414
expressly specifies that “the Tribunal may consider a later request made prior to the
closure of the oral proceedings, if appropriate in the circumstances of the case”.
Thus far, nor ITLOS or arbitral tribunals have appointed experts under Art. 289.
According to Treves, “the scientific or technical experts as envisaged in Art. 289 are
too close to being judges or arbitrators: they sit with the tribunal and are to be drawn
from the lists set out in Annex VIII for selecting specialized arbitrators, who should
have not only technical, but also legal expertise”.
26
Indeed, Art. 2(3) of Annex VIII
prescribes that experts should possess “competence in the legal, scientific or technical aspects of such field”.
27
Treves’s view finds confirmation if one studies the composition of the lists.
28
The lists are composed not only of scientists and members of
technical agencies from governments, but also of legal scholars, diplomats and barristers. Added to the potential dilution of influence that judges would face in deciding the outcome of the dispute, the appointment of these experts would also have an
impact financially on the budget of the Tribunal.
4 Tribunal-Appointed Experts: Towards a “Common”
Practice?
In addition to the experts envisaged by Art. 289, tribunals constituted under
UNCLOS may appoint independent experts to participate in the proceedings.
Although both the rules of ITLOS and Annex VII tribunals provide for the possibility of appointing experts, there appears to exist some discrepancy when the practice
of these tribunals is compared. While ITLOS has never made recourse to its powers
under Art. 82 of its Rules, the recourse to independent experts by Annex VII tribunals seems to be the rule.
29
That may lead one to query the reasons for such a phenomenon. In order to offer some tentative answers to this question, I will illustrate
the practice of tribunal-appointed experts before Annex VII arbitral tribunals by
briefly examining three issues: (1) the rules for the appointment and nomination of
experts; (2) the distinct functions tribunal-appointed experts may perform in Annex
VII disputes; and finally (3) the discrepancy in the use of experts between ITLOS
and Annex VII arbitral tribunals.
The broad formulation of the ITLOS 2009 Rules, especially its Art. 82, guarantee to the Tribunal ample powers in relation to the appointment, the scope of functions and the process of examination of experts. Such provision, in addition to
establishing the right of the tribunal to nominate experts, sets forth the right of the
26 Treves (2012), p. 485.
27 Emphasis added.
28 The lists are available at the website of the Division for Ocean Affairs and the Law of the Sea of
UN (available at www.un.org/Depts/los/settlement_of_disputes/experts_special_arb.htm).
29 Barbados v. Trinidad and Tobago; PCA, Delimitation of the Maritime Boundary between Guyana
and Suriname; PCA, The Bay of Bengal Maritime Boundary Arbitration Between the People’s
Republic of Bangladesh and The Republic of India; The South China Sea Arbitration.
L. C. Lima
expressly specifies that “the Tribunal may consider a later request made prior to the
closure of the oral proceedings, if appropriate in the circumstances of the case”.
Thus far, nor ITLOS or arbitral tribunals have appointed experts under Art. 289.
According to Treves, “the scientific or technical experts as envisaged in Art. 289 are
too close to being judges or arbitrators: they sit with the tribunal and are to be drawn
from the lists set out in Annex VIII for selecting specialized arbitrators, who should
have not only technical, but also legal expertise”.
26
Indeed, Art. 2(3) of Annex VIII
prescribes that experts should possess “competence in the legal, scientific or technical aspects of such field”.
27
Treves’s view finds confirmation if one studies the composition of the lists.
28
The lists are composed not only of scientists and members of
technical agencies from governments, but also of legal scholars, diplomats and barristers. Added to the potential dilution of influence that judges would face in deciding the outcome of the dispute, the appointment of these experts would also have an
impact financially on the budget of the Tribunal.
4 Tribunal-Appointed Experts: Towards a “Common”
Practice?
In addition to the experts envisaged by Art. 289, tribunals constituted under
UNCLOS may appoint independent experts to participate in the proceedings.
Although both the rules of ITLOS and Annex VII tribunals provide for the possibility of appointing experts, there appears to exist some discrepancy when the practice
of these tribunals is compared. While ITLOS has never made recourse to its powers
under Art. 82 of its Rules, the recourse to independent experts by Annex VII tribunals seems to be the rule.
29
That may lead one to query the reasons for such a phenomenon. In order to offer some tentative answers to this question, I will illustrate
the practice of tribunal-appointed experts before Annex VII arbitral tribunals by
briefly examining three issues: (1) the rules for the appointment and nomination of
experts; (2) the distinct functions tribunal-appointed experts may perform in Annex
VII disputes; and finally (3) the discrepancy in the use of experts between ITLOS
and Annex VII arbitral tribunals.
The broad formulation of the ITLOS 2009 Rules, especially its Art. 82, guarantee to the Tribunal ample powers in relation to the appointment, the scope of functions and the process of examination of experts. Such provision, in addition to
establishing the right of the tribunal to nominate experts, sets forth the right of the
26 Treves (2012), p. 485.
27 Emphasis added.
28 The lists are available at the website of the Division for Ocean Affairs and the Law of the Sea of
UN (available at www.un.org/Depts/los/settlement_of_disputes/experts_special_arb.htm).
29 Barbados v. Trinidad and Tobago; PCA, Delimitation of the Maritime Boundary between Guyana
and Suriname; PCA, The Bay of Bengal Maritime Boundary Arbitration Between the People’s
Republic of Bangladesh and The Republic of India; The South China Sea Arbitration.
L. C. Lima