The NGOs Participation In The WTO Dispute Settlement System

The non-governmental organizations(NGOs) is growing dramatically over the recent years due to the technology progress and the increasing public awareness of democracy. The traditional framework of international relations has been altered and the NGOs are gradually becoming a crucial part of the international governance. WTO as the most important international economic organization, is the very engine of the trade growth worldwide. With the globalization going further, WTO is expanding beyond the field of international trade and obtaining a great impact in various areas like environment, labor and human rights. Accordingly, these non-trade issues are inevitably involved in the disputes between the WTO Member States. The NGOs, generally regarded as the representative of the civil society, argue that the governments fail to fully express the public opinions and therefore they demand greater participation in the WTO dispute settlement procedure.According to the DSU, the WTO dispute settlement system is only available for the Member States and the NGOs are not granted the right to directly participate in the procedure. However, in practice, the WTO has developed an approach allowing the NGOs indirect participation by submitting the amicus brief to the panel or the Appellate Body. In fact, the unsolicited amicus briefs were rejected when first brought up in the WTO dispute settlement system. But the situation changed soon with the decision of Appellate Body in the US-Shrimp Case stating that the Panel can decide to accept or not accept the amicus brief on its own discretion. Then the US-British Steel Case further confirmed that the Appellate Body itself has the authority to decide on the acceptance of unsolicited amicus briefs. It is indicated that the amicus briefs submitted by the NGOs have been permitted in both the panel and the appellate review. Beyond that, in the EC-Asbestos Case the Appellate Body even tried to draw up an additional procedure to regulate the NGOs participation in the capacity of amicus curiae in the WTO dispute settlement procedure. However, this welcoming approach has raised some concern between the Member States. They questioned about the legitimacy of the NGOs participation and the credibility of the engaged NGOs. Moreover, some Member States also fear that allowing the NGOs in the procedures are overwhelming for the WTO dispute settlement system, which would undermine their rights under the WTO agreements. Indeed, it is acknowledged that a variety of problems regarding the amicus briefs submitted by the NGOs need to be addressed. But rejecting the NGOs participation completely out of these problems fails to constitute a solid argument here. Besides, it could not be ignored that the WTO dispute settlement system can benefit a lot from the NGOs participation. Firstly, the information contained in the amicus briefs could be very useful for the Panel and the Appellate Body in solving the disputes. Secondly, the NGOs involvement in the dispute settlement procedure brings the viewpoints from the civil society, which, to some extent, would fix the democracy defect embodied in the WTO dispute settlement system. All these taken, it would lead to the public acceptance and support for the organization, improving the status of WTO as a whole.Compared with other international inter-governmental organizations, like the UN, which have already established a stable and long-term relationship with the NGOs community, the cooperation between the WTO and the NGOs seems rather limited and is mostly arranged on a temporary and unofficial basis. It is concluded in this article the NGOs participation in the WTO dispute settlement system is a trend which cannot be denied anymore and it is time to set up some rules to regulate such participation. The practical approach at present is to draw up a working procedure under the Article 17.9 of DSU and the additional procedure drafted in EC- Asbestos Case provides quite an example to refer to. The general idea is that only the NGOs which meet some certain conditions are qualified to submit the amicus briefs which are also required to fulfill the requirements imposed both on the format and the content. Meanwhile, the WTO can also set up an evaluation system for the NGOs. The NGOs would be assessed and chosen to establish a long-term relation with the WTO based on the assessment. It could be prescribed that only these particular NGOs would have the opportunity to file the amicus briefs.