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