415
parties to be heard in the process of choice and nomination of experts and also their
right to comment upon “every report or record of an inquiry and every expert
opinion”.
30
The same observance to the principle of due process can be verified in
the rules governing arbitral tribunals constituted under annex VII, which are usually
guaranteed in the autonomous Rules of Procedure.
31
When one compares the Rules
of Procedure of arbitral tribunals with their UNCLOS counterpart, some small distinctions can be identified. For instance, rules of arbitral tribunals sometimes include
provisions for objecting to experts (their qualifications, impartiality and independence), the parties’ duty to cooperate with independent experts (including their obligation to provide any relevant information), and detailed rules for the examination
of the experts. Nonetheless, nothing suggests that the specificity of rules of arbitral
tribunals is a reason that significantly influences the recourse to experts in those
instances. It is true that, in addition to the detailed rules for experts in the rules of
procedure, the work of tribunal-appointed experts is also subjected to terms of reference which establish the framework of the powers and tasks to be accomplished by
experts. However, such terms of reference seem to be an established practiced also
followed by permanent tribunals and there are no reasons to believe that this practice will not be followed by ITLOS, should it appoint experts under Art. 82.
Evidently, the functions that independent experts can perform in a dispute may
vary accordingly to the subject of the dispute. For instance, when it comes to maritime delimitations, experts are often nominated to assist tribunals in calculating the
coordinates of a boundary, to prepare maps illustrating the delimitation decided by
the tribunal and to perform the test of proportionality required in such delimitations.
These operations are usually assembled in a technical report which is annexed to the
arbitral award. Nothing excludes the possibility of different experts performing different functions. In the South China Sea arbitration, for instance, the Arbitral
Tribunal has nominated not only an expert hydrographer to assist the tribunal in its
activities,
32
but also appointed an expert “to provide an independent opinion on
whether the Chinese construction activities in the Spratly Islands have a detrimental
effect on the coral reef systems”.
33
In a subsequent phase, the Arbitral Tribunal
decided to appoint “two additional coral reef experts to collaborate”
34
with the second expert and to prepare a report.
A factor that may probably have influenced the Arbitral Tribunal in South China
Sea in the appointment of different experts is the fact that one of the parties was not
present in the proceedings. In this regard, the Arbitral Tribunal has pointed out that
“while the appointment of hydrographic experts is common practice in Annex VII
arbitrations, in light of China’s non-participation, [the hydrographic expert] was
also tasked with assisting with a ‘critical assessment of relevant expert advice and
30 Art. 82(2) of the 2009 Rules of the Tribunal.
31 See, for instance, South China Sea Rules of Procedure, Art. 24.
32 The South China Sea Arbitration, Award, 12 July 2016, para. 58.
33 Ibidem, para. 84.
34 Ibidem, para. 90.
The Use of Experts by the International Tribunal for the Law of the Sea and Annex VII…
parties to be heard in the process of choice and nomination of experts and also their
right to comment upon “every report or record of an inquiry and every expert
opinion”.
30
The same observance to the principle of due process can be verified in
the rules governing arbitral tribunals constituted under annex VII, which are usually
guaranteed in the autonomous Rules of Procedure.
31
When one compares the Rules
of Procedure of arbitral tribunals with their UNCLOS counterpart, some small distinctions can be identified. For instance, rules of arbitral tribunals sometimes include
provisions for objecting to experts (their qualifications, impartiality and independence), the parties’ duty to cooperate with independent experts (including their obligation to provide any relevant information), and detailed rules for the examination
of the experts. Nonetheless, nothing suggests that the specificity of rules of arbitral
tribunals is a reason that significantly influences the recourse to experts in those
instances. It is true that, in addition to the detailed rules for experts in the rules of
procedure, the work of tribunal-appointed experts is also subjected to terms of reference which establish the framework of the powers and tasks to be accomplished by
experts. However, such terms of reference seem to be an established practiced also
followed by permanent tribunals and there are no reasons to believe that this practice will not be followed by ITLOS, should it appoint experts under Art. 82.
Evidently, the functions that independent experts can perform in a dispute may
vary accordingly to the subject of the dispute. For instance, when it comes to maritime delimitations, experts are often nominated to assist tribunals in calculating the
coordinates of a boundary, to prepare maps illustrating the delimitation decided by
the tribunal and to perform the test of proportionality required in such delimitations.
These operations are usually assembled in a technical report which is annexed to the
arbitral award. Nothing excludes the possibility of different experts performing different functions. In the South China Sea arbitration, for instance, the Arbitral
Tribunal has nominated not only an expert hydrographer to assist the tribunal in its
activities,
32
but also appointed an expert “to provide an independent opinion on
whether the Chinese construction activities in the Spratly Islands have a detrimental
effect on the coral reef systems”.
33
In a subsequent phase, the Arbitral Tribunal
decided to appoint “two additional coral reef experts to collaborate”
34
with the second expert and to prepare a report.
A factor that may probably have influenced the Arbitral Tribunal in South China
Sea in the appointment of different experts is the fact that one of the parties was not
present in the proceedings. In this regard, the Arbitral Tribunal has pointed out that
“while the appointment of hydrographic experts is common practice in Annex VII
arbitrations, in light of China’s non-participation, [the hydrographic expert] was
also tasked with assisting with a ‘critical assessment of relevant expert advice and
30 Art. 82(2) of the 2009 Rules of the Tribunal.
31 See, for instance, South China Sea Rules of Procedure, Art. 24.
32 The South China Sea Arbitration, Award, 12 July 2016, para. 58.
33 Ibidem, para. 84.
34 Ibidem, para. 90.
The Use of Experts by the International Tribunal for the Law of the Sea and Annex VII…