Under the guidance of Professor Loïc CADIET (Paris I – Panthéon-Sorbonne)
Aim of this research :
Present a complete picture of expertise in international litigation in order to contribute to a theory of international judicial law.

“Expertise in international litigation in private law”

In judicial law, expertise is understood as an investigative measure requesting the appointment of a technician in charge of providing insight for the court on questions that require “complex investigations” as regards Article 256 of the French Code of Civil Procedure (CPC). It should establish proof of the facts. Each era has its own choice mode of proof. For a time it was trial by ordeals, then declarations under oath, and now the choice mode of proof is expertise. This mode of proof “draws attention, meets expectations, and generates debate “.

Expertise is particularly important within the framework of international law, as it highlights the differences in processual models, in the litigants’ judicial cultures, and in evidence-gathering techniques.

Private international law, which deals with private relations affected by the diversity of legal systems, has developed considerably in recent years due to the greater interpenetration of judicial cultures and a globalisation of the offer in law. Thus, the facts presented in a cross-border litigation trial have increased in volume and technicality.

This development is a challenge for legal practitioners, who must consider the internationalisation of disputes as unconquered territory. Indeed, tying substantive law, and in particular international law, to procedure, is a contemporary imperative to which this research project aims to contribute.

In this context, expertise is a topical example of the difficulties facing litigants and judges in an international dispute.

Expertise is a procedural technique that raises questions on various levels. Indeed, it is a concept that covers several fields : truth, both scientific and judicial, the role of the court, and the proper administering of justice.

Within an international dispute, these outlines seem more opaque as the point is not only to commission an expert’s report while respecting the internal norms in force, but also to take into account the technological and economic stakes and to decide on the confrontation of the elements of fact and law as regards judicial sovereignty and cooperation.

Expertise in international disputes is at a crossroads between processual law and substantive law and between investigating measures and evidence-gathering measures.

We will discuss the subject below (I.) and then analyse the broader questions it raises (II.).

 I. The subject : Expertise in international litigation in private law

A) International jurisdiction in matters of expertise

Private international law states that expertise, just like other investigative measures provided for by the French Code of Civil Procedure (Code de procédure civile), is governed by lex fori. Legislation regulating international relations is generally based on connection to a category. Expertise in itself, as a category, should thus naturally be classified within procedural conflicts.

Yet, based on the various points that we will develop further, international litigation reveals the difficulty of maintaining the integrity of the category of expertise as a judicial measure relating to the administration of proof. Some people no longer hesitate to consider the matter of proof as a separate legal category which should be viewed in itself as a material and procedural whole in private international law .

Regarding international competence, the decision to call for an expertise raises different questions depending on whether the measure is part of an arbitration procedure or a judicial procedure that is being undertaken in a competent court, and on whether it has been requested by the authorities of the place where it will be carried out, either on an amicable or pre-conflict basis, or if another court has been declared entirely competent. The distinction that internal law makes between the rules of evidence, a category of procedural nature, and questions regarding the substantive law of proof, becomes a fine line when it comes to assigning the respective fields of lex fori and the law applicable to litigation law. Indeed, the field conferred on the law of the court seized reaches far beyond the simple rules of evidence and governs to a variable extent both the admissibility of the means of proof and their legal force.
These difficulties are encountered when a cross-border dispute is governed by a foreign law as much as regards the possibility of resorting to an expertise, as to the appointed expert’s methods of operation and the value that his/her report has for the judge.

B) Aiming for simplified proceedings in the various expertise models

The conflict of law, common to all means of evidence, is particularly heightened in matters of expertise. Naturally the determination of the law applicable to the expertise largely takes into account the connections of the parties and facts to the origin of the dispute, but to these elements is added the wish to continue simplified proceedings.

Since the year 2000 , France has made biological expertise a right in filiation-related issues. Access to
this means of proof has been possible for a few years already in the United States for example (a decade for some US states). This is due to a more accusatory concept of civil trials in the United States than in France and shows that French judicial truth can be very different to that of countries that are economically and technically close to it.

The role of the law of the court seized seems to be particularly powerful when it comes to directing the investigative measures it has ordered. However, when it comes to establishing kinship, although the law of evidence has particularly strong links with the system of subjective rights, the legitimacy of expertise over any other means of research tends on the contrary to reinforce the legitimacy of the lex causae to determine the role assigned to it in the elaboration of the judge’s decision, thus encroaching on the field usually reserved to law and procedure .

This claim to the extension of competence of substantive law is likely to come up against the particular sensitivity of public order because of the interference of foreign principles with evidence law which sometimes limit the expert’s investigating powers. Thus the inviolability of the human being (Article 16-1 of the French Civil Code), individual privacy (Article 9 of the French Civil Code), or professional confidentiality might rival the acknowledged competence of a foreign law.

The French evidential process of expertise is a very distinct model from the others, and is particularly different from common law processes. As provided for by Article 232 of the French Code of Civil Procedure, the expert’s mission is to give an opinion of a technical nature. The expert cannot state what law is applicable to the trial as this would in effect be a delegation of the court’s authority. So experts have no jurisdictional role. Nevertheless, the expert is neither a simple consultant appointed by the judge, nor a professional whose testimony could be produced by one of the parties.

However, in the English system for example, experts are witnesses during the trial and can intervene at the request of one the parties, even though they have not had access to the evidence, and based solely on their technical competence and previous experience in dealing with similar cases.

Besides the comparative observations we can make, we must consider the matter of expertise within international disputes through the web of conventions that France is a party to.

Through the Hague Convention of 18th March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters, France agreed to link its competence to that of other States, namely to the European Convention for the Protection of Human Rights of 4th November 1950, and its Article 6 (1) that provides for the adversarial principle, and to the subsequent case law of the European Court of Human Rights.
Lastly, with regard to the intensified human and commercial exchanges at the heart of the European Union, it is essential in this analysis to take into account Council Regulation (EC) No. 1206/2001 of 28th May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.

II. The interests of the topic

As regards procedural law and international law, this topic raises several significant questions.

If we consider practical relevance, one could almost say the topic actually has a countable interest, as litigants’ needs are in constant increase. One the one hand, disputes are becoming increasingly more internationalised in a world that is economically and humanly globalised. And on the other hand expertise is increasingly requested in international disputes because it crystallises litigants’ expectations. Expertise is a means of evidence that is very much in demand, sometimes called for because it gives credibility to a judicial decision, further legitimising the foreign authority.

As to the theoretical interest, this topic is the opportunity to contribute to a field that has not yet been extensively developed in France : international judicial law. Many of the bridges that exist between procedural law and substantive law are highlighted through the issue of expertise, thus providing the possibility of a renewed offer of law.

It is imperative to coordinate the two laws into a whole. Indeed, France is committed on various levels and namely on the European level to make its model, if not attractive, at least competitive.

Expertise in French law is a model on various levels : in terms of cost, of the egalitarian treatment of the parties during the different phases of the expertise measure, and in terms of the experts’ level of competence. However, at the same time the French model is criticised for being slow, sometimes a hindrance to the adversarial principle.

The aim of this research is to give an account, within international disputes, of the proceedings of an expertise measure, of the difficulties it encounters, and of the contribution the French procedure can make in perfecting it, as compared to other models. In order to do this, the method employed will be chronological in order to effectively detail conceptual differences at each stage of the expertise – with a close look at how it is obtained, how it proceeds, and at its effects.

Looking further than the institutional separation between the different actors of international law, expertise is a very interesting field of study because it goes beyond jurisdictional and legal conflicts and balances the importance of sovereignty and judicial cooperation.

Short bibliography

I General works

Civil procedure

CADIET Loïc et JEULAND Emmanuel, Droit judiciaire privé, Paris, Litec, 6ème éd. 2009

COUCHEZ Gérard, Procédure civile, Paris, Sirey, 14ème éd. 2006

GUINCHARD Serge, FERRAND Frédérique et CHAINAIS Cécile, Procédure civile, droit interne et droit communautaire, Paris, Précis Dalloz, 29ème éd., 2008

JEULAND Emmanuel, Droit processuel, Paris, LGDJ, 2007

MOUSSA Tony, Droit de l’Expertise, Paris,Dalloz Action, 2008

International private law :

AUDIT Bernard, Droit international privé, Economica, 4ème éd., Paris 2006

BUREAU Dominique et MUIR-WATT Horatia, Droit international privé, coll. Thémis Droit, PUF, 1ère éd., 2007

MAYER Pierre et HEUZE Vincent, Droit international privé, Montchrestien, 9ème éd., Paris, 2007

NIBOYET Marie-Laure et GEOUFFRE DE LA PRADELLE Géraud de, Droit international privé, LGDJ, Paris, 2ème éd. 2009

II Articles and theses

FONGARO Eric, « La loi applicable à la preuve en droit international privé », préf. B. Beignier et J. Foyer, Tome 423, LGDJ, Paris 2004

GROUD Thomas Habu,« La loi applicable à la preuve en droit international privé », préf. I.Faldallah, PUAM, Aix-en-Provence, 2000

HUET André, « Les conflits de procédure en matière de preuve », préf. R. Perrot, Dalloz,Paris 1965

LAGARDE Xavier, Réflexion critique sur le droit de la preuve, LGDJ, 1994

MUIR-WATT Horatia, V° Expertise, Répertoire international Dalloz, 1998

PATAUT Etienne, « Principe de souveraineté et conflits de juridictions (Etude de droit international privé) », préf.