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Published online by Cambridge University Press: 20 January 2017
Beneath the calm and measured prose of Dr. Caroline Foster lies a tsunami for the field of risk assessment in international adjudication.
Dr. Foster, a senior lecturer at the Faculty of Law, University of Auckland, looks boldly in the eye the difficult question of the influence of scientific evidence on international courts and tribunals. In an era where international law is endeavouring to come to terms with environmental protection, sustainable development, and public health and safety regulations and policies, international tribunals are called upon to adjudicate matters of extreme scientific complexity and, in this context, to understand the scientific approach to risk. One can no longer escape the realisation that judges and arbitrators on international tribunals rely on scientific expertise, and that this has a significant impact on their decision-making. This is one of the central tenets of Dr. Foster's book, and the basis for her analysis.
1 For a different take on fragmentation, see Bjorklund, A.K. and Nappert, S., “Beyond Fragmentation”, in Weiler, T and Baetens, F (eds), New Directions in International Economic Law: In Memoriam Thomas Wålde (Nijhoff, 2011), also available on SSRN at <http://ssrn.com/abstract=1739997>Google Scholar. The contribution of investor-to-State arbitration to the mushrooming of the number of international tribunals is significant: in 2010, the International Center for the Settlement of Investment Disputes (ICSID) reported 27 new cases, a 12% increase on the previous year. As at 30 June 2010, ICSID had registered 319 cases since its inception, half of which are still being administered (ICSID Annual Report 2010, available on the Internet at <http://icsid.worldbank.org>, last accessed on 31 October 2011).
2 Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports 2010. The case concerned a claim by Argentina that Uruguay, in allowing the building and operation of two pulp mills on the River Uruguay, a common boundary between the two States, was in violation of the 1975 Statute of the River Uruguay and other international law, including the international law relating to watercourses. The ICJ found that Uruguay had breached its procedural obligations of prior notification under the Statute, but not its substantive obligations. Argentina was held not have discharged the burden of proving that one of the mills had harmful effects contravening the Statute, and its claim that the burden of proving compliance should be shifted to Uruguay was dismissed. It is notable that the scientific experts before the ICJ appeared as advocates, not witnesses, and thus not subjected to cross-examination.
3 Ibid., Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, paras. 3–4.
4 Available on the Internet at <http://www.ibanet.org> (last accessed on 31 October 2011).
5 Page 79.
6 Page 98.
7 Kantor, M., “Is there a Code of Conduct for Party-Appointed Experts in International Arbitration?”, in Hobér, K., Magnusson, A., Öhrström, M. (eds), Between East and West: Essays in Honour of Ulf Franke (Juris, 2010)Google Scholar.
8 England is one such jurisdiction: Rule 35.3 of the Civil Procedure Rules.
9 Joint Dissenting Opinion, supra note 3, para. 24.
10 Clearly stated as such by the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea in its Advisory Opinion in Case No 17: Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, 1 February 2011, para. 135, available on the Internet at http://www.itlos.org (last accessed on 31 October 2011). It is worth noting that the ICJ refrained from making similar pronouncements in the Pulp Mills case, despite both Argentina and Uruguay agreeing that the precautionary approach found application on the facts of the case.
11 Page 4.
12 Page 3.
13 The sole authority quoted in support of this proposition is Chester Brown, A Common Law of International Adjudication, OUP 2007. Dr. Brown's thesis and research form an important part of the body of scholarship on fragmentation; however they are by no means an expression of settled law or practice.
14 Page 3.
15 S. Cho, “Of the World Trade Court's Burden” [2009] EJIL 675, 726.