Details
Study title
Experts and International Courts and Tribunals
Ref study 11840
Study language English
Contributing institutions
Authors
Keywords
  • International law
  • Experts
  • International dispute settlement
  • International Courts and Tribunals
  • Environmental law
Disciplines
Period
Geographical space
Global
Country
  • Switzerland
Abstract
The expert has become a lead actor in the international judicial process. International disputes increasingly involve scientific or complex technical issues, and international courts and tribunals seek expert advice in highly important disputes. However, some adjudicators have described as deficient the existing judicial mechanisms designed to handle expert evidence. Requests for doctrinal review on the use of experts become pressing, considering that the subject matter have been scarcely addressed in international law.

On the one hand, the research aims to study the rules and procedure governing the use of experts before international courts and tribunals, and to assess the contribution of scientific expertise in judicial decision-making. On the other hand, the project has a practical purpose to offer recommendations for a better presentation of expert knowledge from a procedural point of view, as well as for its better integration in the decisions of international courts and tribunals.

First, the existing techniques for presentation of expert evidence and the choices made by international courts and tribunals between them. Second, the procedural organization of the expert’s presence during the proceedings deserves in-depth analysis. Finally, integrating expert evidence in the judicial decision appears to be an increasingly difficult task for the judge, due to the factual complexity of some international disputes and the uncertainty epitomizing scientific knowledge. Accounting for this uncertainty factor in a judicial context is a major issue which needs to be carefully addressed.

The question of expertise is at the heart of critical social and economic issues, particularly in international law. The handling of expertise appears to be a key component of many litigation proceedings, whose solutions are international in scope. The definition of its regime is critical to decision-making in many disputes concerning societal or economic issues, such as climate change and genetically modified organisms.
Results
In course of the first two years and a half, the interim results of the research have been exhibited at international conferences and in publications of the beneficiary, co-applicant and other researchers collaborating or assisting on the project. Other project output from the first year is in the form of raw data, in the process of being collated into research output.

The work done thus far – a combination of textual, casuistic and practice-based analysis (the latter from the interviews conducted) has allowed us to identify and have a complete description of a regime for experts in a particular judicial forum. These comprehensive results would not have been possible without an in-depth understanding and acknowledgement of these three elements.

For the purpose of disseminating the results, on the occasion of the 53rd International Law Seminar of the United Nations International Law Commission, the research team organised an interactive workshop on ‘Experts in International Law’. This workshop took place at the University of Geneva on the 13th of July 2017 and had a session chaired by Professor Boisson de Chazournes. Speakers at the workshop included the three members of the research team – Professor Mbengue, Ms Das and Mr Gros – as well as a member of the International Law Commission.

The project researchers presented a summary of their findings in this project till date, and the workshop provided a wide and distinguished audience for the dissemination of the results. The participants of the international law seminar, selected from all over the world based on their legal experience and academic background, were present. This greatly increased the visibility of the project and its results in the field of public international law, especially among those who are involved in the codification and progressive development of various aspects of the subject.

A summary of the findings' project has been presented as well during the symposium held in Luxembourg, in order to both disseminate and test them.

Further, research team members have participated in conferences related to the project topic. Publications related to the research subject have also been made, enabling dissemination of the subject matter of this project.
Methods (description)
During the first year of the period covered by this report, the objective was to conduct research to identify and analyse practices across various international jurisdictions in relation to experts appearing in disputes before the said jurisdictions. Towards this end, our preliminary research, conducted in 2015 and a part of 2016, included the study of statutes, rules and case-law from the International Court of Justice [‘ICJ’], the International Tribunal for the Law of the Sea [‘ITLOS’] (and Law of the Sea arbitrations), the dispute settlement system of the World Trade Organization [‘WTO’], the International Centre for the Settlement of Investment Disputes [‘ICSID’], the Permanent Court of Arbitration [‘PCA’] and other institutions conducting investment and inter-State arbitrations.

The theoretical framework consisted of two aspects: (i) identification of provisions within legal instruments that refer to and regulate usage of experts in international disputes, and (ii) analysis of judicial proceedings with respect to expert procedures as well as decisions, from the perspective of the treatment of evidence received through experts.

Aside from this classical approach based on an analysis of the sources mentioned above, we have conducted interviews with a large number of adjudicators, counsel and experts that have appeared in previous disputes, in the above-mentioned international fora, i.e., the ICJ, ITLOS, arbitral tribunals established under Annex VII of the UN Convention on the Law of the Sea, WTO panels and the Appellate Body, and arbitrations conducted under the auspices of the ICSID, the PCA and other inter-State arbitrations.

For this purpose, separate questionnaires have been created for adjudicators, counsel and experts at the various fora mentioned earlier. The interview responses, some written, and some recorded, have all been received under the Chatham House Rule, maintaining anonymity of the interview subjects. The interviews have enriched the final results of the research project. They are indeed important from the perspective of getting a practical understanding of the mechanisms by which scientific and other technical experts are used and integrated into the international dispute resolution process.

In order to provide a platform for the exchange of views on issues that are much contested within practice as well as in the literature, within the broad theme of experts, as well as to test the preliminary results of the research undertaken in this project, a symposium titled ‘the Expert in the International Adjudicative Process’ was organised as a collaboration between the Department of Public International Law and International Organisation of the Faculty of Law, University of Geneva, and the Max Planck Institute Luxembourg for Procedural Law

This symposium, titled “The Expert in the International Adjudicative Process” took place from 27 to 28 April 2017, and highlighted and confronted, among other issues, the appointment of experts, their roles and obligations, the modes of using experts within the framework of the proceedings, and the means of assessing expert evidence available to the judge.
Methods (instruments)
Replicated study No
Publications
  • Mbengue, Makane Moïse. 2016. Scientific fact-finding at the International Court of Justice: An Appraisal in the Aftermath of the Whaling Case. In Leiden Journal of International Law, Volume 29, Issue 2, pp. 529-550. Online: 10.1017/S0922156516000133
  • Mbengue, Makane Moïse. 2016. The South China Sea Arbitration: Innovations in Marine Environmental Fact-Finding and Due Diligence Obligations. AJIL Unbound, Volume 110, pp. 285-289. Online: https://www.asil.org/blogs/symposium-south-china-sea-arbitration-south-china-sea-arbitration-innovations-marine
  • Mbengue, Makane Moïse. 2015. Between Law and Science: A Commentary on the Whaling in the Antarctic case. Questions of International Law, Zoom In, n° 14, pp. 3-12. Online: http://www.qil-qdi.org/weighting-the-evidential-value-of-expert-opinion-the-whaling-case/
  • Mbengue, Makane Moïse; Das, Rukmini. 2015. The ICJ’s Engagement with Science: To Interpret or not to Interpret?. In Journal of International Dispute Settlement, Volume 6, issue 3, pp. 568-577. Online: 10.1093/jnlids/idv023
  • Tignino, Mara. Le fleuve Indus et ses usages – L’arbitrage relatif aux eaux du fleuve Kishenganga. In Annuaire français de droit international Volume 60, 2014, pp. 519-542.
  • Gros, Guillaume. The ICJ’s Handling of Science in the Whaling in the Antarctic Case: A Whale of a Case?. In Journal of International Dispute Settlement, Volume 6, issue 3, 2015, pp. 578-620. Online: 10.1093/jnlids/idv024
  • Tignino, Mara. 2016. Quasi-Judicial Bodies. In: C. Brölmann, Y. Radi (eds), Research Handbook on the Theory and Practice of International Lawmaking (Edward Elgar, Cheltenham) 242-260.
  • Boisson de Chazournes, Laurence. 2016. Outcome Paper for the Seminar on the International Court of Justice at 70: In Retrospect and in Prospect. In: Journal of International Dispute Settlement 7(2) (2016), 238-265. Online: 10.1093/jnlids/idw014
  • Boisson de Chazournes, Laurence. 2016. Introduction to Symposium on the South China Sea Arbitration. In: AJIL Unbound: Symposium on the South China Sea Arbitration 110 (2016) 263.
  • Boisson de Chazournes, Laurence; Gros, Guillaume. 2017. L’expert et le Tribunal international du droit de la mer. In: Les 20 ans du Tribunal international du droit de la mer (Pédone 2017).
  • Boisson de Chazournes, Laurence; Mbengue, Makane; Das, Rukmini; Gros, Guillaume. 2018. One size does not fit all - The Use of Experts before International Courts and Tribunals: An Insight into the Practice. Journal of international Disputes Settlement, (Forthcoming).
  • Boisson de Chazournes, Laurence; Ruiz Fabri, Hélène; Mbengue, Makane; Das, Rukmini; Gros, Guillaume. 2018. The Expert in the International Adjudicative Process: Introduction to the Special Issue. Journal of international Disputes Settlement, (Forthcoming).
Unpublished documents
  • Boisson de Chazournes, Laurence. 2016. L’expert et l’expertise devant la Cour internationale de Justice. Presentation, Seminar held at the International Court of Justice, on 19 April 2016, on the occasion of the 70th Anniversary of the International Court of Justice.
  • Boisson de Chazournes, Laurence. 2016. L’expert et le Tribunal international du droit de la mer. Presentation, Colloquium "Les vingt ans du Tribunal international du droit de la mer", Rennes law and political sciences faculty, organised by the Institut du droit public et de la science politique, 3 june 2016.
  • Gros, Guillaume. 2017. Experts before International Courts and Tribunals. Presentation at the seminar course "Contentieux du droit international de l'environnement", at the Faculty of Law and Political Sciences, University of Aix-Marseille, on 21 January 2017.
  • Das, Rukmini; Gros, Guillaume. 2017. Presentation of results of the research project on experts. Interactive workshop on the theme "expert in International Law", on 13 July 2017, on the occasion of the 53rd International Law Seminar of the United Nations International Law Commission held at the University of Geneva.
  • Mbengue, Makane Moïse. 2017. The Role of Experts in International Courts and Tribunals. Presentation, interactive workshop on the theme "expert in International Law", on 13 July 2017, on the occasion of the 53rd International Law Seminar of the United Nations International Law Commission held at the University of Geneva.
  • Gros, Guillaume. 2017. Unseen actors as unseen experts, ghosts in international adjudication. Presentation, at the conference "Unseen actors in interntional adjudication" organised by the PluriCourts Centre of Excellence (Oslo University) in cooperation with the Europea Instituut (Leiden University), held on 26 and 27 October 2017 in The Hague.
  • Gros, Guillaume. 2018. Unseen actors as unseen experts, ghosts in international adjudication. Presentation at the conference "Unseen actors in interntional adjudication" (forthcoming).
Financed by
Ethical approval No
Study type
Data availability
Source (Updates) Web
Date created 07.05.2018
Date modified 07.05.2018
Start - End date 01.01.2015 - 30.06.2018