416
opinions submitted by the Philippines’”.
35
The Tribunal did not only ask the independent expert to review the Applicant’s claim, but asked them also to review “statements of Chinese officials and scientists”
36
with regard to the environmental impact
of China’s construction activities in the area. These dictum is interesting for two
reasons.
The first reason is because it offers some indications about the function an expert
is requested to perform in the circumstance of non-appearance of one of the parties.
The logic seems to be that, due to the absence of the other party, it is incumbent on
the tribunal a higher testing of evidence through experts. The second reason of interest lies in the fact that hydrographic experts are viewed as “common practice in
Annex VII arbitrations”, thus contrasting with the scarce practice of appointing
experts before ITLOS. In this light, one may hold the view that, to a certain extent,
the “common practice” of expert hydrographers has some resemblances with the
potential appointment of Art. 289 experts: they sit with the arbitrators during the
hearings and participate closely to arbitrators in the drafting of the judgement offering their technical input.
Still in regard to the functions that experts can perform in an Annex VII proceeding, there are two examples that are particularly illustrative on how they positively
contribute to the activities of the tribunal. The first relates to the Guyana/Suriname
Maritime Boundary arbitration, while the second to the South China Sea Arbitration.
I will briefly revert to each one in turn, identifying the main issues concerning the
appearance of experts in these proceedings.
In the Guyana/Suriname Maritime Boundary arbitration,
37
an expert hydrographer was appointed to assist the Court. At the beginning of the hearings, the expert
held a meeting with experts from the parties and asked them information about
geographical coordinates and the situation of a specific marker. By an order, the
Tribunal decided that “the Hydrographer shall, after inviting the Parties’ representatives to be present, conduct a site visit in Guyana”.
38
After the visit, the expert prepared a report which was submitted to the parties. The parties made comments on it
and a “Corrected Report” was submitted to the Tribunal. Both parties accepted the
content of such a report.
39
In addition, the expert prepared a technical report which
was annexed to the award containing the geographical description of the maritime
boundary between the parties. From this example, one can see not only the importance of having experts in order to identify a “common ground” of agreement
between the parties with relation to the factual situation; it also demonstrates that
the cooperation between tribunal-appointed expert and party-appointed experts is a
useful tool in settling disputes with factual background.
35 Ibidem, para. 133.
36 Ibidem, para. 981.
37 Delimitation of the Maritime Boundary between Guyana and Suriname, Award, 17 September
2007.
38 Ibidem, para. 120.
39 Ibidem, paras 124 and 125.
L. C. Lima
opinions submitted by the Philippines’”.
35
The Tribunal did not only ask the independent expert to review the Applicant’s claim, but asked them also to review “statements of Chinese officials and scientists”
36
with regard to the environmental impact
of China’s construction activities in the area. These dictum is interesting for two
reasons.
The first reason is because it offers some indications about the function an expert
is requested to perform in the circumstance of non-appearance of one of the parties.
The logic seems to be that, due to the absence of the other party, it is incumbent on
the tribunal a higher testing of evidence through experts. The second reason of interest lies in the fact that hydrographic experts are viewed as “common practice in
Annex VII arbitrations”, thus contrasting with the scarce practice of appointing
experts before ITLOS. In this light, one may hold the view that, to a certain extent,
the “common practice” of expert hydrographers has some resemblances with the
potential appointment of Art. 289 experts: they sit with the arbitrators during the
hearings and participate closely to arbitrators in the drafting of the judgement offering their technical input.
Still in regard to the functions that experts can perform in an Annex VII proceeding, there are two examples that are particularly illustrative on how they positively
contribute to the activities of the tribunal. The first relates to the Guyana/Suriname
Maritime Boundary arbitration, while the second to the South China Sea Arbitration.
I will briefly revert to each one in turn, identifying the main issues concerning the
appearance of experts in these proceedings.
In the Guyana/Suriname Maritime Boundary arbitration,
37
an expert hydrographer was appointed to assist the Court. At the beginning of the hearings, the expert
held a meeting with experts from the parties and asked them information about
geographical coordinates and the situation of a specific marker. By an order, the
Tribunal decided that “the Hydrographer shall, after inviting the Parties’ representatives to be present, conduct a site visit in Guyana”.
38
After the visit, the expert prepared a report which was submitted to the parties. The parties made comments on it
and a “Corrected Report” was submitted to the Tribunal. Both parties accepted the
content of such a report.
39
In addition, the expert prepared a technical report which
was annexed to the award containing the geographical description of the maritime
boundary between the parties. From this example, one can see not only the importance of having experts in order to identify a “common ground” of agreement
between the parties with relation to the factual situation; it also demonstrates that
the cooperation between tribunal-appointed expert and party-appointed experts is a
useful tool in settling disputes with factual background.
35 Ibidem, para. 133.
36 Ibidem, para. 981.
37 Delimitation of the Maritime Boundary between Guyana and Suriname, Award, 17 September
2007.
38 Ibidem, para. 120.
39 Ibidem, paras 124 and 125.
L. C. Lima