412
3 The Assessor-Like Expert of Art. 289 UNCLOS: “An
Innovation” with No Practice
Considered by Rosenne as an important innovation through which “the concept of
enlisting qualified scientific experts in a binding decision-making process has been
introduced into modern international law”,
16
Art. 289 UNCLOS provides that,
[i]n any dispute involving scientific or technical matters, a court or tribunal exercising jurisdiction under this section may, at the request of a party or proprio motu, select in consultation with the parties no fewer than two scientific or technical experts chosen preferably
from the relevant list prepared in accordance with Annex VIII, article 2, to sit with the court
or tribunal but without the right to vote.
In addition, the resolution on the internal judicial practice of ITLOS expressly
provides for the possibility of experts being consulted by the drafting committee.
17
This category of experts appears to correspond to the assessors provided by the
Statute of ICJ
18
: they sit with the judges during the oral proceedings, take part in the
private deliberations
19
and, like judges, receive all the documents related to the case
in advance.
20
Art. 289 experts shall be “chosen preferably from the relevant list prepared in accordance with Annex VIII, article 2” of the Convention. Annex VIII
UNCLOS provides a particular procedure for “Special Arbitration”, i.e., arbitration
following special procedures.
21
A special feature of this arbitration is that, in addition to adjudicators versed in law, the arbitral tribunal is also composed of scientific/
technical experts. The main idea conveyed by this Annex was the maintenance of
permanent lists of expert-arbitrators, which States can use in technical disputes on
16 Rosenne (2007), p. 245.
17 Art. 10 of the Resolution on the internal judicial practice of the Tribunal.
18 In this vein, Nordquist (1989), p. 51 observed that “[a]t the ninth and resumed ninth sessions
(both 1980), it was pointed out that the experts to be appointed under article 289 are not ordinary
experts acting as witnesses before the court or tribunal and presenting to the court or tribunal an
expert opinion which may be challenged by any party and which may be contradicted by another
expert opinion. The experts under article 289 are in fact ‘assessors’, within the meaning of Article
30, paragraph 2, of the Statute of the International Court of Justice”.
19 Art. 42(2) of the Rules of the Tribunal sets forth that “[o]nly judges and any experts appointed in
accordance with article 289 of the Convention take part in the Tribunal’s judicial deliberations. The
Registrar, or his Deputy, and other members of the staff of the Registry as may be required shall be
present. No other person shall be present except by permission of the Tribunal”.
20 Art. 10 the Resolution on the internal judicial practice of the Tribunal of the sets forth that
“experts appointed under article 289 of the Convention for a particular case before the Tribunal
shall be sent copies of the written pleadings and other documents in the case in good time before
the beginning of the deliberations”.
21 On this issue, see Nordquist (1989), pp. 441 ff.
L. C. Lima
3 The Assessor-Like Expert of Art. 289 UNCLOS: “An
Innovation” with No Practice
Considered by Rosenne as an important innovation through which “the concept of
enlisting qualified scientific experts in a binding decision-making process has been
introduced into modern international law”,
16
Art. 289 UNCLOS provides that,
[i]n any dispute involving scientific or technical matters, a court or tribunal exercising jurisdiction under this section may, at the request of a party or proprio motu, select in consultation with the parties no fewer than two scientific or technical experts chosen preferably
from the relevant list prepared in accordance with Annex VIII, article 2, to sit with the court
or tribunal but without the right to vote.
In addition, the resolution on the internal judicial practice of ITLOS expressly
provides for the possibility of experts being consulted by the drafting committee.
17
This category of experts appears to correspond to the assessors provided by the
Statute of ICJ
18
: they sit with the judges during the oral proceedings, take part in the
private deliberations
19
and, like judges, receive all the documents related to the case
in advance.
20
Art. 289 experts shall be “chosen preferably from the relevant list prepared in accordance with Annex VIII, article 2” of the Convention. Annex VIII
UNCLOS provides a particular procedure for “Special Arbitration”, i.e., arbitration
following special procedures.
21
A special feature of this arbitration is that, in addition to adjudicators versed in law, the arbitral tribunal is also composed of scientific/
technical experts. The main idea conveyed by this Annex was the maintenance of
permanent lists of expert-arbitrators, which States can use in technical disputes on
16 Rosenne (2007), p. 245.
17 Art. 10 of the Resolution on the internal judicial practice of the Tribunal.
18 In this vein, Nordquist (1989), p. 51 observed that “[a]t the ninth and resumed ninth sessions
(both 1980), it was pointed out that the experts to be appointed under article 289 are not ordinary
experts acting as witnesses before the court or tribunal and presenting to the court or tribunal an
expert opinion which may be challenged by any party and which may be contradicted by another
expert opinion. The experts under article 289 are in fact ‘assessors’, within the meaning of Article
30, paragraph 2, of the Statute of the International Court of Justice”.
19 Art. 42(2) of the Rules of the Tribunal sets forth that “[o]nly judges and any experts appointed in
accordance with article 289 of the Convention take part in the Tribunal’s judicial deliberations. The
Registrar, or his Deputy, and other members of the staff of the Registry as may be required shall be
present. No other person shall be present except by permission of the Tribunal”.
20 Art. 10 the Resolution on the internal judicial practice of the Tribunal of the sets forth that
“experts appointed under article 289 of the Convention for a particular case before the Tribunal
shall be sent copies of the written pleadings and other documents in the case in good time before
the beginning of the deliberations”.
21 On this issue, see Nordquist (1989), pp. 441 ff.
L. C. Lima