/FCTC and PAHO briefs, which tobacco control measures are authorized by the FCTC Guidelines and the resulting legal implications. And yet, the Morris tribunal heard (and appeared to generally embrace) expert evidence on all of these topics. This suggests that expert evidence in cases like Philip Morris is valued not only because it fills gaps in expertise. It is admitted and used—as the Philip Morris tribunal itself suggested—because it is seen as relatively ‘objective’. Evidence as to both facts and the law such as that presented by tobacco control experts or legal scholars were accorded close scrutiny and (often) great weight because it appeared to contain knowledge or data that had some independent standing from either the parties or the tribunal—and not because (or only because) it supplied ‘scientific’ or technical data unfamiliar to lawyer-adjudicators.56 Expert evidence in Philip Morris and other ISDS cases is accepted and used insofar as it reflects, as the ICSID affirmation for experts requires, the ‘genuine beliefs’ of persons with some independent credibility because of their institutional affiliations, academic reputations, or simply considered judgment. This seems paradoxical. Aren’t ICSID arbitrators the bearers of objectivity, like all national and international judges? Why should they need to buttress (or out-source) this quality, including to experts named by the parties or to organizations disposed to a given outcome (such as tobacco control)? Those now criticizing ISDS for its alleged ‘biases’ may have answers. Perhaps the demand for objective information—and for its objective evaluation—exceeds that which can be supplied by party-appointed arbitrators in ad hoc tribunals that are increasingly subject to legitimacy deficits (real or imagined). It appears that ISDS tribunals’ appetite for expert evidence of all kinds is part and parcel of a ceaseless (if perhaps futile) quest for objectivity. Footnotes 1 Jean d’Aspremont and Makane Moïse Mbengue, ‘Strategies of Engagement with Scientific Fact-Finding in International Adjudication’ (2014) 5 J Intl Dispute Settlement 240. 2 ibid. 3 See eg, Durward V Sandifer, Evidence Before International Tribunals (Revised ed, University of Virginia 1975) 382–402 (discussing factual propositions that are subject to judicial notice). 4 See James Flett, ‘When is an Expert not an Expert?’ (2018) 9 JIDS. 5 See, eg, Jean d’Aspremont and Makane Moïse Mbengue, ‘Strategies of Engagement with Scientific Fact-Finding in International Adjudication’ (2014) 5 JIDS 240–72. 6 But see discussion of Kumbo Tire vCarmichael (n 45 infra) where the US Supreme Court expanded the definition of ‘scientific’ experts to include those with merely ‘technical’ expertise. If one rejects that Court’s view, quantum experts, for example, might not be included as ‘scientific experts’. 7 Compare Jonathan Bonnitcha, Lauge N Skovgarrd Poulsen, and Michael Waibel, The Political Economy of the Investment Treaty Regime (OUP 2017) 25 Figure 1.7 (numbers of ISDS arbitrations) to Karen J Alter, The New Terrain of International Law (PUP 2014) 72–75 Figure 3.1 (numbers of rulings issued in other international courts and tribunals). 8 See, eg, Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS467/22 (21 September 2017). 9 Philip Morris Brands Sàrl, Philip Morris Products SAand Abal Hermanos SAvOriental Republic of Uruguay, ICSID Case No ARB/10/7, Award (8 July 2016) (henceforth ‘Morris’). 10 ibid, paras 10–11. 11 ibid, para 483. 12 ibid, para 13. 13 Philip Morris Brands Sàrl, Philip Morris Products SAand Abal Hermanos SAvOriental Republic of Uruguay, ICSID Case No ARB/10/7, Concurring and Dissenting Opinion of Gary Born, paras 4–5 (henceforth ‘Born opinion’). 14 The ICSID Arbitration Rules, like those applicable to other arbitral settings, contain few limits on the powers of arbitrators with respect to the admission or weight to be given evidence. See, eg, ICSID Rules of Procedure for Arbitration Proceedings (‘ICSID Arbitration Rules’) (April 2006) r 34, which contains an open delegation of authority to ICSID arbitrators to ‘be the judge of the admissibility of any evidence adduced and of its probative value’. Those rules do not direct the arbitrators to apply any particular standard of proof to distinct forms of evidence nor any suggestion that the evidentiary rules of the arbitral forum should apply. 15 ICSID Arbitration Rule 35. That rule provides that witnesses need to make the following declaration before giving evidence ‘I solemnly declare upon my honour and conscience that I shall speak the truth, the whole truth and nothing but the truth’. Experts, however, must state ‘I solemnly declare upon my honour and conscience that my statement will be in accordance with my sincere belief’. 16 Much of this evidence was in the form of ‘market research’. See, eg, Morris (n 6), para 331 (noting the claimant’s marketing experts’ evidence that the level of tobacco consumption did not decrease as a result of the SPR); para 337 (citing the claimants’ expert reports indicating no evidence that the introduction of larger health warnings, as under the 80/80 regulation, increased awareness of smoking risks or reduces tobacco consumption). But the tribunal did, on occasion, rely heavily on market specialists such as Euromonitor. See, eg, ibid, paras 149–51 (drawing on Euromonitor data to contend that Abal’s market share of the Uruguayan market was adversely affected by the introduction of the SPR and to suggest that Uruguay’s two measures increased the level of illicit trade in cigarettes). 17 See, eg, ibid, paras 141–2. See also, para 306. See also Written Submission (Amicus Curiae Brief) by the World Health Organization and the WHO Framework Convention on Tobacco Control Secretariat, 28 January 2015, submitted in Morris (n 9), paras 25–27, 39–40 [henceforth ‘WHO/FCTC Amicus’]. 18 Morris (n 9), para 371. See also, para 391 (quoting some of the WHO/FCTC and PAHO conclusions cited by the respondent). 19 ibid para 391. 20 ibid para 392. 21 ibid paras 393–4. See also, para 396 (concluding that ‘in these circumstances there was no requirement for Uruguay to perform additional studies or to gather further evidence in support of the Challenged Measures’). 22 ibid, para 401 (citing the FCTC as ‘a point of reference on the basis of which to determine the reasonableness of the two measures’). 23 ibid, para 407 (quoting the WHO/FCTC Amicus). See also WHO/FCTC Amicus (n 14), para 90 (concluding that the evidence ‘supports the conclusion that the Uruguay’s measures in question are effective means of protecting public health’). 24 ibid paras 408–09. 25 ibid para 409. 26 ibid para 417. 27 ibid para 420. See also, paras 418–19. 28 ibidparas 202–09 (claimants’ use of intellectual property experts); paras 222–34 (respondent’s use of experts to rebut the claim that intellectual property recognizes a right to use); paras 235–74 (evaluating the competing experts’ claims on whether the relevant law (national and international) confers a right to ‘use’ and whether, irrespective of that, a trademark is a ‘property right’ under Uruguayan law that can be judged as an ‘expropriation’). 29 ibid para 271; paras 272–4. 30 ibid para 276. A comparable analysis, presumably also influenced by the underlying expert evidence on what Uruguay law protects, appears to underlie the tribunal’s conclusion that the trademarks were not ‘commitments’ protected by art 11 of the BIT. ibid, paras 473–82. 31 ibid paras 281–6. 32 ibid para 302 (quoting from one of the Respondent’s experts). 33 ibid paras 432–4. 34 ibid para 500. 35 ibid para 501. 36 ibid para 403 (quoting Schrijver’s opinion). 37 ibid paras 522–4; paras 529–30. The majority also drew support from the ECtHR ruling in Jejdet Sahin & Perihan Sahin vTurkey. ibid, para 531, fn 755 (acknowledging that its reliance on the Nejdet case was drawn from Schrijver’s second expert opinion). See also ibid, para 533 (citing in further support for its conclusion Paulsson opinion that ‘the vagaries of legal culture that enrich the world are to be respected’). 38 ibid, para 564. 39 Indeed, Born agreed with the majority with respect to Uruguay’s 80/80 regulation, including presumably the majority’s reliance on legal and other experts for its conclusions. Born opinion, para 1. 40 Born opinion, paras 14–16, fn 10–17; para 32, fn 31; para 34, fn 34. Born also relies heavily on legal experts to support his conclusion that Abal had indeed exhausted its local remedies. See Born opinion, para 37, fn 40; para 38, fn 43–44. 41 Born opinion, para 108. See also, para 126. 42 ibid para 128. 43 ibid para 144. Born argues that the obligation to accord fair and equitable treatment ‘necessarily connotes a measure of proportionality’. Although related, the requirement of proportionality differs from that of rationality or reasonableness. Proportionality involves an analysis of the legitimacy of a measure’s objective and whether a measure is both necessary and suitable for that objective, while reasonableness or arbitrariness focus primarily on the relationship between the measure and investor’s rights. Born opinion, para 139, fn 145. 44 Born opinion, paras 157–62 (noting that the SPR requirement is over-inclusive insofar as it prohibits sales of brands that do not mislead consumers and is also under-inclusive insofar as it does not bar the sale of different brands or ‘alibi brands’ that may indeed mislead consumers). 45 Indeed, the Philip Morris arbitrators, who drew so heavily on the facts that they were given by the relevant experts—for some examples, see (n 16)—were hardly in a position to declare that fact-finding was exclusively the adjudicator’s function. 46 Frye vUnited States, 293 F 1013 (DC Cir 1923). 47 Daubert vMerrell Dow Pharms, Inc, 509 US 579 (1993). In Kumbo Tire CovCarmichael, 526 US 137 (1999), the Court extended the Daubert test to ‘technical, or other specialized knowledge’, thereby suggesting that the admissibility of evidence based on the ‘soft sciences’ (such as economics and psychology) should also be based on ‘the same level of intellectual rigor that characterizes the practice of an expert in the relevant field’. Tire, at 152. Since the relevant evidence rule (Rule 702) drew no such distinctions, the Kumbo Court found that while trial court judges enjoy considerable discretion in how they apply the Daubert factors, there is no relevant difference between experts who rely on scientific principles and those who rely on ‘skill- or experience-based observation’ and it was therefore not improper for a judge to consider such factors to the testimony of an expert in tire failure analysis. 48 Morris (n 9), para 306 (citing to the amicus briefs filed by WHO/FCTC and PAHO). See also, para 307. 49 Indeed, some experts have opined in the course of ISDS disputes on both national law and international law as well as the relationship between the two. See, eg, Metalpar vArgentina, ICSID Case No ARB/03/5, Expert Report of Benedict Kingsbury (15 August 2006). 50 Other ISDS disputes have included, for example, legal experts testifying on the existence or contents of the rules of state responsibility to aliens as well as expert reports on the applicability of exhaustion of local remedies to denials of justice. See, eg, in Loewen Group, Incand Raymond LLoewen vUnited States of America, ICSID Case No ARB(AF)/98/3, the Opinion of Sir Robert Jennings (26 October 1998); Loewen Group, Incand Raymond LLoewen vUnited States of America, ICSID Case No ARB(AF)/98/3, Statement of Claim, (30 October 1998) <http://naftaclaims.com/disputes/usa/Loewen/Loewen%20-%20Notice%20of%20Arbitration%20-%20Jennings%20Opinion%20-%2030-10-98.pdf> accessed 10 April 2018. Indeed, the well-known Argentine disputes that focused on the legality of Argentina’s Emergency Measures under the ‘measures not precluded’ clause of the US–Argentine BIT were replete with legal experts on the meaning of that clause, the underlying customary defense of ‘necessity’, and the application of each of those legal standards in the Argentine context. See, eg, in Sempra Energy International & Camuzzi International and the Republic of Argentina, ICSID Case No ARB/02/16 and ARB/03/02, the Opinion of José E Alvarez (12 September 2005) and in Sempra Energy International & Camuzzi International vRepublic of Argentina, ICSID Case No ARB/03/02 the Witness Statement of Anne-Marie Slaughter and William Burke-White (2 December 2005). 51 Pulp Mills on the River Uruguay (Argentina vUruguay) (Joint Dissenting Opinion of Judges Al-Khasawneh and Simma) ICJ Rep 2010, paras 3–5; para 12. 52 Enron Creditors Recovery CorpvArgentine Republic, ICSID Case No ARB/01/3, Decision on the Application of Annulment of the Argentine Republic (30 July 2010), paras 391–3. 53 For a summary of these and other critiques, see, eg, Bonnitcha, Skovgarrd, and Waibel (n 7) 233–60. 54 See, eg, Richard B Bilder, ‘The Fact/Law Distinction in International Adjudication’, in Richard B Lillich (ed) Fact-Finding Before International Tribunals (Transnational 1992) 95. 55 See, eg, Joost Pauwelyn, ‘The Rule of Law Without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators from Venus’ (2015) 109 AJIL 109. 56 For a fascinating exposition of the development of modern conceptions of ‘objectivity’, defining this quality as involving the suppression of some aspect of the self and therefore in counterpoint to its opposite, ‘subjectivity’, see Orraine Daston and Peter Galison, Objectivity (Zone Books 2007) 36. © 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

The Search for Objectivity: The Use of Experts in Philip Morris v Uruguay

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Abstract

Abstract This essay uses a prominent ICSID arbitral ruling to explore the prospects for developing ‘best practices’ for handling expert evidence in international adjudication. It argues that the treatment of evidence responds to institutional context and explains why investor-state arbitrations take a lax approach to admitting and relying on many forms of expertise. Their penchant for relying on experts—including legal experts opining on matters familiar to the arbitrators—casts doubt on the proposition that experts should testify only with respect to scientifically provable matters that are beyond the ken of adjudicators. 1. INTRODUCTION A number of participants at the conference that launched the essays in this Journal have argued in favour of general rules or a common framework of ‘best practices’ for dealing with scientific evidence in international adjudication. This appears to respond to the perceived risks of ‘fragmentation’ among today’s diverse international courts and tribunals. Coherent substantive jurisprudence is seen as more likely if common rules were to develop with respect to the use of experts in all such forums. It was proposed that such rules should be built around a consensus, first, that ‘law ascertainment’ should be clearly distinguished from both fact-finding and the use of ‘scientific evidence’.1 Secondly, it was suggested that this demarcation of tasks should define the roles of participants in international adjudication. Consistent with the principle of iura novit curia, arbitrators or judges are said to be entrusted with the exclusive prerogative to engage in law ascertainment; similarly, only they can identify, clarify or interpret the law to be applied and apply that law to the facts.2 While the litigants frame legal claims and develop legal arguments, adjudicators, not counsel, determine the law. Ordinary witnesses, not to be confused with those with specialized knowledge known as experts, only make representations about the veracity of facts. Experts, who do not engage in the ascertainment of law or in the establishment of ordinary facts, also do not: opine on conflicting legal rules or facts presented by the litigants, resolve conflicts among other evidence (such as those presented by non-litigating governments or other experts), assist the tribunal in selecting facts not subject to proof,3 address the relative weight of evidence, or authenticate evidence.4 While scientific experts might be used, for example, to help determine whether a document is forged; authentication—like all determinations of fact, law, and the application of one to the other—are ultimately matters for the adjudicator who, consistent with the rule of law, should not ‘out-source’ this role to others. Under this strictly delimited role (with which this author disagrees as discussed below), experts are properly deployed only to assist an adjudicator’s understanding of matters that, due to their technical or specialized nature, are beyond their ken. In this view, scientific experts play a decidedly restrictive role: they help non-experts in the litigation, most importantly the adjudicators, to understand the structure and behavior of the ‘physical and natural world’ through the application of accepted scientific methods such as observation and experiment.5 The need to make sure that expert evidence is ‘scientifically responsible’ may itself determine what is meant by a ‘scientific expert’. If such experts are limited to those who deploy methods of the type and rigor deployed in the hard sciences, that alone serves to distinguish them from those who opine on other matters (such as the quantum of damage or the requirements of the law) who do not use such methods.6 This essay examines the extensive use of expert evidence in the ICSID Award in Philip Morris vUruguay to indicate how experts are actually being used in investor-state dispute settlement (ISDS), one of the most prominent forums for resolving international disputes. As of the end of 2016, over 700 known investor-treaty arbitrations had been initiated, thereby rivaling the numbers of interstate claims pursued in the WTO and exceeding those heard by the ICJ.7 If ‘best practices’ with respect to expert evidence are to emerge, it is important to know what such practices now are among high profile investor-state cases, such as Philip Morris vUruguay. 2. THE USE OF EXPERTS IN PHILIP MORRIS V URUGUAY This highly publicized dispute, one of a number involving challenges to tobacco control measures being heard before ICSID tribunals as well as in the WTO,8 addressed a complaint brought by Philip Morris, a Swiss company, along with its wholly owned Uruguayan subsidiary, Abal, against the government of Uruguay under the Swiss-Uruguayan BIT of 1991.9 The claimants argued that Uruguay had violated the BIT’s Article 3(1) (barring impairment of the use and enjoyment of investments), 3(2) (guaranteeing fair and equitable treatment and prohibiting denials of justice), 5 (providing for compensation in cases of expropriation), and/or 11 (granting observance of commitments), by precluding tobacco manufacturers from marketing more than one variant of cigarette per brand family (Uruguay’s ‘Single Presentation Requirement’ or ‘SPR’), by increasing the size of graphic health warnings appearing on the front and back of cigarette packs to 80%, leaving only 20% for trademarks and other information (its ‘80/80 regulation’), and by the treatment accorded the claimants in Uruguayan courts. Philip Morris argued that the SPR adversely impacted the value of its subsidiary and that the 80/80 regulation wrongfully limited Abal’s right to use its legally protected trademarks, a form of protected investment.10 The claimants further argued that two Uruguayan courts, the Supreme Court of Justice and the Tribunal de lo Contencioso Administrativo (TCA), denied justice to them insofar as the two rendered unreviewable, contradictory rulings and because the TCA had ignored certain proffered evidence.11 Uruguay defended its actions as non-discriminatory measures taken to protect public health consistent with its international commitments, particularly the WHO Framework Convention on Tobacco Control (FCTC). It argued that it adopted the SPR to mitigate the adverse effects of tobacco promotion (including misleading marketing suggesting that certain brand variants were ‘safer’) and its 80/80 regulation to increase consumer awareness of the health risks of smoking.12 By majority vote, the three person ICSID tribunal, consisting of Chair Piero Bernardini, Gary Born and James Crawford, dismissed all the investors’ claims and awarded Uruguay $7 million to cover part of its costs in the litigation. Arbitrator Born, concurring with much of the award, dissented on two aspects. He would have upheld the claim for denial of justice based on the ‘contradictory’ actions of the two Uruguayan courts as well as the claim that the SPR was a manifestly arbitrary and disproportionate measure in violation of the BIT’s FET provision.13 The Morris dispute relied heavily on evidence presented by ordinary witnesses as well as distinct ‘experts’, including experts on law, on the marketing of cigarettes and on public health. In accordance with the governing ICSID arbitration rules, the arbitrators enjoyed wide discretion on the treatment of evidence.14 In accordance with those rules, which differentiate the affirmations made by ordinary witnesses and experts, the Morris ruling distinguished ‘witness’ from ‘expert’ reports—while relying heavily on both throughout and not suggesting any general rule about the relative weight to be accorded each.15 Like a number of ISDS cases, the dispute generated considerable public interest and elicited amici from the WHO (joined by the Secretariat of the FCTC) as well as by the Pan American health Organization (PAHO), both in support of Uruguay’s position. Although not classified as such by the tribunal, the WHO/FCTA and PAHO briefs were treated as a form of expert evidence; as discussed below, the tribunal treated both amici as evincing public health expertise. The Morris tribunal first made reference to expert testimony for purposes of describing the domestic regulatory framework. It next turned to experts, as well as ordinary factual witnesses, to resolve disputed questions over Uruguay’s motivations for its tobacco control measures and their effects on consumers. In the face of conflicting evidence on the impact of Uruguay’s measures,16 the tribunal drew on the WHO/FCTC and PAHO briefs for its conclusion that Uruguay’s SPR and 80/80 measures were supported by the ‘international public health community’ and relate (if modestly) to ‘consistent decreases in smoking’ in that country.17 Suggestions made by the amici that the SPR was grounded in a substantial body of evidence and that the 80/80 regulations were reasonable and responsible responses to deceptive advertising practices in the industry were relied upon by the tribunal to rebut the contention that the challenged measures were ‘arbitrary’.18 The tribunal majority found a connection between the objective pursued by the state and the utility of the two measures because, in part, this had been ‘recognized by the WHO and the PAHO Amicus Briefs, which contain a thorough analysis of the history of tobacco control and the measures adopted to that effect.’19 In response to the claim that Uruguay’s measures did not enhance knowledge about the well-known health risks of smoking, the tribunal cited empirical evidence to the contrary from other experts, including ‘numerous scientific studies’ cited by the US Surgeon General and the US National Cancer Institute.20 In response to the claim that Uruguay did not conduct its own scientific studies of the effects of its tobacco control measures, the tribunal again resorted to the WTO/FCTC and PAHO amici which indicated that Uruguay had been one of the most active FCTC participants, by way of suggesting that a country with limited technical and economic resources was entitled to rely on the exchange of ‘evidence-based’ public information generated by resources like the FCTC and its Guidelines.21 The views of tobacco control experts, particularly those within the WTO/FCTC and PAHO, were similarly determinative on whether Uruguay’s two measures were otherwise a violation of FET.22 Although Uruguay’s SPR measure had not been the subject of prior research concerning its effects, the tribunal found it not to violate the FET because, ‘as held by the WHO, “the rationale for this action [was] supported by the evidence’.23 Acknowledging that marketing data on the effects of the SPR was ‘discordant’, the majority found that it was not necessary to decide whether the SPR had the effects intended but only whether it was ‘reasonable’ for Uruguay to so assume.24 Consistent with respondent’s experts and the WHO/FCTA and PAHO amici, the majority found that the SPR ‘was an attempt to address a real public health concern, that the measure was not disproportionate to that concern and that it was adopted in good faith’.25 Its finding on the 80/80 regulation was nearly identical except that in that instance the tribunal was also able to rely on marketing experts who indicated that the increased size of health warnings appeared to relate to increased numbers of consumers inclined to quit smoking.26 Accordingly, the tribunal found that the 80/80 measure was ‘adopted in good faith to implement an obligation assumed by the State under the FCTC’.27 Experts who opined on national and international law were repeatedly deployed. The litigants turned to experts on intellectual property law to address the allegedly distinctive character of registered trademarks and to opine on whether the TRIPs Agreement or Uruguayan law protects the right to ‘use’ trademarks. Such experts also addressed whether such rights constitute ‘property’ that can be subject to ‘expropriation’.28 The tribunal heavily relied on what it perceived to be common ground among these experts, relying on them to conclude that while neither Uruguayan nor international law confers, on a trademark holder, an absolute right of use, that law confers an exclusive right to exclude third parties sufficient to constitute ‘property’ under the BIT.29 But, again relying on Uruguayan law experts, the tribunal ruled that that law protected only the ‘modalities’ of the use of trademarks. This was essential to its conclusion that limiting trademarks to only 20% of cigarette packs did not have a sufficiently ‘substantial’ impact to constitute a taking of property.30 Accounting experts were crucial to the tribunal’s determination that the SPR requirement did not substantially deprive the claimants of Abal’s business.31 The tribunal also relied on experts on the Uruguayan Constitution to conclude that the government had a ‘duty to protect public health’ that included, consistent with international police powers, the right to ‘prevent, limit or condition’ the use of tobacco trademarks.32 The same evidence concerning the rights of the Uruguayan state led to its conclusion that the claimants did not have their ‘legitimate expectations’ or interests in a stable legal framework violated.33 Prominent international lawyers—Stephen Schwebel, Jan Paulsson, Christopher Greenwood and Nico Schrijver—presented evidence on behalf of the respective parties on the meaning and contents of ‘denials of justice’. They opined on which party bears the burden of proof, whether such denials require demonstration of bad faith or malicious intent, how such denials comport with the BIT’s FET obligation and/or customary international law, and whether such claims require exhaustion of local remedies. The tribunal’s majority opinion emphasized that while the arbitrators were in broad agreement with how the denial of justice had been defined by the claimant’s experts, it indicated, citing to Greenwood’s expert opinion, that a denial of justice requires ‘clear evidence of … an outrageous failure of the judicial system’,34 but that, in accordance with Schrijver’s second expert opinion, ‘grave procedural errors’ may result in such a denial.35 It also agreed with Schrijver that claimants must show that they have exhausted local remedies or that such remedies are ‘obviously futile’.36 On the application of the law to the facts, the tribunal ultimately sided with the respondents’ experts who argued that no denial of justice had occurred since the two Uruguayan courts’ rulings were directed at distinct purposes, did not issue ‘contradictory’ rulings requiring a distinct remedy to reconcile them, and that these were features of the civil law tradition.37 The tribunal majority also found no error in the TCA’s failure to admit Abal’s submission of expert opinions by three prominent Uruguayan law experts. Relying, ironically enough, on the testimony of an expert on Uruguayan law, the Morris tribunal found the rejection of such testimony proper because: under Uruguayan procedural law, expert opinions on matters of law are not considered ‘expert evidence.’ To be considered evidence rather than assertions of a party, the expert opinion must relate to a question of fact and not a question of law and must have been prepared pursuant to an order of the court, neither of these requirements being met in this case. The TCA may disregard expert legal opinions not meeting these requirements. The Tribunal finds Professor Pereira’s opinion persuasive, as evidence also by his cross-examination at the Hearing making reference, inter alia, to the iura novit curia principle as the basis for disregarding expert legal opinions.38 This was a decidedly paradoxical twist for a tribunal that itself relied so heavily on legal experts in contradistinction from the iura novit curia principle. Gary Born’s separate concurring and dissenting opinion did not reject the admission of expert testimony in the case.39 Indeed, while Born’s shorter opinion does not often cite to expert testimony, his dissent on the majority’s findings on denial of justice also relies on the views of Uruguayan law experts.40 Further, Born’s dissenting view that the SPR violates Uruguay’s obligation to provide fair and equitable treatment elevates the significance of expertise for both a respondent state and an ICSID tribunal. Born disputes some of the conclusions reached in the WHO/FCTC and PAHO submissions; he does not agree that reputable scientific evidence supports banning all but one variant of a cigarette brand. To Born, the fact that the SPR was not ‘preceded by any meaningful internal study, discussions or deliberations at the Ministry of Public Health, or by other Uruguayan authorities’41 means that no deference is appropriate for a government measure that was an ‘unreflective directive, issued very hastily and without checks and validation that internal study and discussion and/or external notice and consultation provide’.42 In Born’s view, Article 3(2) of the BIT, and the ‘related requirements of reasonableness and proportionality, require an objective consideration of the extent to which a governmental measure is rationally related to, or fairly advances, the state’s articulated objectives’.43 He finds the SPR to be a blunt, over-inclusive and under-inclusive measure not supported by any real scientific or objective evidence indicating that brand variations alone, independent of the use of colors or labels indicating whether a product is ‘light’ or ‘low tar’, mislead consumers.44 3. WHAT ARE WE TO MAKE OF THE USE OF EXPERTS IN PHILIP MORRIS? The arbitrators’ use of experts in Philip Morris only gives lip service to some of the proposed ‘best practices’ indicated at the outset of this essay. The Philip Morris arbitrators did not formally delegate the ‘law ascertainment’ or ‘fact-finding’ function to experts but various experts in the case repeatedly opined about both national and international law and did not hesitate to draw the mixed law/fact conclusions that came exceedingly close to those that the tribunal itself was tasked with resolving. The Philip Morris tribunal, like most ISDS tribunals, did not apply the iura novit curia principle to disqualify legal experts (as would, apparently, Uruguayan courts). It treated testimony on national or international law as just another kind of evidence to be suitably weighed, with no indication of whether it was entitled to little weight or on the contrary, particular deference. Legal experts, along with health care professionals, accountants and specialists on both the marketing of tobacco and its control, opined on conflicting legal rules and purported to resolve conflicts among the considerable other evidence presented; endeavored to assist the tribunal in selecting from the available facts or evidence; and/or expressed views on the burdens of proof along with the weight of other evidence relative to applicable legal standards. All the arbitrators relied, sometimes heavily, on the various forms of expert evidence presented. Apart from demarcating ordinary ‘witness’ from ‘expert’ evidence, the tribunal did not clearly distinguish ‘fact-finding’ from ‘law ascertainment’ or mark either as exclusively its own domain.45 Uruguayan law experts expressed views about whether that law extended the ‘police power’ to protect health, protected the ‘use’ of trademarks, considered trademarks ‘property’, or enabled ‘contradictory’ decisions by national courts. International law experts opined on the meaning or import of international intellectual property law, the interpretation of FET and ‘arbitrary’ treatment, and the requisites of and burdens of proof applicable to denials of justice under customary international law. Such testimony was embraced if the tribunal thought it useful. Like other ISDS tribunals, the majority in Morris did not limit experts to giving evidence on the ‘physical and natural world’ gathered under accepted scientific methods such as observation and experiment as some would propose. Like other ISDS tribunals, it relied on experts even when they appeared to address topics well-known to the arbitrations (such as the requisites of denial of justice). Given the evidentiary practices of ISDS tribunals like Morris, what is one to make of proposals to use experts only to explain scientifically provable facts of the physical/natural world? US scholars of evidence can be forgiven if such proposals seem reminiscent of the turn, in US jurisprudence, from the Frye to the Daubert standard for deciding the admissibility of expert testimony. Under Frye vUnited States, US federal courts were instructed to find expert witness testimony inadmissible unless the principle on which they were testifying had gained ‘general acceptance’ within the scientific community.46 In Daubert vMerrell Drew Phamarceuticals, the US Supreme found this insufficiently rigorous. Interpreting the federal rules of evidence requiring relevancy and reliability, the Daubert Court found that expert testimony must ‘help the trier of fact to understand the evidence or determine a fact in issue’ and that to be properly admissible expert evidence should be the product of the ‘scientific method’. Under Daubert and subsequent cases involving ‘technical’ evidence and not only ‘scientific’ evidence, federal judges were urged to consider for purposes of admitting expert testimony whether there is evidence that the expert’s technique or theory can be tested in some objective sense or whether it is simply a subjective, conclusory approach that cannot be reasonably be assessed for reliability; whether the technique or theory has been subject to peer review and publication; what is the known or potential rate of error of the technique or theory when applied and whether there were standards and controls; as well as whether the technique or theory has been ‘generally accepted’ in the scientific community.47 This has come to be known as the ‘Daubert test’ for expert evidence. The evidence of neither the legal experts in the Morris case nor its ‘technical’ ones were subjected to the US-styled Daubert test. While some experts purportedly addressed the ‘physical and natural world’ (such as market research evidence on the effects on consumers of tobacco control efforts or professional estimates of the financial worth of Abal’s business), a considerable amount of expert evidence in that case addressed more subjective intangibles. Some drew conclusions about whether Uruguay was acting consistently ‘with the history of tobacco control efforts’ and therefore, in ‘good faith’, while others opined about whether the challenged measures were ‘proportionate’ or could be reasonably seen as ‘effective’. Strikingly, the amici on which the majority most strongly relied was in the form of non-party briefs that was not subjected to testing by the tribunal itself (as through cross-examination). And yet those views, expressed by public health or tobacco control experts, as well as those by a number of legal experts, were crucial to the tribunal’s own conclusions that the challenged measures were a valid good faith exercise of Uruguay’s ‘police powers’ for the protection of public health, were not disproportionate, and were not ‘arbitrary and unnecessary’ but ‘effective means to protecting public health’.48 Born, in dissent, seemed to be the arbitrator who appeared most influenced by the US-styled Daubert test. Born argued that Uruguay was wrong to delegate the scientific method to others; he argued that it was required, under FET, to itself test the assumptions underlying its SPR measures through scientific observation and experiment. Born essentially argued that the absence of scientific evidence to justify SPR violates FET, like Uruguay’s failure to provide a method to resolve directly contradictory judicial rulings, constitutes a denial of justice. Nonetheless, as Born’s other conclusions suggest (including his concurrence with the majority’s views on the 80/80 regulations), even he did not endorse a general rule that would limit the use of experts to those who would satisfy Daubert-styled tests. 4. PHILIP MORRIS AS EMBLEMATIC OF OTHER ISDS RULINGS While the sheer amount of expert evidence in Philip Morris was unusual, the kinds of expertise deployed by the parties, the manner in which law and fact merged, and the extent of the tribunal’s reliance on experts was not unique to that dispute. Many ISDS litigants (and ISDS tribunals) have turned to legal experts for assistance in determining the meaning of both national and international law.49 The meaning of all the traditional BIT guarantees have been the subject of innumerable expert opinions filed by international legal scholars, many of which have been cited by arbitrators.50 Most ISDS tribunals have also turned to marketing, accounting, or other industry-specific experts to assist them with respect to both factual and legal conclusions, including to determine whether a claimant suffered damage and if so to what extent. Insofar as the author is aware, there has not been a successful objection to evidence in these cases based on the contention that law ascertainment and related matters involve, as two ICJ judges have suggested, ‘exclusively judicial functions, such as the interpretation of legal terms, the legal categorization of factual issues, and the assessment of the burden of proof’.51 Insofar as the author knows, no ISDS award has been annulled on the basis that arbitrators have relied on experts presenting evidence on the contents of national or international law. On the contrary, one ICSID annulment committee annulled one of the Argentine rulings on the basis, in part, that the original panel had relied on the evidence of economists or financial experts and not the evidence of legal experts to determine whether Argentina properly satisfied the requisites of the ‘necessity’ defense.52 The acceptance and treatment of expert evidence might be seen as a further indictment of ISDS. It might add further fuel to oft-stated complaints that investor-state arbitrations wrongly empower party-appointed partisans who generate inconsistent treaty interpretations, fact-finding and outcomes.53 One could argue that investor-state arbitrators need greater direction and guidance than is now provided by, for example, the perfunctory ICSID rules concerning the admission of evidence. Some might see the sharp difference between the majority and Born in the Morris case as demonstrating that the relevant arbitral rules allocate too much discretion to arbitrators with respect to fact-finding, particularly since, once such facts are found, they are hard to review or displace. 5. THREE TENTATIVE CONCLUSIONS Putting those ISDS-specific concerns aside, three more general, albeit tentative, conclusions emerge. First, one might draw from the ISDS experience the lesson that although it may be analytically useful to distinguish law ascertainment, ordinary fact-finding, and the use of ‘scientific’ experts, in the real world of litigation, these categories are contestable and blur.54 This is certainly true insofar as national courts (and national evidentiary rules) differ on whether expert testimony on ‘foreign’ or international law engages matters of ‘fact’ or ‘law’. Such national laws and evidentiary traditions also differ on whether to define admissible ‘experts’ as only those who testify as to tangible facts grounded in ‘testable’ methods comparable to those applied under the scientific method. Secondly, the ways evidence is deployed in ISDS suggests that the handling of expert evidence is likely to vary with the peculiar institutional features of the adjudicative forum, including its procedural rules. A tribunal like the WTO Appellate Body, which can only address erroneous rulings of law, necessarily encourages reports by the WTO’s underlying panels that are particularly attentive to making law/fact distinctions. Arbitrations like those of ICSID that require distinct affirmations from ordinary and expert witnesses but otherwise leave evidentiary determinations to the discretion of the arbitrators and are subject to minimal forms of appeal rely on the laxer approach to such distinctions and to the admission of evidence evident in Philip Morris. The way evidence is used in ISDS suggests that institutional context matters. It suggests caution before assuming that the evidentiary practices (and premises) applicable in the ICJ should be applied to WTO panels and its Appellate Body, the International Criminal Court, regional human rights courts or investor-state arbitrators under distinct arbitration rules—or that a single set of ‘best practices’ can be applied to all of these. As the Philip Morris tribunal’s refusal to adopt for itself the principle of iura novit curia as applied in Uruguay courts suggests, caution also needs to be exercised about exporting the evidentiary practice of national courts (whether under the common law or civil law) to international courts or tribunals. Thirdly, although it is generally assumed that experts are used only to supply information that adjudicators do not possess or is that is beyond their expertise, cases like Philip Morris suggest that the reality of how experts are used in the course of adjudication is more complicated. Much of the expert evidence admitted and relied upon in that case addressed matters well within the ken of its learned arbitrators. Arbitrators like the three arbitrators involved in Philip Morris (who included a current ICJ judge) are representative of those who generally adjudicate investor-state disputes.55 Eminent adjudicators like these scarcely need lessons in the basic elements of the civil law or the subtleties of arbitrary treatment, FET or denial of justice. The arbitrators in Philip Morris could judge, at least as well as those who drafted the WHO/FCTC and PAHO briefs, which tobacco control measures are authorized by the FCTC Guidelines and the resulting legal implications. And yet, the Morris tribunal heard (and appeared to generally embrace) expert evidence on all of these topics. This suggests that expert evidence in cases like Philip Morris is valued not only because it fills gaps in expertise. It is admitted and used—as the Philip Morris tribunal itself suggested—because it is seen as relatively ‘objective’. Evidence as to both facts and the law such as that presented by tobacco control experts or legal scholars were accorded close scrutiny and (often) great weight because it appeared to contain knowledge or data that had some independent standing from either the parties or the tribunal—and not because (or only because) it supplied ‘scientific’ or technical data unfamiliar to lawyer-adjudicators.56 Expert evidence in Philip Morris and other ISDS cases is accepted and used insofar as it reflects, as the ICSID affirmation for experts requires, the ‘genuine beliefs’ of persons with some independent credibility because of their institutional affiliations, academic reputations, or simply considered judgment. This seems paradoxical. Aren’t ICSID arbitrators the bearers of objectivity, like all national and international judges? Why should they need to buttress (or out-source) this quality, including to experts named by the parties or to organizations disposed to a given outcome (such as tobacco control)? Those now criticizing ISDS for its alleged ‘biases’ may have answers. Perhaps the demand for objective information—and for its objective evaluation—exceeds that which can be supplied by party-appointed arbitrators in ad hoc tribunals that are increasingly subject to legitimacy deficits (real or imagined). It appears that ISDS tribunals’ appetite for expert evidence of all kinds is part and parcel of a ceaseless (if perhaps futile) quest for objectivity. Footnotes 1 Jean d’Aspremont and Makane Moïse Mbengue, ‘Strategies of Engagement with Scientific Fact-Finding in International Adjudication’ (2014) 5 J Intl Dispute Settlement 240. 2 ibid. 3 See eg, Durward V Sandifer, Evidence Before International Tribunals (Revised ed, University of Virginia 1975) 382–402 (discussing factual propositions that are subject to judicial notice). 4 See James Flett, ‘When is an Expert not an Expert?’ (2018) 9 JIDS. 5 See, eg, Jean d’Aspremont and Makane Moïse Mbengue, ‘Strategies of Engagement with Scientific Fact-Finding in International Adjudication’ (2014) 5 JIDS 240–72. 6 But see discussion of Kumbo Tire vCarmichael (n 45 infra) where the US Supreme Court expanded the definition of ‘scientific’ experts to include those with merely ‘technical’ expertise. If one rejects that Court’s view, quantum experts, for example, might not be included as ‘scientific experts’. 7 Compare Jonathan Bonnitcha, Lauge N Skovgarrd Poulsen, and Michael Waibel, The Political Economy of the Investment Treaty Regime (OUP 2017) 25 Figure 1.7 (numbers of ISDS arbitrations) to Karen J Alter, The New Terrain of International Law (PUP 2014) 72–75 Figure 3.1 (numbers of rulings issued in other international courts and tribunals). 8 See, eg, Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS467/22 (21 September 2017). 9 Philip Morris Brands Sàrl, Philip Morris Products SAand Abal Hermanos SAvOriental Republic of Uruguay, ICSID Case No ARB/10/7, Award (8 July 2016) (henceforth ‘Morris’). 10 ibid, paras 10–11. 11 ibid, para 483. 12 ibid, para 13. 13 Philip Morris Brands Sàrl, Philip Morris Products SAand Abal Hermanos SAvOriental Republic of Uruguay, ICSID Case No ARB/10/7, Concurring and Dissenting Opinion of Gary Born, paras 4–5 (henceforth ‘Born opinion’). 14 The ICSID Arbitration Rules, like those applicable to other arbitral settings, contain few limits on the powers of arbitrators with respect to the admission or weight to be given evidence. See, eg, ICSID Rules of Procedure for Arbitration Proceedings (‘ICSID Arbitration Rules’) (April 2006) r 34, which contains an open delegation of authority to ICSID arbitrators to ‘be the judge of the admissibility of any evidence adduced and of its probative value’. Those rules do not direct the arbitrators to apply any particular standard of proof to distinct forms of evidence nor any suggestion that the evidentiary rules of the arbitral forum should apply. 15 ICSID Arbitration Rule 35. That rule provides that witnesses need to make the following declaration before giving evidence ‘I solemnly declare upon my honour and conscience that I shall speak the truth, the whole truth and nothing but the truth’. Experts, however, must state ‘I solemnly declare upon my honour and conscience that my statement will be in accordance with my sincere belief’. 16 Much of this evidence was in the form of ‘market research’. See, eg, Morris (n 6), para 331 (noting the claimant’s marketing experts’ evidence that the level of tobacco consumption did not decrease as a result of the SPR); para 337 (citing the claimants’ expert reports indicating no evidence that the introduction of larger health warnings, as under the 80/80 regulation, increased awareness of smoking risks or reduces tobacco consumption). But the tribunal did, on occasion, rely heavily on market specialists such as Euromonitor. See, eg, ibid, paras 149–51 (drawing on Euromonitor data to contend that Abal’s market share of the Uruguayan market was adversely affected by the introduction of the SPR and to suggest that Uruguay’s two measures increased the level of illicit trade in cigarettes). 17 See, eg, ibid, paras 141–2. See also, para 306. See also Written Submission (Amicus Curiae Brief) by the World Health Organization and the WHO Framework Convention on Tobacco Control Secretariat, 28 January 2015, submitted in Morris (n 9), paras 25–27, 39–40 [henceforth ‘WHO/FCTC Amicus’]. 18 Morris (n 9), para 371. See also, para 391 (quoting some of the WHO/FCTC and PAHO conclusions cited by the respondent). 19 ibid para 391. 20 ibid para 392. 21 ibid paras 393–4. See also, para 396 (concluding that ‘in these circumstances there was no requirement for Uruguay to perform additional studies or to gather further evidence in support of the Challenged Measures’). 22 ibid, para 401 (citing the FCTC as ‘a point of reference on the basis of which to determine the reasonableness of the two measures’). 23 ibid, para 407 (quoting the WHO/FCTC Amicus). See also WHO/FCTC Amicus (n 14), para 90 (concluding that the evidence ‘supports the conclusion that the Uruguay’s measures in question are effective means of protecting public health’). 24 ibid paras 408–09. 25 ibid para 409. 26 ibid para 417. 27 ibid para 420. See also, paras 418–19. 28 ibidparas 202–09 (claimants’ use of intellectual property experts); paras 222–34 (respondent’s use of experts to rebut the claim that intellectual property recognizes a right to use); paras 235–74 (evaluating the competing experts’ claims on whether the relevant law (national and international) confers a right to ‘use’ and whether, irrespective of that, a trademark is a ‘property right’ under Uruguayan law that can be judged as an ‘expropriation’). 29 ibid para 271; paras 272–4. 30 ibid para 276. A comparable analysis, presumably also influenced by the underlying expert evidence on what Uruguay law protects, appears to underlie the tribunal’s conclusion that the trademarks were not ‘commitments’ protected by art 11 of the BIT. ibid, paras 473–82. 31 ibid paras 281–6. 32 ibid para 302 (quoting from one of the Respondent’s experts). 33 ibid paras 432–4. 34 ibid para 500. 35 ibid para 501. 36 ibid para 403 (quoting Schrijver’s opinion). 37 ibid paras 522–4; paras 529–30. The majority also drew support from the ECtHR ruling in Jejdet Sahin & Perihan Sahin vTurkey. ibid, para 531, fn 755 (acknowledging that its reliance on the Nejdet case was drawn from Schrijver’s second expert opinion). See also ibid, para 533 (citing in further support for its conclusion Paulsson opinion that ‘the vagaries of legal culture that enrich the world are to be respected’). 38 ibid, para 564. 39 Indeed, Born agreed with the majority with respect to Uruguay’s 80/80 regulation, including presumably the majority’s reliance on legal and other experts for its conclusions. Born opinion, para 1. 40 Born opinion, paras 14–16, fn 10–17; para 32, fn 31; para 34, fn 34. Born also relies heavily on legal experts to support his conclusion that Abal had indeed exhausted its local remedies. See Born opinion, para 37, fn 40; para 38, fn 43–44. 41 Born opinion, para 108. See also, para 126. 42 ibid para 128. 43 ibid para 144. Born argues that the obligation to accord fair and equitable treatment ‘necessarily connotes a measure of proportionality’. Although related, the requirement of proportionality differs from that of rationality or reasonableness. Proportionality involves an analysis of the legitimacy of a measure’s objective and whether a measure is both necessary and suitable for that objective, while reasonableness or arbitrariness focus primarily on the relationship between the measure and investor’s rights. Born opinion, para 139, fn 145. 44 Born opinion, paras 157–62 (noting that the SPR requirement is over-inclusive insofar as it prohibits sales of brands that do not mislead consumers and is also under-inclusive insofar as it does not bar the sale of different brands or ‘alibi brands’ that may indeed mislead consumers). 45 Indeed, the Philip Morris arbitrators, who drew so heavily on the facts that they were given by the relevant experts—for some examples, see (n 16)—were hardly in a position to declare that fact-finding was exclusively the adjudicator’s function. 46 Frye vUnited States, 293 F 1013 (DC Cir 1923). 47 Daubert vMerrell Dow Pharms, Inc, 509 US 579 (1993). In Kumbo Tire CovCarmichael, 526 US 137 (1999), the Court extended the Daubert test to ‘technical, or other specialized knowledge’, thereby suggesting that the admissibility of evidence based on the ‘soft sciences’ (such as economics and psychology) should also be based on ‘the same level of intellectual rigor that characterizes the practice of an expert in the relevant field’. Tire, at 152. Since the relevant evidence rule (Rule 702) drew no such distinctions, the Kumbo Court found that while trial court judges enjoy considerable discretion in how they apply the Daubert factors, there is no relevant difference between experts who rely on scientific principles and those who rely on ‘skill- or experience-based observation’ and it was therefore not improper for a judge to consider such factors to the testimony of an expert in tire failure analysis. 48 Morris (n 9), para 306 (citing to the amicus briefs filed by WHO/FCTC and PAHO). See also, para 307. 49 Indeed, some experts have opined in the course of ISDS disputes on both national law and international law as well as the relationship between the two. See, eg, Metalpar vArgentina, ICSID Case No ARB/03/5, Expert Report of Benedict Kingsbury (15 August 2006). 50 Other ISDS disputes have included, for example, legal experts testifying on the existence or contents of the rules of state responsibility to aliens as well as expert reports on the applicability of exhaustion of local remedies to denials of justice. See, eg, in Loewen Group, Incand Raymond LLoewen vUnited States of America, ICSID Case No ARB(AF)/98/3, the Opinion of Sir Robert Jennings (26 October 1998); Loewen Group, Incand Raymond LLoewen vUnited States of America, ICSID Case No ARB(AF)/98/3, Statement of Claim, (30 October 1998) <http://naftaclaims.com/disputes/usa/Loewen/Loewen%20-%20Notice%20of%20Arbitration%20-%20Jennings%20Opinion%20-%2030-10-98.pdf> accessed 10 April 2018. Indeed, the well-known Argentine disputes that focused on the legality of Argentina’s Emergency Measures under the ‘measures not precluded’ clause of the US–Argentine BIT were replete with legal experts on the meaning of that clause, the underlying customary defense of ‘necessity’, and the application of each of those legal standards in the Argentine context. See, eg, in Sempra Energy International & Camuzzi International and the Republic of Argentina, ICSID Case No ARB/02/16 and ARB/03/02, the Opinion of José E Alvarez (12 September 2005) and in Sempra Energy International & Camuzzi International vRepublic of Argentina, ICSID Case No ARB/03/02 the Witness Statement of Anne-Marie Slaughter and William Burke-White (2 December 2005). 51 Pulp Mills on the River Uruguay (Argentina vUruguay) (Joint Dissenting Opinion of Judges Al-Khasawneh and Simma) ICJ Rep 2010, paras 3–5; para 12. 52 Enron Creditors Recovery CorpvArgentine Republic, ICSID Case No ARB/01/3, Decision on the Application of Annulment of the Argentine Republic (30 July 2010), paras 391–3. 53 For a summary of these and other critiques, see, eg, Bonnitcha, Skovgarrd, and Waibel (n 7) 233–60. 54 See, eg, Richard B Bilder, ‘The Fact/Law Distinction in International Adjudication’, in Richard B Lillich (ed) Fact-Finding Before International Tribunals (Transnational 1992) 95. 55 See, eg, Joost Pauwelyn, ‘The Rule of Law Without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators from Venus’ (2015) 109 AJIL 109. 56 For a fascinating exposition of the development of modern conceptions of ‘objectivity’, defining this quality as involving the suppression of some aspect of the self and therefore in counterpoint to its opposite, ‘subjectivity’, see Orraine Daston and Peter Galison, Objectivity (Zone Books 2007) 36. © 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 17, 2018

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