Friday, July 12, 2013

Expertise, ICJ and WTO

Came across this interesting brief in the International Law Reporter about the role of experts in the ICJ decision making process. It was referring to Caroline E Foster's article titled " New Clothes for the Emperor? Consultation of Experts by the International Court of Justice".

Article 50 of the Statute of the International Court of Justice states:
"“The Court may, at any time, entrust any individual, body, bureau, commission or other organisation that it may select, with the task of carrying out an enquiry or giving an expert opinion.”
Commenting on the inadequate reliance of expert opinion of the ICJ of expert opinion the author relies heavily on the practise of the panels and Appellate Body of the WTO in the use of expert opinion:
"Practice in the World Trade Organisation (WTO)’s dispute settlement procedures provides helpful insights on a number of matters central to this article. The direct transposition of WTO procedures into the practice of the Court is not necessarily advocated, but this author's prior close study of the records of WTO panels' consultations with independent scientific experts yields valuable perspectives on how adjudicators may interact with independent experts in open-ended policy-based disputes. So far as the parties’ agreement to such a process is concerned, the preference in the appointment of independent experts in the course of dispute settlement proceedings in the WTO is understandably for panels to appoint experts with the parties’ agreement. However, a panel may do so acting on its own initiative, as seen in the case of United States – Import Prohibition of Certain Shrimps and Shrimp Products29 and the consultation of independent experts has also taken place where the parties do not agree on the need for a panel to do so.30 Even those parties disagreeing on the need for the panel to appoint independent experts have participated in the written and oral procedures by which these experts are consulted.31"
 The article referes in great detail to the procedures and processes of expert opinion by the dispute settlement mechanism of the WTO. Another important point made was on what was being relied on in the case of expert opinion:
"In the WTO it has proved helpful to establish a sense that the experts’ “mandate” is limited to assisting panels to “understand and evaluate the evidence submitted and the arguments made”158 but that “the answering of a legal question which will determine whether a party is in breach of the WTO Agreements cannot be delegated to experts”.159 Experts are expressly requested to refrain, in their written and oral testimony, from expressing views on the legal issues,160 and it is understood that, should they do so, this should carry no weight. However, the mixed legal and scientific nature of many of the rules of WTO law has blurred the boundaries slightly in practice.161"
Now, this is a very tricky area - where does expert opinion end and legalese begin? Where does one draw the line? The TBT and SPS Agreements have complex scientific questions to be answered that overlap precariously with legal questions. The Subsidies Agreement is inextricably linked with economic expertise. How often does it get blurred? Is there a middle path?

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