Experts and International Courts and Tribunals
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.
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.
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.
|Ethical approval||No||Study type||
|Start - End date||01.01.2015 - 30.06.2018|