419
demonstrated that either ITLOS and Annex VII tribunals have at their disposal several instruments that can allow them to aptly solve questions involving technical and
scientific evidence. With the passing of time, some practices are now regarded as
“common practice” of Annex VII arbitrations. It is not clear whether ITLOS would
follow these practices, should a similar case appear before it. In the two maritime
delimitations cases submitted to it, no hydrographer expert was clearly appointed by
the Tribunal.
The ample variety of methods to introduce scientific input into the proceedings
also allow a combination of different procedures. When party-appointed experts and
tribunal-appointed experts interact during the proceedings, one cannot avoid the
impression that the shortcomings of each category of expert is reduced. Moreover,
the combination also seems to strike a balance between the common law and civil
law aspects of the judicial process. Procedures which privileges transparency, due
process, independence and impartiality seems to be fundamental to guarantee a
proper functioning of the dispute settlement system orchestrated by the Law of the
Sea Convention.
When one compares the practice of these two tribunals with other international
tribunals, such as the ICJ, for instance, it is possible to identify some particular
features. First, it appears that the practice of Annex VII tribunals reveals greater
creativity. Different forms of gathering expert-input are combined, and distinct and
new methods are empowered in order to benefit from different sources of expert
evidence. In this regard, the second feature is the growing flexibility of having different forms of experts in the same proceedings. The third and last point is that it
seems that some of potentialities of the procedural instruments are still open for
exploration. The clearest examples are the assessor-like experts of Art. 289 and the
phenomenon of “listing”. These three elements show the uniqueness of the practice
of ITLOS and Annex VII arbitral tribunals and which might serve also as a “good
practice” to be followed by other adjudicative organs.
While this study only focuses on procedural aspects, it must be recalled that
when experts appear in international judicial proceeding the question at stake is not
simply what are the procedural instruments at an international court’s disposal to
accurately settle technical or scientific disputes. What is ultimately at stake is also
the legitimacy and effectiveness of such tribunals for settling complex disputes—a
feature which has been steadily growing in international adjudication of law of the
sea disputes.
References
Alvarez JE (2011) Are international judges afraid of science? A comment on Mbengue. Loyola
Los Angeles Int Comp Law Rev 34:81–98
Anderson D (2008) Modern law of the sea - selected essays. Nijhoff, Leiden
D’Aspremont J, Mbengue M (2014) Strategies of engagement with scientific fact-finding in international adjudication. J Int Dispute Settlement 5:240–272
The Use of Experts by the International Tribunal for the Law of the Sea and Annex VII…
demonstrated that either ITLOS and Annex VII tribunals have at their disposal several instruments that can allow them to aptly solve questions involving technical and
scientific evidence. With the passing of time, some practices are now regarded as
“common practice” of Annex VII arbitrations. It is not clear whether ITLOS would
follow these practices, should a similar case appear before it. In the two maritime
delimitations cases submitted to it, no hydrographer expert was clearly appointed by
the Tribunal.
The ample variety of methods to introduce scientific input into the proceedings
also allow a combination of different procedures. When party-appointed experts and
tribunal-appointed experts interact during the proceedings, one cannot avoid the
impression that the shortcomings of each category of expert is reduced. Moreover,
the combination also seems to strike a balance between the common law and civil
law aspects of the judicial process. Procedures which privileges transparency, due
process, independence and impartiality seems to be fundamental to guarantee a
proper functioning of the dispute settlement system orchestrated by the Law of the
Sea Convention.
When one compares the practice of these two tribunals with other international
tribunals, such as the ICJ, for instance, it is possible to identify some particular
features. First, it appears that the practice of Annex VII tribunals reveals greater
creativity. Different forms of gathering expert-input are combined, and distinct and
new methods are empowered in order to benefit from different sources of expert
evidence. In this regard, the second feature is the growing flexibility of having different forms of experts in the same proceedings. The third and last point is that it
seems that some of potentialities of the procedural instruments are still open for
exploration. The clearest examples are the assessor-like experts of Art. 289 and the
phenomenon of “listing”. These three elements show the uniqueness of the practice
of ITLOS and Annex VII arbitral tribunals and which might serve also as a “good
practice” to be followed by other adjudicative organs.
While this study only focuses on procedural aspects, it must be recalled that
when experts appear in international judicial proceeding the question at stake is not
simply what are the procedural instruments at an international court’s disposal to
accurately settle technical or scientific disputes. What is ultimately at stake is also
the legitimacy and effectiveness of such tribunals for settling complex disputes—a
feature which has been steadily growing in international adjudication of law of the
sea disputes.
References
Alvarez JE (2011) Are international judges afraid of science? A comment on Mbengue. Loyola
Los Angeles Int Comp Law Rev 34:81–98
Anderson D (2008) Modern law of the sea - selected essays. Nijhoff, Leiden
D’Aspremont J, Mbengue M (2014) Strategies of engagement with scientific fact-finding in international adjudication. J Int Dispute Settlement 5:240–272
The Use of Experts by the International Tribunal for the Law of the Sea and Annex VII…