Is Creating a Specialized Court a Good Idea to Solve Uncertainty Paradox?

Since eighteenth century in England, judges empanelled juries of merchants for commercial cases, in order to ensure that judge and jury together has the required expertise to decide the case^[1]. Later, the High Court and the Court of Appeal have the right to summon assessors to sit with the judges and to give advice on technical issues arising in the course of the litigation^[2]. Under English law, the high Court has several divisions, composed of two of the three judges who are not legally qualified but are appointed for their knowledge and experience. The similar examples like the commercial court (Tribunal de commerce) can also be found in France^[3].

Under Swiss Law, in four canons, civil matters could be heard in commercial court, if the cases involve commercial transactions of a certain importance and if at least the defendant is listed as firms in the Swiss commercial register. Commercial courts are composed of three judges and two assessors drawn from the local chambers of commerce^[4]. According to the literature, lay judges familiar with the field in question are of great help to the legal specialists to understand the facts of a case, in particular technical and commercial issues. The involvement of lay judges in question results in certain functional similarities with the arbitrational tribunals. As a result, over seventy percent of cases before the Swiss commercial courts end in conciliation, instead of a judgment^[5]. This may be seen as a good example of creating a specialized court.

All of above examples indicate that creating specialized courts is not unknown for the European countries and the need of such specialized courts has been long recognized.

Creating a specialized EU patent court is also raised by the Commission^[6]. Two advantages of creating a specialized court can be identified. First, specialized courts can be composed of specialized judges having proper training in certain fields. Second, since specialized courts are quickly confronted with a substantial number of cases, as a result, they enjoy a steep learning curve^[7]. However, the ECJ expressed that, providing in a specific article, separate from the general provisions applicable to the General Court, for the creation of a separate specialist chamber of the General Court and laying down specific rules on the commissioning the judges of that chamber entails ‘the risk of compromising the structure and integrity of that court^[8].’

Considering the difficulty for the EU Court to appoint the appropriate experts aforementioned, also the existence of uncertainty paradox between experts and judges, creating a specialized court may be a proper way to solve these problems. Nevertheless, the scientific disciplines involved in each case vary a lot. A policy debate would arise concerning the appropriate kinds of specialized courts. How many different kinds of specialized courts does the EU need to create? Therefore, this thesis would suggest that, following the ICJ’s approach, to appoint the ad hoc assessors with relevant scientific expertise sitting on the bench to assist the deliberation without the right to vote could be a fundamental remedy. As can be seen, this approach is also similar with the composition of the Swiss commercial court, which is a successful example of the specialized court in Europe.

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[1] J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at p. 229.

[2] A. Dickey, ‘The Province and Function of Assessors in English Court’, (1970) 33 MLR 494.

[3] J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at p. 265.

[4] F. Dessemontet and T. Ansay (eds.), Introduction to Swiss Law, Kluwer 2004, at p. 289.

[5] See, C. Platto ed., Economic Consequences of Litigation Worldwide, Kluwer 1999, at pp. 87-88.

[6] See proposal for a Council decision conferring jurisdiction on the Court of Justice in disputes relating to the Community patent, COM (2003) 807 final.

[7] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at pp. 979-980.

[8] See proposal for a Council Decision establishing the Community Patent Court and concerning appeals before the Court of First Instance-Opinion of the Court of Justice of the European Community, para. 37.

Demerits of the WTO Consulting System , Remedies, and What the EU Can Learn

Demerits of the WTO Consulting System , Remedies, and What the EU Can Learn  

1.The Lack of Professional Background to Commission the Experts

Apart from the delegation of the powers from the panel to its appointed experts, as mentioned before, neither the panel nor the WTO secretariat staff is the real experts who know how to select the qualified experts merely by looking at the CV, publications^[1]. And the EU Court may face the same problem when selecting the experts. It is even worse that the EU Court cannot rely on the EU Agencies to provide the list of candidates as the panel did.

Pauwelyn first suggested that, in trade disputes where only controversy is a question of fact, not the law, WTO Members would be advised to settle their disputes via the special arbitration under Article 25 of the DSU, instead of through the normal panel procedure. By doing so, the parties can ask a panel of scientists to settle their disputes. The similar approach can be found the United Nation Convention on the Law of Sea (UNCLOS)[2]. Hence, in trade disputes where only controversy is a question of fact, it is admitted that a specialized tribunal may be more appropriate to settle the case than the normal court[3]. Article 9 of the TEU leaves the room to set up the specialized court.

Second, to nominate a panelist having the relevant scientific background can be helpful for the panel to select the experts. However, to further put a real scientific expert on the panel may not be a good idea, since the expert panelist may exert too much uncontrolled power over the other two panelists. Also, it blurs the line between expert-advisors and judicial decision-makers[4]. However, certain other international tribunals do have the right to commission an expert sitting on the bench to assist the deliberation without the right to vote. The International Court of Justice (ICJ), for instance, can appoint scientific assessors to assist the Court[5].

Another way to complement the competence of the panel is to appoint the scientists as part of the WTO secretariat staff to assist the panel to select the experts[6]. Nevertheless, as Barbier de La Serre and Sibony mentioned, in the past there was an in-house economist on the staff of the EU Court for the reporting judges to consult when dealing with the complex competition issues. Nonetheless, it was rarely to be used. It seems that many of the continental judges were very nervous about consulting outside the knowledge of the parties[7]. As long as the legal culture of the EU Court does not change, the idea would be unworkable.

Therefore, some available remedies can be used to assist the panel cannot be helpful for the EU Court. It might be more positive to consider the idea of setting up the specialized Court or to appoint the scientists as assessors sitting on the bench to assist the deliberation without the right to vote as the ICJ did.

2.  The Inability of Solving Scientific Conflicts

When appointing individual experts, the panel faces the problem of scientific conflicts. It is obvious that the panel tends to rely on the expert review group to solve this problem. Still, it is possible to have the dissenting opinion on the report issued by the group. How can the panel solve?

The Appellate Body in EC-Hormones held that, the results of risk assessment has to sufficiently support the SPS measures at issue and it added the following:

Article 5.1 of the SPS Agreement does not require the risk assessment must necessarily embody only the view of a majority of the relevant scientific community. In some cases, the very existence of divergent views presented by qualified scientists who have investigated the particular issue at hand may indicate a state of scientific uncertainty. Responsible and representative governments may act in good faith on the basis of what, at a given time, may be a divergent opinion coming from the ‘qualified and respect sources’. By itself, this does not necessarily signal the absence of a reasonable relationship between the SPS measure and the risk assessment, and especially where the risk involved is life-threatening in character and is perceived to constitute a clear and imminent threat to public health and policy[8].

Subsequently, the Appellate Body in EC-Asbestos upheld that, the contested measures of Member States can be based on ‘a divergent opinion coming from qualified and respect sources’. Therefore, a panel needs not necessarily reach a decision under Article XX (b) of the GATT 1994 on the basis of the ‘preponderant’ weight of the evidence[9].

Pauwelyn argued that, by relying on the divergent opinion, as long as it is coming from the qualified and respect sources, the panel can put aside the arguments of scientific conflicts between the mainstream opinions and the minority opinions, by relying on the minority opinion to solve this issue[10].

Nonetheless, Panels are not competent to make substantive decisions on scientific disagreements[11]. Therefore, in assessing whether a divergent opinion is coming from qualified and respect sources, the WTO panel and the EU Court may still need to consult the other experts to assist them. The EU Court may uphold the EU’s measures or the measures of Member States departing from the EU harmonized standards by relying on the divergent view, as long as the disputing party can demonstrate that the divergent view it rely on is coming from qualified and respect sources, since the Appellate Body in EC-Hormones confirmed that, the very existence of divergent views presented by qualified scientists may indicate a state of scientific uncertainty[12].

3.  Uncertainty Paradox Remains in WTO Dispute Proceedings

As mentioned before, the uncertainty paradox^[13] results from the fact that science cannot provide decisive evidence on uncertain risks, lawyers and policy-makers appeal to science for some kind of plausibility proof^[14].

Gross argued that, in the mind of the typical lay juror, a scientific witness has a special aura of credibility[15]. Most often the panel wants simple and clear answers, even if the science cannot always have such answers. Moreover, upon the panel’s request, an expert may be asked to make a guess without being backed by empirical studies. And the expert’s guess may carry lots of weight on the panel’s mind. In EC-Hormones, Dr. Lucier was asked by the panel to express, in his view, between 0 and 1 in a million risk of cancer based on added hormones in beef production. While this statement was taken very seriously by the panel and the Appellate Body, in fact, it was not supported by any particular study[16].

Again, the uncertainty paradox remains in the WTO dispute settlement proceedings. If assessing the scientific evidence is unavoidable for the panel, the fundamental way is to complement the competence of the panel by appointing the scientists as part of the WTO secretariat staff to assist the panel or by appointing a panelist having the scientific background to assist the panel to avoid the uncertainty paradox.

In addition, it is also necessary to require that all statements by experts shall be backed up by data or studies and discloses those data and studies, so that the parties have opportunities to object the solidity of the evidence[17].

Back to the EU Court, it is suggested to appoint the scientists as assessors sitting on the bench to assist the deliberation without the right to vote. By doing so, this may thoroughly solve the uncertainty paradox it faces.

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[1] J. Pauwelyn, ‘The Use of Experts in WTO Dispute Settlement’, (2002) 51 ICQL 325, at p. 344.

[2] Annex VIII to the UNCLOS relates to fisheries, protection and preservation of the marine environment, marine scientific research and navigation.

[3] J. Pauwelyn, ‘The Use of Experts in WTO Dispute Settlement’, (2002) 51 ICQL 325, at p. 344.

[4] J. Pauwelyn, ‘The Use of Experts in WTO Dispute Settlement’, (2002) 51 ICQL 325, at p. 345.

[5] Article 30.2 of the Statute of the ICJ provides that, the Rules of the Court may provide for assessors to sit with the Court or with any of its chambers, without the right to vote. Article 9.1 of the Rules of the Court of the ICJ provides that, the Court may, either proprio motu or upon a request made not later than the closure of the written proceedings, decide, for the purpose of a contentious case or request for advisory opinion, to appoint assessors to sit with it without the right to vote.

[6] J. Pauwelyn, ‘The Use of Experts in WTO Dispute Settlement’, (2002) 51 ICQL 325, at p. 345.

[7] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at p. 954, footnote 81 about ‘ An EU Competition Court’.

[8] Appellate Body Report, EC-Hormones, para. 194.

[9] Appellate Body Report, EC-Asbestos, para. 178.

[10] J. Pauwelyn, ‘The Use of Experts in WTO Dispute Settlement’, (2002) 51 ICQL 325, at pp. 356-357.

[11] S. Brewer, ‘Scientific Expert Testimony and Intellectual Due Process’, 107 Yale L. J. 1535, at p. 1595.

[12] Appellate Body Report, EC-Hormones, para. 194.

[13] Van Asselt and E. Vos, ‘Precautionary Principle and the Uncertain Paradox’, (2006) Journal of Risk Research 9 (4), at pp. 317-318.

[14] Van Asselt and E. Vos, ‘The Precautionary Principle in Times of Intermingled Uncertainty and Risks: Some Regulatory Complexities’, Water Science and Technology, 52 (6) 2005, at p. 42. 

[15] P. Gross et al, ‘Clearing Away the Junk: Court-Appointed Experts, Scientifically Marginal Evidence, and the Silicone Gel Breast Implant Litigation,’ (2001) 56 Food & Drug L.J. 227, at p. 228.

[16] J. Pauwelyn, ‘The Use of Experts in WTO Dispute Settlement’, (2002) 51 ICQL 325, at pp. 349-350.

[17] J. Pauwelyn, ‘The Use of Experts in WTO Dispute Settlement’, (2002) 51 ICQL 325, at p. 350.

Working Paper: Why is the use of neutral expet still exceptional before the EU Court

While, it is not unusual for the EU Court to appoint neutral expert[1], it is rare for the EU Court to appoint the neutral expert when reviewing the scientific-based measures[2]. In particular, in case involved scientific issues, as mentioned in Chapter 2, the EU Court chose to construct the uncertainty by finding the scientific conflicting opinions in the documents the parties presented. According to the literature, below are the potential reasons why the use of neutral expert is exceptional[3].

First, the EU Court enjoys a wide discretion to determine whether commissioning an expert is necessary[4]. In practice, the EU Court normally does not appoint an expert unless the evidence before it is deficient in some material respects or the party has provides prima facie evidence in favor of her assertions[5].

Second, pursuant to Article 19.1 of the Treaty on European Union (TEU), the function of the EU Court is to ensure that in the interpretation and application of the Treaties the law is observed. The EU Court is not bound in every case to carry out a detailed investigation into every question of fact. In addition, its duty to ensure the observation of law is tempered by the need to decide the case in time, so that the justice is not denied by delay[6]. Consequently, the EU Court is only bound to take sufficient steps to solve the case[7].

Third, as mentioned before, the EU Courts tend to respect the institution’s discretion on the factual basis of its action when it is called upon to assess the complex assessment[8]. As Barbier de La Serre and Sibony argued, the EU Courts seem to fear that relying upon the expert’s report would lead them to substitute their appreciation to that of the institution[9]. As A.G. Jacobs noted, the Court is not the appropriate forum to determine the scientific issues and those questions can only be answered by the scientists[10].

Fourth, the procedures of the EU Courts lack the detailed rules on the admissibility of evidence. As Lasok noted, whether the proved fact is able to support the existence of the particular fact is normally determined by the Court in the light of ordinary experience[11]. Hence, the EU Court enjoys a wide discretion to put its own personal knowledge or experience to establish the factual contexts of the case. As mentioned before, the EU Court in Pfizer[12] pretended to be a scientist to construct scientific uncertainty[13].

Finally, the EU Court fears to delegate its power to external experts by adopting an expert’s report[14]. In addition as Alemanno argued, the EU Court might feel that submitting one of these studies to a third party review would amount to questioning both the scientific and institutional legitimacy of these committees, which ultimately belong to the same system of governance[15].

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[1] Case T-313/01, R v Commission [2004] ECR-SC I-A-129 and II-577, paras. 65. 76. 77. 102., 103; Case C 23/81, Commission v Royal belge [1983] ECR 2685, para. 7.

[2] A. Alemanno, ‘Scientific and EU Risk Regulation: The Role of Experts in Decision-Making and Judicial Review’, in Vos, European Risk Governance: its science, its inconclusiveness and its effectiveness, Connex Report Series 2008, at p. 63.

[3] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at pp. 950-964.

[4] Case T-138/98, ACAV and Others v. Council [2000] ECR II-341, para. 72.

[5] K.P.E. Lasok, The European Court of Justice Practice and Procedure, Buttersworth 1994, at pp. 366-372.

[6] Commissioning an expert may delay the proceedings, at least by a few months, while the EU Courts have strived to decrease the average length of the proceedings, see B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at p. 953.

[7] K.P.E. Lasok, The European Court of Justice Practice and Procedure, Buttersworth 1994, at p. 345.

[8] Case T-13/99, Pfizer Animal Health v Council [2002] ECR II, paras. 168-169.

[9] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at pp. 953-954.

[10] Opinion of A.G. Jacobs in Case C-269.90 Technische Universitat Munchen v HauptzollamtMunchen-Mitte [1991] ECR I-5480, para. 15.

[11] K.P.E. Lasok, The European Court of Justice Practice and Procedure, Buttersworth 1994, at p. 437.

[12] Case T-13/99, Pfizer Animal Health v Council [2002] ECR II.

[13] Van Asselt and Vos, ‘Precautionary Principle and the Uncertain Paradox’, (2006) Journal of Risk Research 9 (4), at p. 329.

[14] B. Barbier de La Serre and Anne-Lise Sibony, ‘Expert Evidence Before the EC Courts’, (2008) CML Rev. 45, at p. 961.

[15] A. Alemanno, ‘Scientific and EU Risk Regulation: The Role of Experts in Decision-Making and Judicial Review’, in Vos, European Risk Governance: its science, its inconclusiveness and its effectiveness, Connex Report Series 2008, at p. 64.