TDM 2 (2017) - Editorial: Non-legal Adjudicators in a Lawyers' World
Article from: TDM 2 (2017), in Editorial
Katia Fach Gómez  and Weiwei Zhang 
"The first thing we do, let's kill all the lawyers!" 
Shakespeare may be cracking a joke when his character "Dick The Butcher" suggests that one of the ways the country can be improved is to kill all the lawyers. The interpretation of this quote remains controversial. However, it would not be unfair to query "what is the lawyers' role after all?" The purpose of this Special Issue is certainly not to "kill" the lawyers. Nor is it desirable or possible to do so. Indeed, in many aspects of today's lawyer-dominant dispute settlement world, the ones being "killed" are non-lawyers, if they exist or should exist at all. This Special Issue sets out to explore the roles that a non-legal adjudicator can play and must play in today's international or national dispute settlement. 
The Cambridge dictionary defines an "adjudicator" as "a person or group that makes an official decision about something, especially about who is right in a disagreement". It does not speak about the qualification of an adjudicator. Today, since the benchmark of the rightness for most of the disagreements lies in law in the form of legal text, it is assumed that an adjudicator must possess a law degree to adjudicate such disputes. Indeed, it makes total sense for an adjudicator to possess a law degree if the "law" is the sole benchmark for the rightness; and if the interpretation of such "law" is in the monopolistic hand of lawyers. This Special Issue reveals that these assumptions cannot lightly be accepted. Non-legal adjudicators play an important role, even in a heavily rule-based system.
I. The Genesis of This Special Issue
National courts, international courts and arbitration tribunals very often need to address scientific and/or technical aspects of a dispute. These adjudicators may rely on external competences - e.g., party-appointed experts or ex curia experts. However, nowadays there are also various areas of conflict resolution in which non-legal experts - also called lay adjudicators or non-lawyers adjudicators, among others - are part of the adjudicatory body, and internally provide the required non-legal competences. In the national judicial context, there are examples of specialized national courts - e.g., in the environmental dispute sector - where non-legal experts seek to guarantee the non-legal expertise of judicial courts. In the international arbitral context, a compelling example of the appointment of a scientific-technical expert as full arbitrator is provided by the Permanent Court of Arbitration in the inter-State Indus Waters Kishenganga case. Non-legal neutrals are likewise relevant in commercial arbitration and in the broader field of ADR. In specialized areas, such as disputes regarding construction, energy, engineering, financial services, technology and applied science cases, resorting to non-lawyers to resolve these types of disputes is a widely-used practice. It is also very remarkable that in the World Trade Organization (WTO) dispute settlement system, some 44% of the panellists appointed have no legal background and 3 out of the 25 Appellate Body members appointed so far have no law degree.
With this general presentation, a Transnational Dispute Management (TDM) call for papers was launched in the second semester of 2016. It aimed at analysing the current scenario, as well as new trends, developments, and challenges that non-legal adjudicators face when resolving national and international disputes. The scope of the Special Issue was deliberately broad, willing to consider litigation, national arbitration and diverse forms of alternative dispute resolution (ADR), international commercial arbitration, investment arbitration, inter-State arbitration, and the dispute settlement system of the WTO. Likewise, the list of possible topics for submission to this Special Issue was extensive, innovative and multidisciplinary. It included, inter alia, the following: drawbacks of the external competences provided by non-legal experts to courts and arbitration tribunals; reasons supporting the participation of non-legal adjudicators; whether there are particular case patterns that make the participation of non-legal adjudicators especially desirable; background and expertise of the non-legal adjudicators; relevant criteria -of a technical, scientific, political or sociological nature- influencing the selection and appointment of non-legal adjudicators; empirical studies dealing with participation of non-legal adjudicators in national and international disputes; whether the intervention of non-legal adjudicators should be encouraged or limited; obstacles facing non-legal adjudicators involved in national and international disputes; whether the existence of an assisting Secretariat - e.g., the WTO Secretariat - or the absence thereof has an impact on the appointment of non-legal adjudicators; attitudes from the legal milieu regarding non-legal adjudicators; and legal and non-legal reforms required to foster - or limit - the participation of non-legal adjudicators in national and international context.
Responses to this TDM call for papers from both practice and academia have been extremely positive. We received a high number of well-grounded proposals from potential contributors with different professional backgrounds and from different regions. We have also received warm encouraging messages, complimenting TDM and the editors on the desirability of launching this Special Issue.
After months working with the contributors and our TDM colleagues, we are now very pleased to announce that this TDM Special Issue on "Non-Legal Adjudicators in National and International Disputes is ready. It gathers twenty-three contributions, which are grouped into five sections: General discussions on non-legal adjudicators; Experts vs. Adjudicators; Adjudicators in specific sectors; National practices; and Practices in the WTO and other international tribunals. Not only do we believe that these contributions have met our expectations, we are also truly fascinated by many of the observations provided therein. Below we offer our first digestion of these contributions. Despite our best efforts, we cannot replicate all the highlights. We therefore encourage our readers to refer to individual contributions for further deliberation on topics touched upon by this Special Issue.
II. When the "Law" Does not Exist ...
Disputes may arise in every walk of life, from disputes between workers and employers on contracts to disputes between two States on borders. Very often, we take for granted that law will cover every dispute; thus lawyers are desirable in every walk of life to either argue or adjudicate who is right or wrong.
Palmos brings us back to ancient Athens when no legal professionals existed. However, the absence of lawyers did not mean the absence of order. Justice was injected through a common understanding of justice maintained by literate citizens. This form of governance can still find its traces today. Osasona explains in his paper that in the Nigerian informal sector, which contributes to almost two thirds of the country's GDP, dispute resolution is governed by informal institutions, featuring unwritten codes of conduct, the enforcement of which relies heavily on fiduciary relationships, networks, enlightened self-interest and other mutual reinforcing mechanisms of responsibility. Osasona uses wet markets as an example to illustrate the resilience of informal conflict resolution beyond law and courts. Naturally, the adjudicators in this informal institutional setting do not possess law degrees, nor are they needed. In specialized areas of business, the lawyers' presence was also not desired to advance day-to-day business. As explained by Caldwell , trades and professions regulated the conduct of their members, based on trust and integrity. He further explains how arbitration has moved away from these roots to an empire "colonized" by lawyers today. That leads us to reveal the presence or non-presence of non-lawyers, especially lay adjudicators, in today's world of modern dispute settlement.
III. Expertise in Need?
This section explores the extent to which expertise other than legal education is needed to engage in modern dispute settlement in light of the contributions of this Special Issue.
A) Experts vs. Adjudicators
The following articles expose that the so-abundantly quoted notion of "expert" has very diverse meanings and scopes in various national and international contexts. In this sense, Dougherty, Sblendorio, and Diana reflect from a practical perspective on the use of tribunal-appointed experts in international commercial arbitration. These three international lawyers warn the parties to arbitrations of possible due process concerns derived from this appointment. The article offers a set of proposed model rules for the use and management of tribunal-appointed experts in arbitration. Mereminskaya and Landeros share some of the underlying fears discussed in the preceding article. This interdisciplinary team of authors also adopts a pro-active approach, offering some practical tips on how the work of a tribunal-appointed expert should be adequately structured in the area of construction disputes. MacGregor and Maclay reveal some appealing insights from their occupation as accountancy experts. In their article, the authors highlight the importance in the UK of expert determination in areas such as sales, purchase and valuation disputes, where non-lawyers play a key role. Finally, Zimmermann de Meireles draws a comparison between expert proceedings and arbitration, and discusses whether expert decisions may in some cases enjoy a legal status similar to arbitral awards, when dealing with their recognition and enforcement before national courts.
B) Sector Practices
Very few commercial sectors have remained impervious to the increasing presence of non-legal adjudicators. Areas as diverse as those mentioned in the following paragraphs have developed - or aim at implementing - an adjudicative proceeding that is managed by lay professionals. For instance, Chernykh offers a thrilling presentation of the soft commodity arbitration milieu. In that context, not only are non-legal adjudicators key actors, but also lawyers have a very restricted role to play. Similar reluctance towards legal professionals appears in the context of controversies among Jain diamond merchants. Gómez explores this unknown world in a republished article that focuses on a specific form of intra-community arbitration. As Brown sets out, specialized economic and legal instruments such as letters of credit also demand a specialized arbitration ruled by industry-expert adjudicators. Looking at the role of engineers in the construction industry, Rubino-Sammartano indicates nevertheless that disputes involving engineers should be dealt with in a cautious manner, so as not to bring detriments to large scale construction projects.
C) National Practices
Some of the articles compiled in this Special Issue lead the reader to consider certain practices of European and Asian countries. More specifically, Meyer and Baier explain in detail the Swiss Federal Supreme Court's approach towards resorting to technical or commercial consultants and secretaries in commercial arbitration. The authors consider that the confirmation of these tools´ legality, as proclaimed by the Swiss court, may generate practical implications for the arbitration world. Boggio ´s article focuses on the study of management deadlock clauses that are regulated in the 2003 Italian Company Law. The author reflects on the convenience and possible effects of the referred clauses, which allow for an external expert - even non-legal - to be instructed to decide how best to conduct that controversial business. Amirante and Viola present us with a suggestive example of a multidisciplinary court: the Indian National Green Tribunal. This court, created in the year 2010 and exclusively dedicated to environmental matters, have parity composition of judges and technical experts. Larrosa Ibañez closes this section, analyzing the role of the Spanish "Lawyer of the Administration of Justice" in cases of international civil and commercial mediation.
D) WTO & Other International Courts
Pauwelyn compares the profile of WTO panelists with ICSID arbitrators. Data shows that WTO panelists tend to be relatively low-key diplomats from developing countries, with government backgrounds, often without law degrees or legal expertise. This is in sharp contrast with ICSID arbitrators, who are often found to be high-powered, elite private lawyers or legal academics from Western Europe or the United States. He offers his thoughts on the origins of this contrast. Sarmiento 's work is built upon Pauwelyn's observations. By conducting interviews with WTO insiders, she explores the extent to which a WTO panelist can influence the final decision-making of a three-member panel, especially when the panelist is not a lawyer by training. In addition, her work offers a thorough literature review on the decision-making processes of WTO panels and Appellate Body members. This effort is applauded, especially since empirical studies are limited on this matter. López Barrero also attempts to explain the prevalence of non-lawyers in WTO panel compositions. Unlike Sarmiento's empirical approach, López Barrero seeks answers from the historical development of the multilateral trading system and the functioning of the panel in view of existence of the Appellate Body and the WTO Secretariat.
Even though non-legal panelists are prevalent in WTO dispute settlement, this does not mean that these panelists necessarily have case-specific industry or social-science expertise, since most of them are diplomats. As pointed out in all the contributions in this section, WTO cases are increasingly technically complicated. Foster , in her republished paper on the EC - Biotech case, advocates for appointing social scientists as experts in WTO and other international courts and tribunals. In this regard, her proposal bears some similarity to Ma 's contribution. Ma addresses a phenomenon in inter-State adjudication and arbitration - non-appearance of sovereign state. Given that these cases often involve national interests of vital importance, Ma suggests international courts should embrace non-legal adjudicators for fact-finding purposes, rather than adopting a "reactive attitude".
E) Dealing with "Big Data" ...
Perhaps all of these discussions may become irrelevant. Hanke discusses the prospect of introducing artificial intelligence into adjudication by using autonomous computer systems. Even though such a prospect is not imminent, that contribution points to another area of expertise in need, in light of a growing body of law, jurisprudence and case-specific knowledge; the capacity to deal with "big data". Non-legal expertise - this time aided by computer scientists - can help improve the quality of adjudication and reduce the cost for settling disputes.
As mentioned before, the purpose of this Special Issue is not to "kill" lawyer adjudicators, nor is it to promote the presence of non-legal adjudicators in all kinds of adjudications. As cautioned by Mollengarden, the benefit of expertise is not immune from the law of diminishing marginal returns, since expertise bears benefits as well as costs, even in areas where expertise is mostly needed. In the context of arbitration, Triantafilou observes it is not necessarily the case that the appointment of a non-lawyer arbitrator could improve the quality of decision-making, and that sometimes it could lead to dysfunction or delay. This is the result of the tactical decisions by parties when they appoint their arbitrators. When assessing the benefits and costs of embracing non-legal adjudicators, these caveats should be kept in mind.
As stressed by Palmos, there is a point where a non-legal adjudicator can progress no further in a dispute, e.g. when it comes to the pure interpretation of legal texts. The same is true for lawyer adjudicators - there is a point where a lawyer adjudicator can progress no further, when expertise other than law is needed. Depending on where and when this point is reached in each dispute and in each type of adjudication, a system should be in place to make sure that non-legal expertise is properly injected.
In concluding this Special Issue, we would like to thank all the authors participating in this monographic issue. Their wisdom, energy and cooperation have made the final reality of this work positively exceed our expectations. We also take this opportunity to thank the generous support from the TDM publishing team. Last but not least, we wish our readers a pleasant reading.
 Professor of International Law at the University of Zaragoza, Spain. Her participation in this work has been supported by the Alexander von Humboldt Foundation (Forschungsstipendium für erfahrene Wissenschaftler). The author is a member of the Spanish Research Projects DER2016-80568-R (subprograma Retos) and e-Procofis S 14/3 DGA.
 Postdoctoral researcher, Graduate Institute of International and Development Studies, Geneva, Switzerland.
 William Shakespeare, Henry VI (Part 2).
 For the purpose of this Special Issue, non-legal adjudicators refer to adjudicators who do not possess a law degree.
 In this context, "internal competences" refer to the adjudicators' competences that make up the adjudicatory body, whereas "external competences" refer to competences that the adjudicators lack. Katia Fach Gómez, "The US-EU Transatlantic Trade and Investment Partnership: Should it Leave a Door Open for Non-Legal Arbitrators?", Conflict Resolution Quarterly (2016), pp. 189-224.
 Joost Pauwelyn, "The Rule of Law without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators from Venus",The American Journal of International Law vol. 109, no. 4 (October 2015), pp. 761-805.