411
Bangladesh’s experts have not followed the procedure of cross-examination.
12
As a
matter of fact, the judgment makes direct reference to the reports written by these
experts.
13
In particular, the Tribunal observed that “as confirmed in the experts’
reports presented by Bangladesh during the proceedings, which were not challenged
by Myanmar, the sea floor of the Bay of Bengal is covered by a thick layer of sediments (…) having accumulated in the Bay of Bengal over several thousands of
years”.
14
In other words, the uncontested scientific evidence adduced by the experts
integrating the defensive team helped the Tribunal to identify the existence of
Myanmar’s continental shelf beyond 200 nautical miles—an essential issue of the
dispute.
These two examples seem to demonstrate that party-appointed experts may play
an important role in proceedings. However, some judges criticized the use of this
type of experts since their use is regarded as extraneous to the tradition of a number
of states. In particular, in his separate opinion in the M/V Louisa case, judge Cot,
after noting that the procedures for the examination of witnesses “are modelled on
the common-law rules but are not as rigorous”, emphasized that such procedure
“clearly favours the party with full mastery of the techniques of adversary
procedure”.
15
Nonetheless, until the present moment such an imbalance could not
be verified since the legal teams responsible for the defence of States seem to have
strike a balance by combining members both from common law and civil law
traditions.
12 The only judge who commented upon the evidence given by the experts was judge Lucky, that in
his dissenting opinion stated as follows: “[i]n the instant case the experts in their reports show no
personal interest in the outcome of the dispute. They are not employees of the Bangladesh
Government. The analysis was apparently conducted with care and supported by references. The
reports are complete and thorough, clear and cohesive. The data were not challenged or contradicted. The conclusions in the reports are specific and accurate” (Dispute Concerning Delimitation
of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, Judgment, 14
March 2012, Dissenting opinion of Judge Lucky, p. 245. Judge Lucky also commented on the
independence of the experts: “[s]o, in my opinion while they are not so-called “independent
experts” in the strict legal process because their reports form part of the pleadings of Bangladesh,
their opinions must be respected and I accept them as part of the evidence to be considered”, ibidem,
p. 247.
13 Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar
in the Bay of Bengal, Judgment, para. 444.
14 Ibidem (emphasis added).
15 The M/V “Louisa” Case, Judgment, 28 May 2013, Separate Opinion of Judge Cot, para. 58. In
the concrete case, judge Cot observed that “[i]n the Louisa case, the Spanish side did not object to
the wording of questions put by the American counsel unless it considered the honour of the
Kingdom of Spain to be at stake”.
The Use of Experts by the International Tribunal for the Law of the Sea and Annex VII…
Bangladesh’s experts have not followed the procedure of cross-examination.
12
As a
matter of fact, the judgment makes direct reference to the reports written by these
experts.
13
In particular, the Tribunal observed that “as confirmed in the experts’
reports presented by Bangladesh during the proceedings, which were not challenged
by Myanmar, the sea floor of the Bay of Bengal is covered by a thick layer of sediments (…) having accumulated in the Bay of Bengal over several thousands of
years”.
14
In other words, the uncontested scientific evidence adduced by the experts
integrating the defensive team helped the Tribunal to identify the existence of
Myanmar’s continental shelf beyond 200 nautical miles—an essential issue of the
dispute.
These two examples seem to demonstrate that party-appointed experts may play
an important role in proceedings. However, some judges criticized the use of this
type of experts since their use is regarded as extraneous to the tradition of a number
of states. In particular, in his separate opinion in the M/V Louisa case, judge Cot,
after noting that the procedures for the examination of witnesses “are modelled on
the common-law rules but are not as rigorous”, emphasized that such procedure
“clearly favours the party with full mastery of the techniques of adversary
procedure”.
15
Nonetheless, until the present moment such an imbalance could not
be verified since the legal teams responsible for the defence of States seem to have
strike a balance by combining members both from common law and civil law
traditions.
12 The only judge who commented upon the evidence given by the experts was judge Lucky, that in
his dissenting opinion stated as follows: “[i]n the instant case the experts in their reports show no
personal interest in the outcome of the dispute. They are not employees of the Bangladesh
Government. The analysis was apparently conducted with care and supported by references. The
reports are complete and thorough, clear and cohesive. The data were not challenged or contradicted. The conclusions in the reports are specific and accurate” (Dispute Concerning Delimitation
of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, Judgment, 14
March 2012, Dissenting opinion of Judge Lucky, p. 245. Judge Lucky also commented on the
independence of the experts: “[s]o, in my opinion while they are not so-called “independent
experts” in the strict legal process because their reports form part of the pleadings of Bangladesh,
their opinions must be respected and I accept them as part of the evidence to be considered”, ibidem,
p. 247.
13 Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar
in the Bay of Bengal, Judgment, para. 444.
14 Ibidem (emphasis added).
15 The M/V “Louisa” Case, Judgment, 28 May 2013, Separate Opinion of Judge Cot, para. 58. In
the concrete case, judge Cot observed that “[i]n the Louisa case, the Spanish side did not object to
the wording of questions put by the American counsel unless it considered the honour of the
Kingdom of Spain to be at stake”.
The Use of Experts by the International Tribunal for the Law of the Sea and Annex VII…