410
arbitral tribunals (particularly those constituted under the auspices of the PCA) have
been providing that “no expert witness may be heard unless he or she has provided
a written expert report”.
9
Such a normative development may be regarded as positive as it facilitates the examination and enhances the celerity of the proceedings.
This may be explained by the fact that it gives the parties (and also the bench)
opportunity to study in advance the content of the expert opinion and identify potential flaws and difficulties. In the context of the ICJ, for instance, the previous written
report allows the Court to avoid the presentation of the expert report and pass
directly to the cross-examination phase. This procedure seems to draw inspiration
from commercial arbitration.
The use of party-appointed experts raises at least two questions. The first regards
how tribunals perceive the impartiality and independence of these experts. The second issue relates to how these tribunals marshal the evidence presented by ex parte
experts.
No doubt, the fact that party-appointed experts are subjected to oral examination
and cross-examination and have to make a public oath are elements which, at least
from a theoretical viewpoint, enhance their impartiality and independence. However,
the problem of the close relationship between expert and party remains. At the end
of the day, they are perceived as “hired guns” of one of the parties. As it is expected,
this character is frequently stressed by the opposite party as a strategy to undermine
the authority of the expert statement. When party-appointed experts are not crossexamined, these doubts can be even greater.
As to the importance attached by tribunals to the evidence emerging through
experts’ examination, in several situations, ex parte experts helped the tribunal to
identify the agreed factual background of a dispute. For instance, in Barbados v.
Trinidad and Tobago,
10
the arbitral tribunal used the agreement of the parties’
experts to reinforce its decision with regard to the method of the delimitation of the
EEZ and the continental shelf. The tribunal observed that “technical experts of the
Parties have also been in agreement about the identification of the appropriate base
points and the methodology to be used to this effect”.
11
The criteria of giving weight
to the agreement between parties’ experts corresponds to the attitude adopted by
other international tribunals, notably the ICJ, with regard to party-appointed experts:
the tribunal can use their agreement to reinforce a finding on certain facts.
Another criterion which frequently is employed by international tribunals to
weigh party-appointed experts is the attribution of greater value to uncontested
expert evidence. In this sense, in the Bangladesh/Myanmar Maritime Boundary
Delimitation, Bangladesh had experts integrating their legal teams as “independent
experts” and they did not testify nor were submitted to cross-examination. As
expected, their “independence” was contested by Myanmar during the oral hearings. However, the Tribunal has not extracted any inference from the fact that
9 PCA, South China Sea Arbitration (Philippines v. China), Rules of Procedure, Art. 23(4).
10 PCA, Barbados v. Trinidad and Tobago, Award, 11 April 2006.
11 Ibidem, para. 307.
L. C. Lima
arbitral tribunals (particularly those constituted under the auspices of the PCA) have
been providing that “no expert witness may be heard unless he or she has provided
a written expert report”.
9
Such a normative development may be regarded as positive as it facilitates the examination and enhances the celerity of the proceedings.
This may be explained by the fact that it gives the parties (and also the bench)
opportunity to study in advance the content of the expert opinion and identify potential flaws and difficulties. In the context of the ICJ, for instance, the previous written
report allows the Court to avoid the presentation of the expert report and pass
directly to the cross-examination phase. This procedure seems to draw inspiration
from commercial arbitration.
The use of party-appointed experts raises at least two questions. The first regards
how tribunals perceive the impartiality and independence of these experts. The second issue relates to how these tribunals marshal the evidence presented by ex parte
experts.
No doubt, the fact that party-appointed experts are subjected to oral examination
and cross-examination and have to make a public oath are elements which, at least
from a theoretical viewpoint, enhance their impartiality and independence. However,
the problem of the close relationship between expert and party remains. At the end
of the day, they are perceived as “hired guns” of one of the parties. As it is expected,
this character is frequently stressed by the opposite party as a strategy to undermine
the authority of the expert statement. When party-appointed experts are not crossexamined, these doubts can be even greater.
As to the importance attached by tribunals to the evidence emerging through
experts’ examination, in several situations, ex parte experts helped the tribunal to
identify the agreed factual background of a dispute. For instance, in Barbados v.
Trinidad and Tobago,
10
the arbitral tribunal used the agreement of the parties’
experts to reinforce its decision with regard to the method of the delimitation of the
EEZ and the continental shelf. The tribunal observed that “technical experts of the
Parties have also been in agreement about the identification of the appropriate base
points and the methodology to be used to this effect”.
11
The criteria of giving weight
to the agreement between parties’ experts corresponds to the attitude adopted by
other international tribunals, notably the ICJ, with regard to party-appointed experts:
the tribunal can use their agreement to reinforce a finding on certain facts.
Another criterion which frequently is employed by international tribunals to
weigh party-appointed experts is the attribution of greater value to uncontested
expert evidence. In this sense, in the Bangladesh/Myanmar Maritime Boundary
Delimitation, Bangladesh had experts integrating their legal teams as “independent
experts” and they did not testify nor were submitted to cross-examination. As
expected, their “independence” was contested by Myanmar during the oral hearings. However, the Tribunal has not extracted any inference from the fact that
9 PCA, South China Sea Arbitration (Philippines v. China), Rules of Procedure, Art. 23(4).
10 PCA, Barbados v. Trinidad and Tobago, Award, 11 April 2006.
11 Ibidem, para. 307.
L. C. Lima