Amicus Curiae Briefs At The WTO

Because the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) doesn't motion 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 disputes 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 amicus curiae and public discussion of this issue has been vehement.This thesis firstly 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 curiae briefs per se in civil law countries especially in France has been limited, these systems provides persons or organizations that have an interest at stake in a dispute with rights of action or intervention. Today, amicus curiae briefs are being used before many domestic courts and to a lesser degree before some international tribunals.Next the thesis examines the current practice of WTO Panels and the Appellate Body, and explores some of the issues raised by these different approaches. Amicus curiae briefs have now been submitted to a number of WTO Panels, and the practical adopted towards them had varied considerably. Even 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 curiae briefs raises a series of substantive and practical issues for the WTO disputes settlement system. Then the author analyses that current WTO rules cannot be the legal basis of the Appellate Body's approach. Since that we should say that there are some conflict =s 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 curiae briefs. Generally speaking, there are three approaches among them: argument in favor of amicus curiae briefs; argument against amicus curiae briefs at the WTO; amicus curiae briefs allowed at the panel level, but not at the Appellate Body.And then the author states the essence of the amicus curiae briefs issue. The question of the admissibility of amicus curiae briefs at the WTO is essentially a problem of the right to interpretation of the WTO rules. As far as we known, the WTO rules are mostly amphibolous, the author thinks that the General Council has the right to interpret the WTO rules which cannot distinctly prescribe the rights and obligations of members. At mean time he also examines the problems that the WTO settlement bodies engendered when they dealed with the amicus curiae briefs.Finally the author reaches his conclusion. The WTO settlement mechanism needs legal certainty for its decision-making and we should solve this problem with a practical approach as soon as possible. To avoid much opposite controversy, we could make a principle decision that the amicus curiae briefs should in the future only be allowed at the Panel level, and not at the Appellate Body level. According to the WTO rules, the General Council should make this conclusion and the rules how to accept the amicus curiae briefs for the Panel level.