When is an expert not an expert?1

When is an expert not an expert?1 Abstract This article does not set out to describe how experts are being used or should be used in international adjudication. Rather, it sets out to delimit the role of an expert conceptually, by distinguishing it from the functions of other actors, such as adjudicator, counsel and witness. Once this is done, most of the ‘problems’ associated with the role of experts in litigation are resolved. The role of experts is thus revealed to be one of guiding, translating, organizing and contextualizing. All that remains is for other actors, and notably the adjudicator and opposing counsel, to identify the additional functions that experts tend to arrogate to themselves, and respond accordingly. 1. INTRODUCTION The purpose of this article is not to attempt to describe what is actually happening, that is, how experts are actually being used or are actually behaving in the context of international adjudication, or specifically in the context of the WTO (although I will make some comments in passing on that latter issue). Nor is it the purpose of this article to make any kind of normative proposal about what the role of experts in international adjudication (or specifically in the context of the WTO) should be. I see no reasonable prospect, at least at present, for imposing any such normative view. Rather, the purpose of this article is to explore the issue from a conceptual perspective. That is, what I aim to do is to provide a set of analytical tools that might subsequently be useful for those participating in or observing international adjudication to understand what is actually happening in a particular case when it comes to the use and role of experts. The observations in this article reflect my experience litigating in the High Court in London, in the European Court of Justice, in the EFTA Court and in the WTO. I leave it to others to judge whether or not they are of more general relevance to other areas of international law. In my view, the best approach to the problem is to begin by identifying, from a conceptual point of view, what an expert is not. In this respect, I am referring to an expert irrespective of whether the expert is appointed by one party, or by both parties or by the adjudicator or is employed by the Secretariat, but I am not referring to the lawyers assisting the adjudicators. I see the lawyers assisting the adjudicators as simply assistants. Their role is just an extension of the function of the adjudicator and the extent of their role (from conceiving the judgment to checking footnotes) will simply be a function of the relationship between the judge and the assistant. The approach of identifying what an expert is not is not driven by a pre-disposition to scepticism when it comes to the role of experts. Rather, what is driving this approach is experience: the experience of seeing many different experts at work, in writing and orally, in hundreds of cases in the European Court of Justice and at the WTO, and reflecting upon what they are actually doing. In this respect, in my view, it is neither helpful nor possible to conceptualize the role of an expert in international adjudication in isolation. Rather, it is only possible to do so by contextualizing. That is, it is only possible to do so by relating the role of the expert to the role of other actors in the court process, such as the adjudicator and counsel, and to the role of other concepts that are specifically part of the context, such as claim, argument, interpretation, fact, evidence and so forth. In other words, I would conceptualize an expert as defined by the particular role or function they perform, irrespective of who appoints them. Thus, in my view, it is by delineating what an expert is not that we can develop a better understanding of what the role of an expert actually is, or should be. I would contend that, once an individual goes through this process of conceptual clarification, most of the problems and issues that people like to talk about when it comes to the role of experts in international adjudication tend to resolve themselves. For example, as we study an expert report attached to a brief we can breakout the different elements: factual assertion, evidence, re-statements of legal claims and arguments, legal characterizations of the facts and so forth. Having done this, as opposing counsel, we are well placed to respond in an appropriate way to these different elements. Similarly, as adjudicator, we are better placed to discern what might require a response from the other side, as well as what trespasses on the proper remit of the judge. 2. THE ‘ROLE’ OF AN ‘EXPERT’ IN LITIGATION: WHAT THE EXPERT IS NOT So, I would like to begin by addressing what the role of an expert in WTO litigation is or should be, from the conceptual point of view that I have just outlined. And as I have also just indicated, I am going to do this by considering what an expert is not. In my view, the ‘role’ of an ‘expert’ (irrespective of how they are appointed) is not: to identify, clarify or interpret the law to be applied (that is the role of the adjudicator); to opine on how the law, as clarified, is to be applied to the facts (that is the essence of adjudication); to frame legal claims or develop legal arguments (that is the role of legal counsel); to generate evidence (that is, to act as a witness). A witness is someone who makes representations to an adjudicator about the veracity of a fact that is generally not otherwise evidenced. The role of a witness and the role of an expert are distinct and not to be confused. Thus, in my view, the term ‘expert witness’ (which is not WTO treaty language) is problematic precisely because it blurs two distinct functions: that of an ‘expert’ and that of a ‘witness’. If one has knowledge of a fact, one can bear witness to it, irrespective of whether or not one is an ‘expert’; to present evidence. If we understand evidence to be generated by the occurrence of a fact; and a fact to be something that has occurred (and is capable of generating evidence)—we do not need an expert in order to exhibit the evidence—counsel can do that; to opine on the authenticity of evidence to the exclusion of the adjudicator. Granted, specific issues could arise about whether or not the qualities of a document suggest that it is forged in whole or in part. However, ultimately this is a matter for the adjudicator, because ultimately it is a question of establishing the facts pertinent to the question of authenticity (an exercise that itself requires recourse to evidence), and therefore ultimately a question of weighing the facts and evidence and applying the law to them. Authenticity is just a particular aspect of expertise overall—there is nothing special about it. (Authenticity is rarely an issue in WTO law, probably because there is a presumption, whether well-founded or not, that States act in good faith); to opine with respect to genuinely conflicting evidence (for example: according to document 1, fact A occurred, whilst according to document 2 fact A did not occur). This implies that one of the documents is false and is just another way of referring to the issue of authenticity; to opine with respect to genuinely conflicting facts. For example, one litigant asserts that, on a particular voyage fishing for tuna, a particular vessel killed 10 dolphins and adduces evidence to that effect in the form of a statement by an independent observer on the vessel; whilst the other litigant asserts that 20 dolphins were killed, and produces its own version of the statement by the independent observer. This is just another way of referring to the issue of authenticity, because one of the documents must be false; to select from among the available facts and evidence. Party experts will do this together with counsel. Court experts should not; or where there is one subset of facts supporting one party, and another subset of facts supporting the other party, to opine on which should carry more weight. This is just another away of addressing the question of how the law is to be applied to the facts, which is the role of the adjudicator. 3. WHAT REMAINS FOR THE EXPERT: GUIDING, TRANSLATING, ORGANIZING AND CONTEXTUALIZING This does not leave much (and indeed, that is one of the points of this article). Thus, in my view, an expert is best thought of as a guide for the adjudicator when approaching the facts and evidence. The adjudicator can benefit from such a guide because: there is a large amount of fact and evidence—although the adjudicator can also review it for themselves, and counsel should be able to summarize it; understanding the facts and evidence (that is, imparting meaning to it, particularly through the process of organizing it, as contrasted to the process of imparting meaning to the law, that is, the process of interpretation) requires the use and understanding of specialised terms that adjudicators may not be familiar with. In this sense, experts can be thought of as specialized dictionaries. In this respect, panel-appointed experts or Secretariat employees can be questioned directly by the panel, whilst party experts can also be subject to written and sometimes oral cross-examination by a panel; understanding the facts and evidence (that is, imparting meaning to it) requires it to be organized. Individual facts and evidence must be understood in relation to other individual facts and evidence. Inferences must be drawn or extrapolations must be made from the evidence. There must be a progression from the specificities of individual facts and evidence to more general statements about what propositions the fact and evidence support. For example, in the Russia – Pigs case, the experts were able to explain that, given all the factual circumstances, and the control measures taken by the European Union, it was highly unlikely that the outbreak of African swine fever that occurred in the Baltic States would spread throughout the European Union.2 This is the first key function of an expert. It brings them right up to the boundary with the role of the adjudicator in applying the law to the facts. Party experts, in positing such generalities, will certainly have one eye on the law, and be guided in that respect by counsel. This is the precise point at which party experts conflict; and understanding the facts and evidence (that is, imparting meaning to it) requires it to be appreciated in a broader context that the adjudicator is not familiar with. This is the second key function of an expert: contextualizing the facts and evidence. Similar comments apply. In this respect, the concept of ‘weighing’ a fact does not, in my view, take one outside the remit of the adjudicator: the fact is either the case or not the case; and the significance of fact in this context depends uniquely on the law, the application of the law to the facts being a matter for the adjudicator. Similarly, evidence is either authentic or it is not: and the same point therefore applies. Of these, the activity that, more than any of the others, borders the role of counsel and adjudicator, is the exercise of organizing facts and evidence. That is because the meaning of the collection of facts and evidence necessarily results from the relationship between the constituent parts; and the meaning of the facts and evidence shades into the way in which the law is to be applied to the facts and evidence; and even eventually into the meaning of the law itself (that is, its interpretation). For example, it may be an evidenced fact that a train left station A at a particular time, and it may also be an evidenced fact that it arrived 2 hours later at station B. We may have no direct evidence that it passed through station C (which is between stations A and B), but based on the information we have, this may be a reasonable inference. This is the meaning that we extract from the facts and evidence. We turn to the law, which provides for an obligation that the train must have called at station C, and we might conclude that the obligation has been complied with. Opposing counsel might then add to the category of relevant fact and evidence by pointing out that there is another route that does not pass by station C. Original counsel might counter that there was insufficient time for the train to pass by the other route. Opposing counsel might counter that there was insufficient time for the train to stop at station C, and that just driving through is not ‘calling’. And so forth. All of this might be the subject of expert reports from each party, which reach or support different conclusions. That is happening because the experts (irrespective of who appointed them, but particularly with respect to party-appointed experts) are making different selections of the relevant facts and evidence, and organizing the presentation of the facts and evidence differently, so that individual facts and pieces of evidence stand in different relationships to each other, thus altering the meaning to be extracted from them. One can see this in a positive way, in the sense that each party is being given a full opportunity to present the way in which they see the world, and their case, to the court. However, one can also see it in a negative way, because such expert reports tend to be teleological, that is, they present an argument of insidious intent, dressed-up as expertise. The experts are not really experts at all: they have become advocates. That is why I sometimes think that the term ‘battle of experts’ is something of an oxymoron: counsel might be expected to ‘do battle’, that is, to conflict or disagree; but, at least in principle, an expert is supposed to be presenting something objective in order to assist the court. This kind of ‘battle of experts’ model then leaves the adjudicator with the task of sifting through the competing expert reports in order to try to discern the precise points at which the selection and organization of the facts and evidence is being subtly skewed in order to support the position of the party paying the expert. This can sometimes prove to be a very difficult task, even to the extent that the experts are no longer facilitating the adjudication of the dispute, but making it more complex and burdensome, effectively playing into the hands of the litigant with the deepest pockets. 4. THE EXPERT IN WTO LITIGATION With the preceding points in mind, I turn now to consider briefly particular aspects of WTO law that relate to the role of experts in litigation, and particularly experts appointed by a panel.3 The overarching provision is Article 13 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), which is titled ‘Right to Seek Information’. This provision provides that a WTO panel has the right to seek information and technical advice from any source that it deems appropriate. It also provides that a panel may seek information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter submitted for adjudication. With respect to a factual issue concerning a scientific or other technical matter raised by a party to a dispute, a panel may request an advisory report in writing from an expert review group. Rules for the establishment of such a group and its procedures are set forth in Appendix 4 of the DSU. Although panels have frequently used Article 13 of the DSU to put questions to the parties, third parties and others, the possibility for requesting a report from an expert review group has never been used. Although the use of experts is quite common in different types of WTO disputes, such as, for example, under the General Agreement on Tariffs and Trade (GATT) 1994 or under the Subsidies and Countervailing Measures (SCM) Agreement, one agreement where it is the norm is the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). Article 11 of the SPS Agreement provides that, in a dispute under that Agreement involving scientific or technical issues, a panel ‘should’ seek advice from experts chosen by the panel in consultation with the parties to the dispute. It further provides that a panel may establish an advisory technical experts group, or consult the relevant international organizations, at the request of either party to the dispute or on its own initiative. This provision, and particularly the use of the term ‘should’, reflects the specificities of the Application of Sanitary and Phytosanitary Measures (SPS) Agreement, and notably the fact that, under the SPS Agreement, SPS measures must be based on scientific principles and on a risk assessment appropriate to the circumstances, and may not be maintained without sufficient scientific evidence, other than on a provisional basis. Under the SPS Agreement, the consultation of scientific experts has been very important in cases where the science itself is controversial, such as in EC – Hormones4 or EC – Biotech5. In other cases, where the science itself is less controversial, such as those relating to well-known animal diseases, the consultation of scientific experts has still taken place, but on the basis of more compact and efficient procedures.6 As whole, in my view, the procedures for the use of experts under the SPS Agreement function relatively well. They foresee the use of panel appointed rather than party-appointed experts, but at the same time provide the parties with an opportunity to participate in the appointment process. They also provide adequate protection for the due process rights of the parties, without excessively burdening the proceedings from a procedural point of view. Finally, they provide for an interactive meeting between the panel, the experts and the parties, during which efforts can be made to tease out difficult issues. Thus, disputes under the SPS Agreement represent a kind of ‘laboratory’ for the use of experts in WTO litigation, in the sense that different approaches and procedures can and have been used. The lessons learned can and indeed have then been transposed to other areas of WTO law, such as, for example, regulatory law (under the Technical Barriers to Trade (TBT) Agreement) and subsidies law (under the SCM Agreement). It has been argued that WTO panels do a poor job of obtaining independent and objective economic advice from experts, and that this undermines the authority and legitimacy of the system.7 I understand the points being made, and would confess to not being entirely convinced by some WTO reports. Nevertheless, I have my doubts that the solution lies in a greater use of economic experts. To take, for example, one of the commonly arising issues: market definition. That is, the process of deciding whether or not a first product sufficiently competes with a second product for the purposes of the pertinent legal assessment, or the process of identifying which products, taken together, sufficiently compete with each other. Essentially, this is done by examining cross-price elasticities of demand (that is, by asking how a change in the price of one product affects the price of the other product) and, to a lesser extent, supply. This becomes an issue, for example, for the purposes of determining whether or not de facto discrimination has been demonstrated. If the two products in question do not compete, there is no way in which one can sensibly construct a claim of de facto discrimination. However, I do not think that this means one needs to transpose from competition law the precise tools used for the purposes of market definition. I do not think there is such a thing as a perfect market definition: it just depends (in particular) on the cross-price elasticities of demand that are selected as an analytical tool, and other assumptions. And how one defines a market also depends very much on the objectives of the exercise. In the context of a de facto discrimination claim, the market can be defined relatively broadly or relatively narrowly (the WTO Appellate Body has referred to this as the ‘accordion’ of likeness), and how that is done may have consequences for the purposes of the analysis. But there is no ‘right’ market definition, and I see the issue as primarily a legal issue, which does not usually require the use of specialist economic expertise. I would have the same comments with respect to causation, which is not a fact, but a hypothetical proposition about the relationship between two facts. In my view, a lawyer is as well equipped to deal with that issue as an economist. One particular issue that comes up from time-to-time is the role of experts in discerning the meaning of municipal law. In this respect, it is sometimes asserted that the meaning of municipal law is a fact. This characterization can have particular significance in a two-tiered court structure, like the WTO, where appeals only lie on issues of law. If the meaning of municipal law is a fact, a panel statement on that issue cannot be appealed, unless the litigant invokes Article 11 of the DSU, which refers to a failure by a panel to make an objective assessment of the facts. Appeals under Article 11 of the DSU are more difficult to win. In my view, whilst it is true that the distinction between law and fact is, in essence, a legal construct, to the extent that it only takes on meaning in a legal context, it is equally true that the proposition that what something means as a fact is nonsense. Facts are things that happen in the real world and give rise to evidence; meaning is something that goes on in our heads. Therefore, if one is looking at the text of a particular measure, and at a municipal court judgment that says the measure ‘means’ X rather than Y, then it is incorrect to assert that the statement ‘the measure means X’ is a fact, because that is a statement about meaning. A correct statement would be: as a matter of fact, the text of the measure provides as follows; and as a matter of fact, a municipal court has found that it means X. The distinction is subtle but important. It means that assessing the consistency of the measure against the WTO obligation, including the meaning of the measure, is in no respect a pure question of fact. Rather, it is a mixed question of law and fact (that is, a question about how the law is to be applied to the facts) susceptible to appeal without invoking Article 11 of the DSU. The significance of this for the purposes of the present article is that it resolves what appears to be a question requiring ‘expertise’ (the meaning of municipal law) into a question of evidence and argument, which counsel and adjudicator are perfectly capable of resolving for themselves. I would like to turn now to the use of experts by the parties. There is little if anything in WTO law that governs the use of party experts generally. WTO Members constitute their own delegations, which are not subject to the Code of Conduct (ethical rules that bind adjudicators and the WTO Secretariat). Litigating Members are free to appoint whomsoever they wish as their ‘expert’ and no procedures govern the subsequent conduct of that person. There is no obligation to disclose terms of reference or instructions. Indeed, it is possible that no one other than the appointing Member may ever know of the appointment. Parties freely exhibit documents that they characterise as emanating from ‘experts’. As a matter of fact these may not be limited to what the role of an ‘expert’ should be, and typically stray into one or more of the other areas outlined above. In particular, they typically involve an organization and contextualization of the facts and evidence that favours the submitting party. Usually, one would expect counsel to be closely involved in framing and shaping the ‘expert report’ with one eye on the law. In essence, what is happening is that what is, in reality, legal argument, is being transferred from the brief to the export report in an attempt to imbue it with an aura of objectivity, in order to facilitate the process of ‘selling it’ to the judge. Professional reputations set some limits to the process, but do not prevent ‘battles of experts’ from arising. It is up to the other side to rebut, and the adjudicator and legal support staff (to the extent that role is delegated to them in whole or in party by the judge) to assess. There is no obligation on the party to subject their ‘expert’ to oral interaction. However, if the expert is in the delegation and particularly if he or she is permitted to speak, that opens the way for the other party or the panel to pose questions that are, for all practical purposes, directed at the expert. In my experience, if this kind of process does develop, it can in fact frequently be counter-productive for the submitting party.8 The case law supports the view that, if a panel wishes to rely on an ‘expert report’ it must normally afford the other party an opportunity to comment.9 It also supports the view that, if this has not occurred, such ‘expert report’ cannot be referenced by the Appellate Body when completing the legal analysis (which can only be done on the basis of un-appealed or uncontested facts).10 Results are mixed. In some cases one has the impression that far too much material is submitted as emanating from an ‘expert’, with much of it being brushed away or even ignored by adjudicators. In other cases, one has the impression that referring to and in some measure relying on a document emanating from an ‘expert’ has a significant role to play. In a few cases one has the impression that the expert is actually harmful to the submitting party. Sometimes one also has the impression that first instance adjudicators see this as a way of appeal-proofing rulings (by condemning the litigant on the basis of its own expert).11 Finally, it is also important to be aware of the fact that a panel can also have recourse to the use of internal WTO experts. Pursuant to Article 27 of the DSU, the Secretariat is responsible for assisting panels, especially on the legal, historical and procedural aspects of the matters dealt with, and providing secretarial and technical support. This appears to mean that a panel can be ‘assisted’ by anyone who is covered by the term ‘Secretariat’. The DSU does not specify that such a person must be permanently employed by the WTO. Such assistance could relate to economic issues, and to any issues with respect to which individuals in the Secretariat have knowledge and/or experience. The parties do not have access to such internal advice and it will not be referenced in the panel report. Nor will it appear on the panel record, or be transferred to the Appellate Body in the event of an appeal (pursuant to Rule 25 of the Working Procedures for Appellate Review, notwithstanding Rule 25(2)(d)). Arguably, like any other document provided by the legal advisor to the panel, it would probably be covered by the rule that the panel's deliberations are confidential (DSU, Article 14(1)). These observations shed significant light on the ‘role’ of ‘experts’ as merely providing assistance to adjudicators, without usurping in any way the function of adjudicators, which must ultimately be exercised on a ‘stand-alone’ basis. 5. Conclusion In conclusion, in my view, the best way to think about the role of an expert in international adjudication, and particularly in WTO litigation, is conceptually, by delimiting what an expert is not, by reference to the role of other actors and concepts in the litigation. This resolves most contentious issues, at least at the conceptual level. That said, in the real world, experts are mercurial, in the sense that it is often very difficult or even impossible to contain them within the conceptual box that we might thus define for them. Often, we may be speaking about individuals who have dedicated their professional lives to a particular issue, and the opportunity to finally express their point of view in the environment of a court room is sometimes just too tempting: we sometimes refer to them light-heartedly as ‘political scientists’. No matter how well briefed and prepared, I have quite often seen experts going ‘off-script’ and, in doing so, making the case for the other party. My advice for counsel is therefore to be fully aware not only of the potential benefits, but also the limitations and risks associated with the use of experts. My advice for adjudicators is to retain full control of the agenda-setting function in the court room when it comes to experts, so that they remain harnessed to fulfilling the court's objectives, rather than the interests of specific litigants. In my view, the way in which experts are used in litigation under the WTO SPS Agreement functions relatively well and roughly corresponds to a model that other jurisdictions may find useful. Footnotes 1 Any opinions expressed are personal and not attributable to the European Union, the European Commission or its Legal Service. 2 Panel Report, Russia – Pigs, paras 1.18–1.40. 3 For a more detailed description, see: Joost Pauwelyn, ‘The Use of Experts in WTO Dispute Settlement’ (2002) 51 ICLQ 325. For a more recent update, see GZ Marceau and JK Hawkins, ‘Experts in WTO Dispute Settlement’ (2012) 3 (3) JIDS 493. 4 European Communities – Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body (13 February 1998), WT/DS26/AB/R, WT/DS48/AB/R. 5 European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Report of the Panel (21 November 2006) WT/DS291/R, WT/DS292/R, WT/DS293/R. 6 See eg Panel Report, Russia – Pigs (EU), paras 1.18–1.40 (a case that concerned African swine fever in pigs, the pathology of which is well understood); and Panel Report, US – Animals, paras 1.11–1.27 (a case concerning foot and mouth disease in cattle, the pathology of which is also well understood). 7 CA Thomas, ‘Of Facts and Phantoms: Economics, Epistemic Legitimacy, and WTO Dispute Settlement’ (2011) 14 (2) JIEL 295–328. 8 For example, in Philippines – Distilled Spirits the defendant used an ‘expert’ with particular knowledge of spirits and particularly whisky, who eventually spoke and responded to questions during the hearing. However, those exchanges tended to confirm the view that there was, in fact, some competition between grain whisky and sugar-based whisky—a proposition that was against the interests of the defendant. See para 7.62 of the Panel Report. 9 Appellate Body Report, Thailand – Cigarettes (Philippines), paras 141–61. 10 Appellate Body Report, Columbia – Textiles, para 5.30. 11 See, for example, Panel Report EC and CERTAIN MEMBER STATES – Large Civil Aircraft (art 21.5 – US), s 6.5.2 (referring extensively to an EU expert report by Professor Whitelaw in concluding that Member State financing for the A350XWB involved a subsidy). © The Author(s) 2018. Published by Oxford University Press. All rights reserved. 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When is an expert not an expert?1

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Abstract

Abstract This article does not set out to describe how experts are being used or should be used in international adjudication. Rather, it sets out to delimit the role of an expert conceptually, by distinguishing it from the functions of other actors, such as adjudicator, counsel and witness. Once this is done, most of the ‘problems’ associated with the role of experts in litigation are resolved. The role of experts is thus revealed to be one of guiding, translating, organizing and contextualizing. All that remains is for other actors, and notably the adjudicator and opposing counsel, to identify the additional functions that experts tend to arrogate to themselves, and respond accordingly. 1. INTRODUCTION The purpose of this article is not to attempt to describe what is actually happening, that is, how experts are actually being used or are actually behaving in the context of international adjudication, or specifically in the context of the WTO (although I will make some comments in passing on that latter issue). Nor is it the purpose of this article to make any kind of normative proposal about what the role of experts in international adjudication (or specifically in the context of the WTO) should be. I see no reasonable prospect, at least at present, for imposing any such normative view. Rather, the purpose of this article is to explore the issue from a conceptual perspective. That is, what I aim to do is to provide a set of analytical tools that might subsequently be useful for those participating in or observing international adjudication to understand what is actually happening in a particular case when it comes to the use and role of experts. The observations in this article reflect my experience litigating in the High Court in London, in the European Court of Justice, in the EFTA Court and in the WTO. I leave it to others to judge whether or not they are of more general relevance to other areas of international law. In my view, the best approach to the problem is to begin by identifying, from a conceptual point of view, what an expert is not. In this respect, I am referring to an expert irrespective of whether the expert is appointed by one party, or by both parties or by the adjudicator or is employed by the Secretariat, but I am not referring to the lawyers assisting the adjudicators. I see the lawyers assisting the adjudicators as simply assistants. Their role is just an extension of the function of the adjudicator and the extent of their role (from conceiving the judgment to checking footnotes) will simply be a function of the relationship between the judge and the assistant. The approach of identifying what an expert is not is not driven by a pre-disposition to scepticism when it comes to the role of experts. Rather, what is driving this approach is experience: the experience of seeing many different experts at work, in writing and orally, in hundreds of cases in the European Court of Justice and at the WTO, and reflecting upon what they are actually doing. In this respect, in my view, it is neither helpful nor possible to conceptualize the role of an expert in international adjudication in isolation. Rather, it is only possible to do so by contextualizing. That is, it is only possible to do so by relating the role of the expert to the role of other actors in the court process, such as the adjudicator and counsel, and to the role of other concepts that are specifically part of the context, such as claim, argument, interpretation, fact, evidence and so forth. In other words, I would conceptualize an expert as defined by the particular role or function they perform, irrespective of who appoints them. Thus, in my view, it is by delineating what an expert is not that we can develop a better understanding of what the role of an expert actually is, or should be. I would contend that, once an individual goes through this process of conceptual clarification, most of the problems and issues that people like to talk about when it comes to the role of experts in international adjudication tend to resolve themselves. For example, as we study an expert report attached to a brief we can breakout the different elements: factual assertion, evidence, re-statements of legal claims and arguments, legal characterizations of the facts and so forth. Having done this, as opposing counsel, we are well placed to respond in an appropriate way to these different elements. Similarly, as adjudicator, we are better placed to discern what might require a response from the other side, as well as what trespasses on the proper remit of the judge. 2. THE ‘ROLE’ OF AN ‘EXPERT’ IN LITIGATION: WHAT THE EXPERT IS NOT So, I would like to begin by addressing what the role of an expert in WTO litigation is or should be, from the conceptual point of view that I have just outlined. And as I have also just indicated, I am going to do this by considering what an expert is not. In my view, the ‘role’ of an ‘expert’ (irrespective of how they are appointed) is not: to identify, clarify or interpret the law to be applied (that is the role of the adjudicator); to opine on how the law, as clarified, is to be applied to the facts (that is the essence of adjudication); to frame legal claims or develop legal arguments (that is the role of legal counsel); to generate evidence (that is, to act as a witness). A witness is someone who makes representations to an adjudicator about the veracity of a fact that is generally not otherwise evidenced. The role of a witness and the role of an expert are distinct and not to be confused. Thus, in my view, the term ‘expert witness’ (which is not WTO treaty language) is problematic precisely because it blurs two distinct functions: that of an ‘expert’ and that of a ‘witness’. If one has knowledge of a fact, one can bear witness to it, irrespective of whether or not one is an ‘expert’; to present evidence. If we understand evidence to be generated by the occurrence of a fact; and a fact to be something that has occurred (and is capable of generating evidence)—we do not need an expert in order to exhibit the evidence—counsel can do that; to opine on the authenticity of evidence to the exclusion of the adjudicator. Granted, specific issues could arise about whether or not the qualities of a document suggest that it is forged in whole or in part. However, ultimately this is a matter for the adjudicator, because ultimately it is a question of establishing the facts pertinent to the question of authenticity (an exercise that itself requires recourse to evidence), and therefore ultimately a question of weighing the facts and evidence and applying the law to them. Authenticity is just a particular aspect of expertise overall—there is nothing special about it. (Authenticity is rarely an issue in WTO law, probably because there is a presumption, whether well-founded or not, that States act in good faith); to opine with respect to genuinely conflicting evidence (for example: according to document 1, fact A occurred, whilst according to document 2 fact A did not occur). This implies that one of the documents is false and is just another way of referring to the issue of authenticity; to opine with respect to genuinely conflicting facts. For example, one litigant asserts that, on a particular voyage fishing for tuna, a particular vessel killed 10 dolphins and adduces evidence to that effect in the form of a statement by an independent observer on the vessel; whilst the other litigant asserts that 20 dolphins were killed, and produces its own version of the statement by the independent observer. This is just another way of referring to the issue of authenticity, because one of the documents must be false; to select from among the available facts and evidence. Party experts will do this together with counsel. Court experts should not; or where there is one subset of facts supporting one party, and another subset of facts supporting the other party, to opine on which should carry more weight. This is just another away of addressing the question of how the law is to be applied to the facts, which is the role of the adjudicator. 3. WHAT REMAINS FOR THE EXPERT: GUIDING, TRANSLATING, ORGANIZING AND CONTEXTUALIZING This does not leave much (and indeed, that is one of the points of this article). Thus, in my view, an expert is best thought of as a guide for the adjudicator when approaching the facts and evidence. The adjudicator can benefit from such a guide because: there is a large amount of fact and evidence—although the adjudicator can also review it for themselves, and counsel should be able to summarize it; understanding the facts and evidence (that is, imparting meaning to it, particularly through the process of organizing it, as contrasted to the process of imparting meaning to the law, that is, the process of interpretation) requires the use and understanding of specialised terms that adjudicators may not be familiar with. In this sense, experts can be thought of as specialized dictionaries. In this respect, panel-appointed experts or Secretariat employees can be questioned directly by the panel, whilst party experts can also be subject to written and sometimes oral cross-examination by a panel; understanding the facts and evidence (that is, imparting meaning to it) requires it to be organized. Individual facts and evidence must be understood in relation to other individual facts and evidence. Inferences must be drawn or extrapolations must be made from the evidence. There must be a progression from the specificities of individual facts and evidence to more general statements about what propositions the fact and evidence support. For example, in the Russia – Pigs case, the experts were able to explain that, given all the factual circumstances, and the control measures taken by the European Union, it was highly unlikely that the outbreak of African swine fever that occurred in the Baltic States would spread throughout the European Union.2 This is the first key function of an expert. It brings them right up to the boundary with the role of the adjudicator in applying the law to the facts. Party experts, in positing such generalities, will certainly have one eye on the law, and be guided in that respect by counsel. This is the precise point at which party experts conflict; and understanding the facts and evidence (that is, imparting meaning to it) requires it to be appreciated in a broader context that the adjudicator is not familiar with. This is the second key function of an expert: contextualizing the facts and evidence. Similar comments apply. In this respect, the concept of ‘weighing’ a fact does not, in my view, take one outside the remit of the adjudicator: the fact is either the case or not the case; and the significance of fact in this context depends uniquely on the law, the application of the law to the facts being a matter for the adjudicator. Similarly, evidence is either authentic or it is not: and the same point therefore applies. Of these, the activity that, more than any of the others, borders the role of counsel and adjudicator, is the exercise of organizing facts and evidence. That is because the meaning of the collection of facts and evidence necessarily results from the relationship between the constituent parts; and the meaning of the facts and evidence shades into the way in which the law is to be applied to the facts and evidence; and even eventually into the meaning of the law itself (that is, its interpretation). For example, it may be an evidenced fact that a train left station A at a particular time, and it may also be an evidenced fact that it arrived 2 hours later at station B. We may have no direct evidence that it passed through station C (which is between stations A and B), but based on the information we have, this may be a reasonable inference. This is the meaning that we extract from the facts and evidence. We turn to the law, which provides for an obligation that the train must have called at station C, and we might conclude that the obligation has been complied with. Opposing counsel might then add to the category of relevant fact and evidence by pointing out that there is another route that does not pass by station C. Original counsel might counter that there was insufficient time for the train to pass by the other route. Opposing counsel might counter that there was insufficient time for the train to stop at station C, and that just driving through is not ‘calling’. And so forth. All of this might be the subject of expert reports from each party, which reach or support different conclusions. That is happening because the experts (irrespective of who appointed them, but particularly with respect to party-appointed experts) are making different selections of the relevant facts and evidence, and organizing the presentation of the facts and evidence differently, so that individual facts and pieces of evidence stand in different relationships to each other, thus altering the meaning to be extracted from them. One can see this in a positive way, in the sense that each party is being given a full opportunity to present the way in which they see the world, and their case, to the court. However, one can also see it in a negative way, because such expert reports tend to be teleological, that is, they present an argument of insidious intent, dressed-up as expertise. The experts are not really experts at all: they have become advocates. That is why I sometimes think that the term ‘battle of experts’ is something of an oxymoron: counsel might be expected to ‘do battle’, that is, to conflict or disagree; but, at least in principle, an expert is supposed to be presenting something objective in order to assist the court. This kind of ‘battle of experts’ model then leaves the adjudicator with the task of sifting through the competing expert reports in order to try to discern the precise points at which the selection and organization of the facts and evidence is being subtly skewed in order to support the position of the party paying the expert. This can sometimes prove to be a very difficult task, even to the extent that the experts are no longer facilitating the adjudication of the dispute, but making it more complex and burdensome, effectively playing into the hands of the litigant with the deepest pockets. 4. THE EXPERT IN WTO LITIGATION With the preceding points in mind, I turn now to consider briefly particular aspects of WTO law that relate to the role of experts in litigation, and particularly experts appointed by a panel.3 The overarching provision is Article 13 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), which is titled ‘Right to Seek Information’. This provision provides that a WTO panel has the right to seek information and technical advice from any source that it deems appropriate. It also provides that a panel may seek information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter submitted for adjudication. With respect to a factual issue concerning a scientific or other technical matter raised by a party to a dispute, a panel may request an advisory report in writing from an expert review group. Rules for the establishment of such a group and its procedures are set forth in Appendix 4 of the DSU. Although panels have frequently used Article 13 of the DSU to put questions to the parties, third parties and others, the possibility for requesting a report from an expert review group has never been used. Although the use of experts is quite common in different types of WTO disputes, such as, for example, under the General Agreement on Tariffs and Trade (GATT) 1994 or under the Subsidies and Countervailing Measures (SCM) Agreement, one agreement where it is the norm is the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). Article 11 of the SPS Agreement provides that, in a dispute under that Agreement involving scientific or technical issues, a panel ‘should’ seek advice from experts chosen by the panel in consultation with the parties to the dispute. It further provides that a panel may establish an advisory technical experts group, or consult the relevant international organizations, at the request of either party to the dispute or on its own initiative. This provision, and particularly the use of the term ‘should’, reflects the specificities of the Application of Sanitary and Phytosanitary Measures (SPS) Agreement, and notably the fact that, under the SPS Agreement, SPS measures must be based on scientific principles and on a risk assessment appropriate to the circumstances, and may not be maintained without sufficient scientific evidence, other than on a provisional basis. Under the SPS Agreement, the consultation of scientific experts has been very important in cases where the science itself is controversial, such as in EC – Hormones4 or EC – Biotech5. In other cases, where the science itself is less controversial, such as those relating to well-known animal diseases, the consultation of scientific experts has still taken place, but on the basis of more compact and efficient procedures.6 As whole, in my view, the procedures for the use of experts under the SPS Agreement function relatively well. They foresee the use of panel appointed rather than party-appointed experts, but at the same time provide the parties with an opportunity to participate in the appointment process. They also provide adequate protection for the due process rights of the parties, without excessively burdening the proceedings from a procedural point of view. Finally, they provide for an interactive meeting between the panel, the experts and the parties, during which efforts can be made to tease out difficult issues. Thus, disputes under the SPS Agreement represent a kind of ‘laboratory’ for the use of experts in WTO litigation, in the sense that different approaches and procedures can and have been used. The lessons learned can and indeed have then been transposed to other areas of WTO law, such as, for example, regulatory law (under the Technical Barriers to Trade (TBT) Agreement) and subsidies law (under the SCM Agreement). It has been argued that WTO panels do a poor job of obtaining independent and objective economic advice from experts, and that this undermines the authority and legitimacy of the system.7 I understand the points being made, and would confess to not being entirely convinced by some WTO reports. Nevertheless, I have my doubts that the solution lies in a greater use of economic experts. To take, for example, one of the commonly arising issues: market definition. That is, the process of deciding whether or not a first product sufficiently competes with a second product for the purposes of the pertinent legal assessment, or the process of identifying which products, taken together, sufficiently compete with each other. Essentially, this is done by examining cross-price elasticities of demand (that is, by asking how a change in the price of one product affects the price of the other product) and, to a lesser extent, supply. This becomes an issue, for example, for the purposes of determining whether or not de facto discrimination has been demonstrated. If the two products in question do not compete, there is no way in which one can sensibly construct a claim of de facto discrimination. However, I do not think that this means one needs to transpose from competition law the precise tools used for the purposes of market definition. I do not think there is such a thing as a perfect market definition: it just depends (in particular) on the cross-price elasticities of demand that are selected as an analytical tool, and other assumptions. And how one defines a market also depends very much on the objectives of the exercise. In the context of a de facto discrimination claim, the market can be defined relatively broadly or relatively narrowly (the WTO Appellate Body has referred to this as the ‘accordion’ of likeness), and how that is done may have consequences for the purposes of the analysis. But there is no ‘right’ market definition, and I see the issue as primarily a legal issue, which does not usually require the use of specialist economic expertise. I would have the same comments with respect to causation, which is not a fact, but a hypothetical proposition about the relationship between two facts. In my view, a lawyer is as well equipped to deal with that issue as an economist. One particular issue that comes up from time-to-time is the role of experts in discerning the meaning of municipal law. In this respect, it is sometimes asserted that the meaning of municipal law is a fact. This characterization can have particular significance in a two-tiered court structure, like the WTO, where appeals only lie on issues of law. If the meaning of municipal law is a fact, a panel statement on that issue cannot be appealed, unless the litigant invokes Article 11 of the DSU, which refers to a failure by a panel to make an objective assessment of the facts. Appeals under Article 11 of the DSU are more difficult to win. In my view, whilst it is true that the distinction between law and fact is, in essence, a legal construct, to the extent that it only takes on meaning in a legal context, it is equally true that the proposition that what something means as a fact is nonsense. Facts are things that happen in the real world and give rise to evidence; meaning is something that goes on in our heads. Therefore, if one is looking at the text of a particular measure, and at a municipal court judgment that says the measure ‘means’ X rather than Y, then it is incorrect to assert that the statement ‘the measure means X’ is a fact, because that is a statement about meaning. A correct statement would be: as a matter of fact, the text of the measure provides as follows; and as a matter of fact, a municipal court has found that it means X. The distinction is subtle but important. It means that assessing the consistency of the measure against the WTO obligation, including the meaning of the measure, is in no respect a pure question of fact. Rather, it is a mixed question of law and fact (that is, a question about how the law is to be applied to the facts) susceptible to appeal without invoking Article 11 of the DSU. The significance of this for the purposes of the present article is that it resolves what appears to be a question requiring ‘expertise’ (the meaning of municipal law) into a question of evidence and argument, which counsel and adjudicator are perfectly capable of resolving for themselves. I would like to turn now to the use of experts by the parties. There is little if anything in WTO law that governs the use of party experts generally. WTO Members constitute their own delegations, which are not subject to the Code of Conduct (ethical rules that bind adjudicators and the WTO Secretariat). Litigating Members are free to appoint whomsoever they wish as their ‘expert’ and no procedures govern the subsequent conduct of that person. There is no obligation to disclose terms of reference or instructions. Indeed, it is possible that no one other than the appointing Member may ever know of the appointment. Parties freely exhibit documents that they characterise as emanating from ‘experts’. As a matter of fact these may not be limited to what the role of an ‘expert’ should be, and typically stray into one or more of the other areas outlined above. In particular, they typically involve an organization and contextualization of the facts and evidence that favours the submitting party. Usually, one would expect counsel to be closely involved in framing and shaping the ‘expert report’ with one eye on the law. In essence, what is happening is that what is, in reality, legal argument, is being transferred from the brief to the export report in an attempt to imbue it with an aura of objectivity, in order to facilitate the process of ‘selling it’ to the judge. Professional reputations set some limits to the process, but do not prevent ‘battles of experts’ from arising. It is up to the other side to rebut, and the adjudicator and legal support staff (to the extent that role is delegated to them in whole or in party by the judge) to assess. There is no obligation on the party to subject their ‘expert’ to oral interaction. However, if the expert is in the delegation and particularly if he or she is permitted to speak, that opens the way for the other party or the panel to pose questions that are, for all practical purposes, directed at the expert. In my experience, if this kind of process does develop, it can in fact frequently be counter-productive for the submitting party.8 The case law supports the view that, if a panel wishes to rely on an ‘expert report’ it must normally afford the other party an opportunity to comment.9 It also supports the view that, if this has not occurred, such ‘expert report’ cannot be referenced by the Appellate Body when completing the legal analysis (which can only be done on the basis of un-appealed or uncontested facts).10 Results are mixed. In some cases one has the impression that far too much material is submitted as emanating from an ‘expert’, with much of it being brushed away or even ignored by adjudicators. In other cases, one has the impression that referring to and in some measure relying on a document emanating from an ‘expert’ has a significant role to play. In a few cases one has the impression that the expert is actually harmful to the submitting party. Sometimes one also has the impression that first instance adjudicators see this as a way of appeal-proofing rulings (by condemning the litigant on the basis of its own expert).11 Finally, it is also important to be aware of the fact that a panel can also have recourse to the use of internal WTO experts. Pursuant to Article 27 of the DSU, the Secretariat is responsible for assisting panels, especially on the legal, historical and procedural aspects of the matters dealt with, and providing secretarial and technical support. This appears to mean that a panel can be ‘assisted’ by anyone who is covered by the term ‘Secretariat’. The DSU does not specify that such a person must be permanently employed by the WTO. Such assistance could relate to economic issues, and to any issues with respect to which individuals in the Secretariat have knowledge and/or experience. The parties do not have access to such internal advice and it will not be referenced in the panel report. Nor will it appear on the panel record, or be transferred to the Appellate Body in the event of an appeal (pursuant to Rule 25 of the Working Procedures for Appellate Review, notwithstanding Rule 25(2)(d)). Arguably, like any other document provided by the legal advisor to the panel, it would probably be covered by the rule that the panel's deliberations are confidential (DSU, Article 14(1)). These observations shed significant light on the ‘role’ of ‘experts’ as merely providing assistance to adjudicators, without usurping in any way the function of adjudicators, which must ultimately be exercised on a ‘stand-alone’ basis. 5. Conclusion In conclusion, in my view, the best way to think about the role of an expert in international adjudication, and particularly in WTO litigation, is conceptually, by delimiting what an expert is not, by reference to the role of other actors and concepts in the litigation. This resolves most contentious issues, at least at the conceptual level. That said, in the real world, experts are mercurial, in the sense that it is often very difficult or even impossible to contain them within the conceptual box that we might thus define for them. Often, we may be speaking about individuals who have dedicated their professional lives to a particular issue, and the opportunity to finally express their point of view in the environment of a court room is sometimes just too tempting: we sometimes refer to them light-heartedly as ‘political scientists’. No matter how well briefed and prepared, I have quite often seen experts going ‘off-script’ and, in doing so, making the case for the other party. My advice for counsel is therefore to be fully aware not only of the potential benefits, but also the limitations and risks associated with the use of experts. My advice for adjudicators is to retain full control of the agenda-setting function in the court room when it comes to experts, so that they remain harnessed to fulfilling the court's objectives, rather than the interests of specific litigants. In my view, the way in which experts are used in litigation under the WTO SPS Agreement functions relatively well and roughly corresponds to a model that other jurisdictions may find useful. Footnotes 1 Any opinions expressed are personal and not attributable to the European Union, the European Commission or its Legal Service. 2 Panel Report, Russia – Pigs, paras 1.18–1.40. 3 For a more detailed description, see: Joost Pauwelyn, ‘The Use of Experts in WTO Dispute Settlement’ (2002) 51 ICLQ 325. For a more recent update, see GZ Marceau and JK Hawkins, ‘Experts in WTO Dispute Settlement’ (2012) 3 (3) JIDS 493. 4 European Communities – Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body (13 February 1998), WT/DS26/AB/R, WT/DS48/AB/R. 5 European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Report of the Panel (21 November 2006) WT/DS291/R, WT/DS292/R, WT/DS293/R. 6 See eg Panel Report, Russia – Pigs (EU), paras 1.18–1.40 (a case that concerned African swine fever in pigs, the pathology of which is well understood); and Panel Report, US – Animals, paras 1.11–1.27 (a case concerning foot and mouth disease in cattle, the pathology of which is also well understood). 7 CA Thomas, ‘Of Facts and Phantoms: Economics, Epistemic Legitimacy, and WTO Dispute Settlement’ (2011) 14 (2) JIEL 295–328. 8 For example, in Philippines – Distilled Spirits the defendant used an ‘expert’ with particular knowledge of spirits and particularly whisky, who eventually spoke and responded to questions during the hearing. However, those exchanges tended to confirm the view that there was, in fact, some competition between grain whisky and sugar-based whisky—a proposition that was against the interests of the defendant. See para 7.62 of the Panel Report. 9 Appellate Body Report, Thailand – Cigarettes (Philippines), paras 141–61. 10 Appellate Body Report, Columbia – Textiles, para 5.30. 11 See, for example, Panel Report EC and CERTAIN MEMBER STATES – Large Civil Aircraft (art 21.5 – US), s 6.5.2 (referring extensively to an EU expert report by Professor Whitelaw in concluding that Member State financing for the A350XWB involved a subsidy). © 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: May 10, 2018

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