418
scholars
42
for the harm they may provoke to the transparency of the proceedings
and, as a consequence, to the principle of due process.
One may additionally mention the view according to which international judges
are reluctant to appoint experts because they are worried to lose ground in the
decision- making process.
43
If one deems this view convincing, it could be said that
the reticence tends to be greater in the context of ITLOS since the law of the sea
generally touches upon questions with a higher technical nature. It is noteworthy, in
this regard, that in the South China Sea Arbitration, during the process of nomination of the independent hydrographer, Philippines proposed a clarification in the
Terms of Reference by adding that “the Expert shall respect that it is the Arbitral
Tribunal, and not the Expert, that makes any determination as to legal questions”.
44
This attitude might be indicative of certain States’ concerns about the role that
experts might assume in extremely technical disputes.
We can only speculate about the reasons why annex VII tribunals seem more
prone to recur to experts. A tentative explanation might lie in the fact that traditionally international arbitration has been marked by flexibility and adaptability of its
procedure when compared to permanent adjudication.
45
Besides, the PCA—which
usually serves as a registry for Annex VII tribunals constituted under UNCLOS—
seems to favour the use of independent experts in order to improve, as noted by one
author, “the tribunal’s understanding of the issues at hand and, if party-appointed
experts have also reported on these issues, in facilitating the tribunal’s evaluation of
any diverging views”.
46
Either in the Guyana/Suriname or in the South China Sea, the tribunal-appointed
experts acted along with party-appointed experts. While in the first case it is possible to affirm that this combined approach contributed to the acceptance of the judgment by the parties on technical grounds, in the second case the function displayed
by the experts seems to add to the factual legitimacy of the judgment and constitute
a valuable practice to be followed since they add to the perception that the judgment
is well grounded in facts. On the other hand, the case serves also as an example that
the manner through which a certain tribunal has marshalled technical and expert
evidence is not necessarily sufficient to pull for compliance.
5 Conclusive Remarks
Given the potential concurrence between international tribunals, an improvement or
refinement of evidentiary procedures seems to be feasible and useful, particularly in
the context of science-heavy disputes. The examination conducted have
42 See Daly et al. (2014).
43 See Alvarez (2011), and D’Aspremont and Mbengue (2014).
44 The South China Sea Arbitration, Award, para 58.
45 In this regard, see Gray and Kingsbury (1993) and Malintoppi (2006).
46 Daly et al. (2014), p. 116.
L. C. Lima
scholars
42
for the harm they may provoke to the transparency of the proceedings
and, as a consequence, to the principle of due process.
One may additionally mention the view according to which international judges
are reluctant to appoint experts because they are worried to lose ground in the
decision- making process.
43
If one deems this view convincing, it could be said that
the reticence tends to be greater in the context of ITLOS since the law of the sea
generally touches upon questions with a higher technical nature. It is noteworthy, in
this regard, that in the South China Sea Arbitration, during the process of nomination of the independent hydrographer, Philippines proposed a clarification in the
Terms of Reference by adding that “the Expert shall respect that it is the Arbitral
Tribunal, and not the Expert, that makes any determination as to legal questions”.
44
This attitude might be indicative of certain States’ concerns about the role that
experts might assume in extremely technical disputes.
We can only speculate about the reasons why annex VII tribunals seem more
prone to recur to experts. A tentative explanation might lie in the fact that traditionally international arbitration has been marked by flexibility and adaptability of its
procedure when compared to permanent adjudication.
45
Besides, the PCA—which
usually serves as a registry for Annex VII tribunals constituted under UNCLOS—
seems to favour the use of independent experts in order to improve, as noted by one
author, “the tribunal’s understanding of the issues at hand and, if party-appointed
experts have also reported on these issues, in facilitating the tribunal’s evaluation of
any diverging views”.
46
Either in the Guyana/Suriname or in the South China Sea, the tribunal-appointed
experts acted along with party-appointed experts. While in the first case it is possible to affirm that this combined approach contributed to the acceptance of the judgment by the parties on technical grounds, in the second case the function displayed
by the experts seems to add to the factual legitimacy of the judgment and constitute
a valuable practice to be followed since they add to the perception that the judgment
is well grounded in facts. On the other hand, the case serves also as an example that
the manner through which a certain tribunal has marshalled technical and expert
evidence is not necessarily sufficient to pull for compliance.
5 Conclusive Remarks
Given the potential concurrence between international tribunals, an improvement or
refinement of evidentiary procedures seems to be feasible and useful, particularly in
the context of science-heavy disputes. The examination conducted have
42 See Daly et al. (2014).
43 See Alvarez (2011), and D’Aspremont and Mbengue (2014).
44 The South China Sea Arbitration, Award, para 58.
45 In this regard, see Gray and Kingsbury (1993) and Malintoppi (2006).
46 Daly et al. (2014), p. 116.
L. C. Lima