Wto Dispute Settlement Mechanism Of The "amicus Curiae" Study

The evolution of the multilateral trading system, the development of economic globalization and the creation of the WTO, has heightened calls by the Non-governmental entities who represent the request of 'civil society' to be given more chances in participating the WTO Dispute Settlement proceeding. Meanwhile, the principle of 'Judicial economy' and the principle of 'Res judicata' also force the WTO Panel and the Appellate Body to increase the judge efficiency. So WTO adjudicating bodies will meet the 'Amicus Curiae', since the 'Amicus Curiae' is now the main path to participate the WTO Dispute Settlement mechanism for the Non-governmental entities.This article starts with the 'Amicus Curiae' fulfillment in domestic law level and the international law level, then educes practice of 'Amicus Curiae' in the WTO dispute Settlement system. The full text includes totally five parts.The first part introduces the general theory of 'Amicus Curiae', the author 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. Today, 'amicus briefs' are being used before many domestic courts and to a lesser degree before international tribunals. After that, the author examines the practice of 'Amicus Curiae' both at the domestic law level and at the International law level—including the Anglo-American Legal System, the International organizations, and the regional organizations.The second part proceeds to examine 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-Gasoline 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 that "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 concem that the acceptance of'amicus briefs' raises a series of substantive and practical issues for the WTO dispute settlement system.Then the author commences the problem and the acceptability of 'Amicus Curiae' which exists in the WTO dispute Settlement system in the third part, analyses that neither DSU Article 17(9) Nor the Working Procedures Rules 16(1) could be the legal basis of the 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 two approaches among them: (1) Argument in favor of 'amicus curiae 'briefs; (2) Argument against 'amicus curiae' briefs at the WTO; After that, the author pointed that the 'amicus curiae' briefs, for systemic reasons, should in the future only be allowed at the panel level, and not at the appellate body level.Drawing on these experiences, the author puts forward to establishing the system of 'Amicus Curiae' in the WTO dispute settlement system in the fourth part identifying the subject of 'Amicus Curiae' in WTO Dispute Settlement System, suggesting that WTO panel and the Appellate Body should weigh both substantive criteria and procedural criteria when determining whether, how to use 'Amicus Curiae'. Finally, the author reaches her conclusion that 'amicus curiae' is a procedural issue, and also sets forth some suggestions in this issue.