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DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 3

WTO Bodies involved in the dispute settlement process

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3.6 Experts

Disputes often involve complex factual questions of a technical or scientific nature, for instance when the existence or degree of a health risk related to a certain product is the subject of contention between the parties. Because panelists are experts in international trade but not necessarily in those scientific fields, the DSU gives panels the right to seek information and technical advice from experts. They may seek information from any relevant source, but before seeking information from any individual or body within the jurisdiction of a Member, the panel must inform that Member (Article 13.1 of the DSU). In addition to the general rule of Article 13 of the DSU, the following provisions in the covered agreements explicitly authorize or require panels to seek the opinions of experts when they deal with questions falling under these agreements:

• Article 11.2 of the Agreement on Sanitary and Phytosanitary Measures;
    
• Articles 14.2, 14.3 and Annex 2 of the Agreement on Technical Barriers to Trade;
    
• Articles 19.3, 19.4 and Annex 2 of the Agreement on Implementation of Article VII of GATT 1994;
    
• Articles 4.5 and 24.3 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement).
    

Where a panel considers it necessary to consult experts in order to discharge its duty to make an objective assessment of the facts, it may consult either individual experts or appoint an expert review group to prepare an advisory report (Article 13.2 of the DSU).

Rules for the establishment of expert review groups and their procedures are contained in (Appendix 4 to the DSU). Expert review groups perform their duties under the panel’s authority and report to the panel. The panel determines their terms of reference and detailed working procedures. The final reports of expert review groups are issued to the parties to the dispute when submitted to the panel. Expert review groups only have an advisory role. The ultimate decision on the legal questions and the establishment of the facts on the basis of the expert opinions remains the domain of the panel. Participation in expert review groups is restricted to persons of professional standing and experience in the field in question. Citizens of parties to the dispute cannot serve on an expert review group without the joint agreement of the parties to the dispute, except in exceptional circumstances when the panel considers that the need for specialized scientific expertise cannot otherwise be fulfilled. Government officials of parties to the dispute may not serve on an expert review group. Members of expert review groups serve in their individual capacity and not as government representatives, nor as representatives of any organization. Governments or organizations must not give them instructions with regard to matters before an expert review group.

Where panels have so far resorted to experts, they did not establish expert review groups, but consulted experts on an individual basis. They have selected them in consultation with the parties, given them a list of questions to which each expert individually responded in writing, and convened a special meeting with the experts at which these and other questions were discussed with the panelists and the parties. The panel report usually reflected both the written responses of the experts to the panel’s questions as well as a transcript of the discussions at the meeting with the panel.

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