Strategies of Engagement with Scientific Fact-Finding in International Adjudication

5 Journal of International Dispute Settlement, 2014, p. 240-272

Amsterdam Law School Research Paper No. 2013-20

Amsterdam Center for International Law No. 2013-05

49 Pages Posted: 4 Apr 2013 Last revised: 11 Jan 2015

See all articles by Jean d'Aspremont

Jean d'Aspremont

University of Manchester - School of Law; Sciences Po Law School

Makane Mbengue

University of Geneva

Date Written: April 2, 2013

Abstract

The following contribution zeroes in on the diverging responses that permeate international adjudicative practice pertaining to international disputes arising out of scientific controversies. Drawing on the idea that scientific fact-finding is as much a struggle for argumentative persuasiveness as traditional fact-finding and law-interpretation, this article identifies and critically evaluates four attitudes of international judges and arbitrators. It shows that, when it comes to scientific fact-finding, adjudicative bodies are in a constant flux between nihilism, protectionism and outsourcing. It further demonstrates that similar dynamics can be observed with regards to the weighing of scientific knowledge in cases when adjudicators decide to outsource it to experts. This paper subsequently argues that when confronted with scientific fact-finding, international adjudicators are dealing with knowledge that is as unstable as the law and which brings them to make a choice between different types of reasoning or rationality. It ultimately makes the argument that the question of scientific fact-finding inevitably confronts international judges and arbitrators with a choice of epistemic rationality.

Keywords: International Law, International Litigation, International Courts and Tribunals, Arbitration, Science and Law, Scientific Fact-Finding, Evidence, Scientific Knowledge, Epistemic Rationality

JEL Classification: K33, K41, K4

Suggested Citation

d'Aspremont, Jean and Mbengue, Makane, Strategies of Engagement with Scientific Fact-Finding in International Adjudication (April 2, 2013). 5 Journal of International Dispute Settlement, 2014, p. 240-272; Amsterdam Law School Research Paper No. 2013-20; Amsterdam Center for International Law No. 2013-05. Available at SSRN: https://ssrn.com/abstract=2243570 or http://dx.doi.org/10.2139/ssrn.2243570

Jean D'Aspremont (Contact Author)

University of Manchester - School of Law ( email )

Oxford Road
Manchester M13 9PL, M139PL
United Kingdom

HOME PAGE: http://www.manchester.ac.uk/research/Jean.daspremont/

Sciences Po Law School ( email )

13 rue de l'université
Paris, 75007
France

HOME PAGE: http://www.sciencespo.fr/ecole-de-droit/en/profile/daspremont-jean

Makane Mbengue

University of Geneva ( email )

102 Bd Carl-Vogt
Genève, GA CH - 1205
Switzerland

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