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The Use of Experts in WTO Dispute Settlement

Published online by Cambridge University Press:  17 January 2008

Joost Pauwelyn
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Extract

In seven years of WTO dispute settlement (1995–2001), six panels appointed scientific experts,2 two panels requested expert advice from other international organisations3 and one panel nominated a linguistic expert.4 Under GATT 1947, in contrast, only one panel saw the need to seek expert advice.5 Very often also the parties to a WTO dispute nominate experts on their delegation, be they lawyers, economists, scientists or linguists. In addition, an increasing number of ‘outsiders’ or amici curiae, such as NGOs, but also industry and academics, have pressed their (expert) opinion on WTO panels and the Appellate Body.

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Articles
Information
International & Comparative Law Quarterly , Volume 51 , Issue 2 , April 2002 , pp. 325 - 364
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Copyright © British Institute of International and Comparative Law 2002

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References

2 European Communities—Measures Affecting Livestock and Meat (Hormones), complaint by Canada (WT/DS48) and complaint by the United States (WT/DS26), Panel and Appellate Body reports adopted on 13 Feb 1998 [hereafter EC—Hormones] (same set of experts for two panels); United States—Import Prohibition of Certain Shrimp and Shrimp Products, complaint by India, Malaysia, Pakistan, and Thailand (WT/DS58), Panel and Appellate Body reports adopted on 6 Nov 1998 [hereafter US—Shrimp/Turtle] (experts in original panel only); Australia – Measures Affecting the Importation of Salmon, complaint by Canada (WT/DS18), Panel and Appellate Body reports adopted on 6 Nov 1998 [hereafter Australia—Salmon] (experts were appointed twice: original panel and implementation panel, appointing a different set of experts); Japan—Measures Affecting Agricultural Products, complaint by the United States (WT/DS76), Panel and Appellate Body reports adopted on 19 Mar 1999 [hereafter Japan—Varietals] and European Communities—Measures Affecting the Prohibition of Asbestos and Asbestos Products, complaint by Canada (WT/DS135), Panel and Appellate Body reports adopted on 5 Apr 2001 [hereafter EC—Asbestos].

3 India—Quantitative Restrictions on Imports of Agricultural, Textile, and Industrial Products, complaint by the United States (WT/DS90), Panel and Appellate Body reports adopted on 22 Sept 1999 [hereafter India—Quantitative Restrictions] (advice from the International Monetary Fund on balance of payments measures) and United States—Section 110(5) of the US Copyright Act, complaint by the European Communities (WT/DS160), Panel report adopted on 27 July 2000 [hereafter US—Copyright Act] (advice from the World Intellectual Property Organisation on the Berne Convention).

4 Japan—Measures Affecting Consumer Photographic Film and Paper, complaint by the United States (WT/DS44), Panel report adopted on 22 Apr 1998.

5 Thailand—Restrictions on importation of and internal taxes on cigarettes (BISD 37S/200), requesting WHO advice.

6 Respectively, the Agreement on the Application of Sanitary and Phytosanitary (SPS) Measures and the Agreement on Technical Barriers to Trade (TBT).

7 SPS Art 5.1.

8 See Appellate Body report on EC—Asbestos.

9 The term used by the Panel on United States—ss 301–10 of the Trade Act of 1974, complaint by the European Communities (WT/DS152), Panel report adopted on 27 Jan 2000 (no appeal) [hereafter US—Section 301], at para 7.78.

10 Note, in particular, the recent creation of a European Food Authority where scientists play a crucial role (see <http://europa.eu.int/comm/food/fs/intro/index_en.html>). On the judicial side, the Treaty of Nice (not yet in force, at <http://europa.eu.int/eur-lex/en/treaties/dat/nice_treaty_en.pdf>) provides that ‘[t]he Council … may create judicial panels to hear and determine at first instance certain classes of action or proceeding brought in specific areas’. Judicial panels could, for example, be set up to handle complex scientific cases.

11 See Art 289 of UNCLOS : ‘In any dispute involving scientific or technical matters, a court or tribunal exercising jurisdiction under this section may, at the request of a party or proprio motu, select in consultation with the parties no fewer than two scientific or technical experts chosen preferably from the relevant list prepared in accordance with Annex VIII, Art 2, to sit with the court or tribunal but without the right to vote.’

12 See the 2001 Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment (posted at <http://www.pca-cpa.org/EDR/ENRrules.htm>). Art 27, para 5 of these Rules allows for the creation of a panel of environmental scientists who can provide expert scientific assistance to the parties and the arbitral tribunal.

13 WTO Understanding on Rules and Procedures Governing the Settlement of Disputes.

14 Also SPS Art 11.2 explicitly refers to the possibility for a panel to establish ‘an advisory technical experts group’, although unlike the TBT agreement, it does not include a copy of Appendix 4 to the DSU. The disparities between the DSU, SPS and TBT agreements in this respect (referring, for example, to ‘expert review groups’, ‘advisory technical experts group’ and ‘technical expert groups’ respectively) do not seem to have legal consequences. They are there because all three agreements were negotiated side by side and only brought together under one umbrella at the very end of the Uruguay Round.

15 Appellate Body report on EC—Asbestos. SPS Art 11.2, in contrast, refers to both ‘advice from experts’ generally and the possibility for a panel ‘when it deems it appropriate’ to establish an expert group.

16 Recall that this nine months period includes the often long lapse of time as between the establishment of a panel by the Dispute Settlement Body (DSB) and the appointment of panel members to serve on the panel as well as the time required for parties to comment on an interim report and the time needed for translation of the final report into all three official WTO languages. In practice, this leaves the panel about five months to do the actual work. The panel on EC—Asbestos broke all records in this respect: the DSB established the panel on 25 Nov 1998, the panel members were selected on 29 Mar 1999; the final report went to the parties on 25 July 2000, and, after translation, it was circulated to all WTO members on 18 Sept 2000, that is, almost two years after the panel's establishment.

17 For an empathic call that panels should, indeed, appoint expert groups, not individual experts see Theofanis Christoforou, Genetically Modified Organisms: Colloquium Article Settlement of Science-Based Trade Disputes in the WTO: A Critical Review of the Developing Case Law in the Face of Scientific Uncertainty, 8 NYU Envtl LJ 622 (2000).

18 See the Appellate Body report on Canada—Measures Affecting the Export of Civilian Aircraft, complaint by Brazil (WT/DS70), adopted on 20 Aug 1999.

19 As HLA Hart put it : ‘To be an authority on some subject matter a man must in fact have some superior knowledge, intelligence, or wisdom which makes it reasonable to believe that what he says on that subject is more likely to be true than the results reached by others through their independent investigations, so that it is reasonable for them to accept the authoritative statement without such independent investigation or evaluation of his reasoning’ (Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory, 261–2, 1982).

20 Scott Brewer, Scientific Expert Testimony and Intellectual Due Process, 107 Yale LJ 1535, at 1589 (1998).

21 Ibid, 1578.

22 Daniel Bodansky, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law, 93 AJIL 596 (1999), concluding on 622: ‘Authority should be exercised in accordance with law and principle (legal legitimacy). The decision-making mechanisms should be transparent and give people an opportunity to participate (participatory legitimacy). Furthermore, decisions should be based on the best scientific expertise (expert legitimacy). But these are minimum conditions. They contribute to legitimacy (and their absence undermines it), but by themselves do not provide a firm basis for legitimacy.’ The latter forum of legitimacy is described by Bodansky as ‘normative legitimacy’, related to ‘the crucial question of who should make decisions and how they should do so’ (Ibid, 600), that is, ‘referring to whether a claim of authority is well founded—whether it is justified in some objective sense’ (Ibid, 601), eg, based on state consent or democratic decision-making.

23 Ibid, 619–20.

24 This would not be a first in international adjudication. In the Chorzow Factory (Claim for Indemnity) case, eg, the Permanent Court of International Justice ordered an inquiry into the value of an expropriated undertaking for the purpose of determining the compensation due (PCIJ, Ser A, No 17 (1928)). However, the parties reached a settlement out of court before the experts had terminated their inquiry. See also the expert process set up by the International Court of Justice (ICJ) to determine the amount of damages in the Corfu Channel case (ICJ Reports 1949, 238) and, generally, Gillian White, The Use of Experts by International Tribunals (1965), ch VII.

25 See above n 3.

26 The panel put it thus: ‘Given that the International Bureau of WIPO is responsible for the administration of [the Berne] Convention, the Panel would appreciate any factual information available to the International Bureau on the provisions of the Berne Convention (1971) relevant to the matter, in particular the negotiating history and subsequent developments and practice concerning those provisions referred to by the Parties to the dispute’ (emphasis added, Panel report, Annex 4.1, 245).

27 Scott Brewer (above n 20, at 1587–8) refers in this respect to the ‘persuasive authority’ of ‘epistemic near-equals’: ‘A “persuasive authority” functions to some degree as an epistemic authority even for decisionmakers who are themselves substantially competent in the areas the persuasive authority addresses. An eminent treatise writer might give a judge compelling reason to believe that the law is as the writer claims … it functions as persuasive, though not dispositive, advice.’

28 On the role of non-WTO rules of international law in WTO dispute settlement, see this author's, The Role of Public International Law in the WTO: How Far Can We Go?, 93 AJIL 535 (2001).

29 See, eg, the statements by President Chirac of France in a Feb 2000 speech at the ICJ, where he called for the ICJ to be invested with a ‘regulatory role, advising the international organizations’ (‘When international law on the environment, trade, and labour standards conflict, we need a place where they can be reconciled. Why not request advisory opinions from your Court in such cases?’). He also suggested that ‘treaties containing dispute-settlement mechanisms ought to establish an explicit linkage with the Court … When these treaties set up a new jurisdiction, would it not be desirable for that jurisdiction to be able to refer questions to the Court for preliminary ruling, for guidance on points of law of general interest?’ (Report of the ICJ, 1 August 1999–31 July 2000, para 320 (<http://www.icj-cij.org/icjwww/igeneralinformation/igeninf_Annual_Reports/iICJ_Annual_Report_1999-2000.htm>).

30 See above n 29.

31 Hence, in case of an SPS dispute, the secretary would come from the Agriculture division, ie the division that deals with the SPS agreement.

32 See Appellate Body ruling in European Communities—Regime for the Importation, Sale and Distribution of Bananas (WT/DS27/AB/R), adopted on 25 Sept 1997.

33 See, eg, the EC delegation in EC—Hormones.

34 As is often the case in GATT Art III discrimination cases where, eg, the complainant commissions a market-study to prove the ‘likeness’ or ‘directly competitive or substitutable’ relationship between its exports and the domestic product to which protection is allegedly afforded.

35 See the Appellate Body report on EC—Hormones. In recent case law, this extremely hands-off approach of the Appellate Body was somewhat softened. In US—Wheat Gluten, the Appellate Body noted that it cannot condemn the panel for not having made an ‘objective assessment’ as called for in DSU Art 11 ‘simply on the conclusion that we might have reached a different factual finding from the one the panel reached. Rather, we must be satisfied that the panel has exceeded the bounds of its discretion, as the trier of facts, in its appreciation of the evidence’ (United States—Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, WT/DS166/AB/R, para 151).

36 Appellate Body report on EC—Asbsestos, amicus curiae procedures, para 3(f), emphasis added.

37 Ibid, para 7(c), emphasis added.

38 See, eg, the revision procedure of ICJ judgments, set out in Art 61 of the ICJ Statute, referring to ‘the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision’. That WTO reports do carry the weight of res judicata, see Appellate Body report on US—Shrimp/Turtle (implementation dispute).

39 See the Appellate Body reports on India—Quantitative Restrictions and Turkey—Restrictions on Imports of Textile and Clothing Products (WT/DS34/AB/R), adopted on 19 Nov 1999. See also the discussions at the DSB in the Philippines—Autos case (Philippines—Measures Affecting Trade and Investment in the Motor Vehicle Sector, complaint by the United States, WT/DS195), where the United States requested a panel notwithstanding the fact that the issue was being dealt with by the Committee on Trade-Related Investment Measures and the General Council.

40 India—Quantitative Restrictions, para 103.

41 Note, however, that GATT Art XV:2 does impose an obligation to consult the IMF in cases ‘concerning monetary reserves, balances of payments or foreign exchange arrangements’. Advice thus obtained from the IMF must even be accepted as final. It is still an open question whether this obligation imposed on GATT Contracting Parties (now WTO members) applies also to WTO panels. See infra n 73.

42 Panel members employed by the government of a WTO member are not paid. Non-governmental panel members get 600 CHF per day of work (plus travel expenses and per diem when they are in Geneva, costs that are also reimbursed to governmental panel members). The same amount is given to experts. Hence, their fee is minimal and most panel members as well as experts do it for the experience and prestige, not the money.

43 WTO doc WT/DSB/RC/1, dated 11 Dec 1996.

44 Rule VII: 5 to 10.

45 See above n 20, at 1588.

46 Richard Posner, ‘The Law and Economics of the Expert Witness’, Journal of Economic Perspectives, vol 13, no 2 (1999), 91–9, at 96.

47 See above n 20, at 1604.

48 Theofanis Christoforou, above n 17, 630–1.

49 As Posner remarked (at 94): ‘An expert witness who has a record of academic publication will be “kept honest” by the fact that any attempt to repudiate his academic work on the stand will invite devastating cross-examination.’ Note, however, that the current process of appointing panel experts is still much better than relying exclusively on party-appointed experts where the risk of having so-called ‘hired guns’ is much greater.

50 DSU Art 25 could then be used to institute special arbitration the way UNCLOS disputes can be solved by special arbitration composed of experts pursuant to Annex VIII to UNCLOS for disputes ‘relating to (1) fisheries, (2) protection and preservation of the marine environment, (3) marine scientific research, or (4) navigation, including pollution from vessels and by dumping’ (Art 1 of Annex VIII).

51 See, respectively, Art 30, para 2 of the ICJ Statute and Art 9 of the Rules of the Court and Art 50 of the ICJ Statute and Art 67 of the Rules of the Court.

52 Art 289 of UNCLOS, quoted above in n 11.

53 In support Richard Posner, above n 46.

54 See Court Appointed Experts: A Demonstration Project of the AAAS (at <http://www.aaas.org/spp/case/case.htm>) and, generally, David Faigman, The Law's Scientific Revolution: Reflections and Ruminations on the Law's Use of Experts in Year Seven of the Revolution, 57 Wash & Lee L Rev 661 (2000).

55 For a clear overview, see the expert procedures adopted by the panel on Japan—Varietals.

56 The leading case in this respect remains Daubert v Merrell Dow Pharmaceuticals 113 SCt 2786 (1993) focusing on the relevance and reliability of the evidence for it be admissible. See Bernstein, David, Junk Science in the United States and the Commonwealth, 21 Yale Journal of International Law 123 (1996)Google Scholar. For more recent discussions, see above n 54 and Gross, Peter et al. , ‘Clearing Away the Junk: Court-Appointed Experts, Scientifically Marginal Evidence, and the Silicone Gel Breast Implant Litigation’, 56 FoodDrug LJ 227 (2001).Google Scholar

57 Sandifer, Durward, Evidence Before International Tribunals (1975) 4–5.Google Scholar

58 This is also what the standard working procedures of WTO panels provide.

59 In EC—Hormones, the Appellate Body rejected the idea put forward by the panel that there is a procedural leg to SPS Art 5.1 requiring that national authorities actually took account of the evidence when they enacted the contested measure.

60 See Appellate Body report on US—Wheat Gluten.

61 In support Theofanis Christoforou, above n 17, at 632: ‘The character of the expert question-answer session used by panels is a far cry from the cross-examination of a witness by lawyers, as practiced in common law jurisdictions.’

62 Peter Gross et al, above n 56, 228.

63 Ibid, 227.

64 Jasanoff, Sheila, ‘What Judges Should Know About the Sociology of Science’, 32 Jurimetrics J 345 (1995), at 353–4.Google Scholar

65 Japan—Varietals, paras 129–30.

66 Canada—Aircraft, para 192: ‘A panel may, in fact, need the information sought in order to evaluate evidence already before it in the course of determining whether the claiming or responding Member, as the case may be, has established a prima facie case or defence.’

67 Ibid, para 193.

68 Above n 57, at 3–4. Witenberg goes even further, referring to ‘the obligation imposed upon the international judge to participate in the search for the truth … The judge not only enjoys the right but has the obligation personally to engage in the development of the facts’ (Witenberg, , ‘Onus Probandi devant les Jurisdictions Arbitrales’, 55 Rev Gen De Droit Int'l Pub 321, 335 (1951))Google Scholar. See also Gillian White, above n 24, at 6.

69 Recall, in this respect, that both ICJ and ITLOS procedures go even further than DSU Art 13: they actually allow for experts to sit on the bench, albeit without a vote (see above nn 51 and 52). As they sit on the bench, they are to a great extent beyond the control of the parties and are hence likely to submit whatever view or information they deem fit. The outstanding example of the use of experts (as opposed to assessors) by the ICJ is the Corfu Channel (Merits) case where three experts were appointed to examine aspects of the North Corfu Strait. See Gillian White, above n 24, at 107 ff.

70 For another example, see WTO case law on burden of proof and its emphasis on establishing a prima facie case. For a discussion, see this author's, ‘Evidence, Proof and Persuasion in WTO Dispute Settlement, Who Bears the Burden?’, 1 Journal of International Economic Law (1998) 227.Google Scholar

71 See above n 36.

72 WT Doc WT/DS76/12.

73 In respect of GATT Art XV:2, the Appellate Body on India—Quantitative Restrictions left it open as to whether panels (not GATT contracting parties or WTO members, the subject referred to in Art XV:2), seeking advise under GATT Art XV:2, would be bound by such advice. The United States answered the question in the affirmative, India in the negative.

74 See EC—Hormones.

75 See above 56.

76 See Wolpert, Lewis, ‘What Lawyers Need to Know About Science’ in Current Legal Issues: Law and Science, 1998, vol 1 (ed Helen, Reece), 289 at 297.Google Scholar

77 See Kaye, DH, ‘Proof in Law and Science’, 32 Jurimetrics J 313 (1995), at 317.Google Scholar

78 EC—Hormones, para 194, emphasis added.

79 Japan—Varietals, para 77.

80 Ibid, paras 73 and 84 (emphasis added, footnote omitted).

81 EC—Asbestos, para 178.

82 Ibid, para 172 (paraphrasing its earlier finding in Korea—Beef, para 162, on GATT Art XX(d)), adding that in EC—Asbestos ‘the objective pursued by the measure is the preservation of human life and health through the elimination, or reduction, of the well-known, and life-threatening, health risks posed by asbestos fibres. The value pursued is both vital and important in the highest degree’.

83 Appellate Body report on EC—Asbestos, para 180.

84 Or as Brewer (above n 20, at 1595) put it: ‘ex hypothesi, the nonexpert does not have sufficient competence in the expert discipline to be able to make the choice on substantive grounds, so how can the nonexpert make that choice? … we are expecting greater ability to discern the scientific truth from the nonexpert than we are from the expert.’

85 Or as Christoforou (above n 48, at 635–6) put it: ‘the most that can properly be done by panels … is to examine whether the evidence upon which the parties rely is based on scientific principles and methods and whether it possesses the minimum attributes of scientific inquiry … They are limited to an examination of whether the scientific basis of a contested measure is a scientifically plausible alternative to the scientific theory advocated by the complaining party, and whether the measure has a rational relationship to the performed risk assessment.’

86 Note that the Appellate Body itself found that the hormone ban was not imposed to protect domestic beef producers, but that it still found the ban to fall foul of the SPS agreement (at para 245: ‘We are unable to share the inference that the Panel apparently draws that the import ban on treated meat … were not really designed to protect its population from the risk of cancer, but rather to keep out US and Canadian hormone-treated beef and thereby to protect the domestic beef producers in the European Communities).’

87 Appelate Body Report, United States—Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS 33/AB/R, adopted on 23 May 1997, 14.

88 See above n 70.

89 US Supreme Court in Addington, 441 US 418, at 423, quoted in Loevinger, Lee, ‘Standards of Proof in Science and Law’, 32 Jurimetrics J 323 (1995), at 333.Google Scholar

90 For the actual meaning of these different standards in US law, see Brown v Bowen, 847 F2d 342 (7th Cir 1988): ‘All burdens of persuasion deal with probabilities. The preponderance standard is a more-likely-then-not rule under which the trier of feat rules for the plaintiff if it thinks the chance greater than 0.5 that the plaintiff is in the right. The reasonable doubt standard is much higher, perhaps 0.9 or better. The clear and convincing standard is somewhere in between.’

91 Charnovitz, Steve, ‘Improving the Agreement on Sanitary and Phytosanitary Standards’, in Trade, Environment and the Millennium (United Nations University Press, 1999), 171, at 186.Google Scholar

92 See the Chevron doctrine in US law (Chevron USA, Inc v Natural Resources Defense Council, Inc). Note, however, that for anti-dumping disputes, Art 17.6 of the Dumping Agreement provides for a more deferential ‘reasonableness’ test. In terms of policy, there is no good reason why panels ought to show more deference when examining a dumping case as opposed to when they examine a health measure. On the contrary, one would have expected that for health issues, more deference would be warranted.