Practical Suggestions For Amicus Curiae Briefs At The WTO

Because the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) does not mention amicus curiae briefs, a heated discussion has arisen regarding the question of whether such non-governmental briefs should be, or even must be, accepted by the WTO dispute settlement bodies.The great constitutional significance of the amicus curiae question results from the fact that, as long as the political bodies of the WTO are practically paralyzed, and therefore unable to amend the DSU or interpret it authoritatively, the dispute settlement bodies must work independently even if they realize that a majority of the WTO Members are against allowing amicus curiae briefs. Until now, the dispute settlement bodies, especially the Appellate Body, have stood firm and asserted their duty to judge without interference, something which has been particularly difficult since the DSU is silent about amici and public discussion of this issue has been vehement.In Chapter I, this thesis first outlines the long history of amicus curiae briefs. They evolved under Roman Law, developed with English Common Law, and were exported to the United States, where they flourished. Although the use of amicus briefs per se in Civil Law countries especially in France has been limited, these systems provide persons or organizations that have an interest at stake in a dispute with rights of action or intervention. Today, amicus briefs are being used before many domestic courts and to a lesser degree before international tribunals.In Chapter II, the thesis next examines the current practice of WTO panels and the Appellate Body, and explores some of the issues raised by these different approaches. Amicus briefs have now been submitted to a number of WTO panels, and the practical adopted towards them has varied considerably. Non-solicited briefs were submitted to panels in US-Gasolines and in US-Hormones, following previous GATT practice, but were not considered by the panels. In US-Shrimp, two groups of environmental NGOs sent amicus briefs to the Panel. The Panel rejected them on the basis that they had not "sought" them as required by DSU Article 13. But the Appellate Body overturned the Panel's legal ruling and stated " A panel has the discretionary authority either to accept and consider or to reject information and advice submitted to it, whether requested by a panel or not." Since this decision, amicus briefs have been sent to five WTO panels, namely in US-British Steel, in the Implementation Panel (Article 21.5 DSU) of Australia - Salmon, in US-Section 110 (5) of the Copyright Act, in EC- Bed Linen, in EC- Asbestos. The decisions of the Appellate Body in these cases have sparked controversy among WTO Members, many of which have expressed concern that the acceptance of amicus briefs raises a series of substantive and practical issues for the WTO dispute settlement system.In Chapter III, the author analyses that neither DSU Article 13 nor DSU Article 17(9) and the Working Procedures Rules 16(1) could be the legal basis of tha Appellate Body's approach. Since that we should say that there are some conflicts between the current practice of the WTO settlement Bodies and the DSU. WTO Members have expressed a variety of views about current WTO practice on amicus briefs. Generally speaking, there are three approaches among them: (1) Argument in favor of amicus curiae briefs; (2) Argument against amicus curiae briefs at the WTO; (3) Amicus curiae briefs allowed at the panel level, but not at the appellate body.In Chapter IV, the author states the essence of the amicus briefs issue. The question of the admissibility of amicus curiae briefs at the WTO is essentially a problem of transparency entailing a high degree of constitutional significance. As in any decision-making process, the greater the amount of information and views considered, the greater the chances for a good outcome. As in the case of any problem of transparency, the underlying difficulty lies in the correct balance between efficiency and inclusiveness, in the correc...