The importance of co-operation between disputing parties

Co-operation between the disputing parties will often be key to the successful resolution of a scientific or technical dispute, and may also allow for a calibrated application of the precautionary principle that may not be as achievable through adjudicatory dispute settlement. Whether or not disputants ultimately do co-operate effectively cannot by any means be guaranteed, but judicial prompting may assist. The two awards in the well-known Trail Smelter Arbitration (US v. Canada) provide an early demonstration of how helpful it may be to allow time for co-operative study of how to address or ameliorate a problem, here the distribution of sulphur dioxide from the Canadian smelter at Trail through cross-border currents in the upper air. In its first award the Tribunal decided that three consultants would be appointed for the gathering of meteorological observations, and prescribed a temporary emissions limitations regime. In its second award the Tribunal was then in a position to lay down a detailed and permanent regime.

Adjudicatory proceedings may be just one of the stages through which a dispute proceeds, and it is part of the function of an international court or tribunal to take this into account in deciding how to deal with a case. The practical significance of scientific and administrative co-operation is apparent upon considering the various high-profile international disputes involving scientific uncertainties introduced in the pages that follow.