Reliability of Expert Evidence in International Disputes
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ARTICLE
RELIABILITY OF EXPERT EVIDENCE IN
INTERNATIONAL DISPUTES
Matthew W. Swinehart*
INTRODUCTION
Even as the legal community, politicians, and the public at large con-
tinue to scrutinize the legitimacy of international dispute resolution,' one
of the most influential features to have emerged in modem international
law-the use of expert witnesses-has gone largely overlooked. Apart
from the broader debates about whether and to what extent states should
subject policy choices to international law or how treaty partners should
design mechanisms to resolve disputes over those choices,2 stands the sig-
nificant role that expert witnesses play in those disputes. Where the dis-
puting parties appoint experts, the adjudicator often must referee a battle
of the experts and choose between two competing views and outcomes.
Where the adjudicator has appointed an expert, the struggle is to ensure
that the ultimate decision making authority is not delegated to the expert.
Many recent high-profile international legal disputes-including a dispute
* Matthew Swinehart is a legal advisor for trade and investment agreement
negotiations at the United States Department of the Treasury. The views expressed here are
the author's own and not necessarily the views of the United States government or the
Department of the Treasury. This paper has benefitted from conversation with colleagues
including Christopher Bradley, Suzanne Garner, and the participants of the 2016 American
Society of International Law Biennial Conference of the International Economic Law
Interest Group at Georgetown University Law Center, at which an earlier version of this
paper was presented. Many thanks are also owed to the excellent editorial staff of the
Michigan Journal of International Law.
1. See, e.g., Zeeshan Aleem, Why Trump's Plan to Ignore the World Trade Organiza-
tion Isn't as Reckless as it Sounds, Vox (Mar. 8, 2017), http://www.vox.com/policy-and-poli
tics/2017/3/8/14766228/trump-trade-wto ([T]he Trump administration's skepticism of the
WTO isn't new.); Catherine A. Rogers, The Politics of International Investment Arbitration,
12 SANTA CLARA J. INT'L L. 223, 233 (2013) (noting a pervasive sense of a legitimacy crisis
in the investment arbitration world); James Surowiecki, The Financial Page: Trade Agreement
Troubles, THE NEW YORKER, June 22, 2015, at 26 (arguing that investor-state dispute settle-
ment is outdated and unnecessary and that including them in trade agreement under-
mines the broader case for free trade, by making it look like exactly what people fear-a
system designed to put corporate interests above public ones).
2. These debates-whether we should enshrine rules in international agreements and
subject those rules to dispute settlement-are the substance of government policy. JAN
PAULSSON, DENIAL OF JUSTICE IN INTERNATIONAL LAW 232 (2005). This Article does not
wade into them. But we must ensure that the international tools for implementing those
policy choices-whatever they may be-produce sound decisions and uphold the legitimacy
of the decision-making process.
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Reliability of Expert Evidence in International Disputes
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