Caroline Foster. Science and the Precautionary Principle in International Courts and Tribunals. Expert Evidence, Burden of Proof and Finality

Abstract

Caroline Foster's book constitutes an important addition to the literature on international tribunals and the inter-linkage between science and law in the international domain. The book includes a detailed analysis of the place of scientific evidence in international disputes, the role of adjudicators and experts, and the way in which these issues are influenced by the precautionary principle. The book addresses a wide range of disputes and venues, ranging from the World Trade Organization (WTO) to the International Court of Justice and the International Tribunal for the Law of the Sea. The detailed analysis of the different methods through which varied international tribunals deal with scientific evidence (e.g., party-appointed independent experts, cross examination, site visits, court-appointed experts) advances our understanding of the function and dynamics of international tribunals. To give one example, Foster describes the system that was devised by WTO panels for taking expert evidence even though the WTO dispute settlement understanding (DSU) is silent about this issue (at 114�123). One innovative mechanism that was created by the panels is the joint meeting (at 115�116). Joint meetings with experts are generally held between the two substantive meetings between the Panel and the parties, take place over a 1 to 2 day period, and are attended by the panel members, its experts, and the parties and their experts. While these meetings do not constitute a full-blown adversarial process they offer the parties and the panel the opportunity to put the opposing scientific views to deliberative scrutiny. The book advances three recommendations in relation to how the precautionary principle is to be accommodated within international adjudicatory processes (at xvii, 343�44). First the author argues that we should welcome the precautionary influence wielded through expert scientific evidence (whether this be scientific evidence from parties' appointed experts or evidence from court-appointed experts). Secondly,