Romano: The Role of Experts in International Adjudication

Cesare P.R. Romano (Loyola Law School Los Angeles) has posted The Role of Experts in International Adjudication (Société Française Pour le droit International, Juin 2009). Here's the abstract:

Resort to experts by international judges (ex curia) is a relatively rare phenomenon in international adjudication. Much more frequent is resort to experts by the parties (ex parte). This short note suggests five possible reasons why. First, experts are retained to establish facts or scientific truths. However, perhaps with the exception of criminal jurisdictions, the ultimate aim of international adjudication is not so much establishing facts or truths, but to settle disputes; establishing facts does not necessarily lead to the settlement of the underlying dispute. Second, all international courts and tribunals are last instance jurisdictions. It is precisely the finality of international judges that makes their fallibility ultimately immaterial. Third, international tribunals decide on matters that often affect directly sovereign states’ interests. International courts and tribunals are thus reluctant to rely on experts ex curia because they might offer an interpretation of facts, or an assessment of causation, embarrassingly different from the ones put forward by the experts of the sovereign parties. Fourth, the sporadic resort to ex curia experts can be explained by a certain unwillingness of international judges to abdicate their judicial function, to let experts enter their own province by giving them the last word. Fifth, most international courts operate on a tight budget, with little margin for variable and unplanned expenses. While experts ex curia are paid from the courts’ budget, the parties pay for their own experts.