An 'amicus curiae brief' on amicus curiae briefs at the WTO

Journal of International Economic Law

Volumn 4, Issue 4, 2001, Pages 773-794

  Umbricht, Georg C ^a  

^a NONE

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EID: 0035733524     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/4.4.773     Document Type: Article

References (64)

1. For the current official WTO position, cf 'Internal Transparency and the Effective Participation of Members', WTO News, 2000 News Item, 21 December 2000, available at http://www.wto.org/ english/news_e/news00-e/gcinternaltrans_e.htm, last visited 20 September 2001.
2. For the current official WTO position, cf 'External Transparency', WTO News, 2000 News Item, 22 November, December 2000, available at http://www.wto.org/english/news_e/news00_e/gcexter-naltrans_nov00_e.htm, last visited 20 September 2001.
3. Annex 2 of the Agreement Establishing the World Trade Organization (the 'WTO Agreement').
4. In this sense, the International Trade Law Committee of the International Law Association (ILA), pursuant to its Declaration on the Rule of Law in International Trade, in ILA's Resolution No. 2/2000 on International Trade Law, available at www.ila-hq.org, last visited 20 September 2001, recommends the following steps: '(b) Opening the WTO dispute settlement system for observers representing legitimate interests in the respective procedures, and promoting full transparency of WTO dispute settlement proceedings. (c) Allowing individual parties, both natural and corporate, an advisory locus standi in those dispute settlement procedures where their own rights and interests are affected.' For the context of trade and human rights, see Ernst-Ulrich Petersmann, 'Human Rights and International Economic Law in the 21st Century: The Need to Clarify Their Interrelationships', 4(1) JIEL 1, 35 (2001).
5. Thomas Cottier, 'The WTO and Environmental Law: Three Points for Discussion' in Agata Fijolkowski and James_Cameron (eds), Trade and the Environment: Bridging the Gap (1998), 56, 59,: '. . . amicus briefs from nongovernmental organizations could further enhance the legitimacy, and acceptance, of the WTO dispute settlement process'.
6. Where they become part of the record.
7. See for instance: Daniel Pruzin, 'WTO Members Make Unfriendly Noises on "Friends of the Court" Dispute Briefs', BNA Daily Report for Executives, 9 August 2000, at C1.
8. Amicus curiae briefs were already introduced for the first time in the procedure leading to the Appellate Body Report in EC - Measures Affecting Meat and Meat Products (hereinafter EC - Hormones), WT/DS26&48/AB/R, adopted 13 February 1998.
9. Contrary to general perception, amicus curiae briefs were filed at both stages of the proceedings in the procedure leading to the Appellate Body Report in United States - Import Prohibition of Certain Shrimp and Shrimp Products (hereinafter US - Shrimp/Turtle), WT/DS58/ABR, adopted 6 November 1998, paras 99-110.
10. United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom (hereinafter US - Lead Bars, otherwise known as Carbon Steel) WT/DS138/AB/R, adopted 7 June 2000, para 39-42.
11. WT/AB/WP/3,
12. Rule 16(1) Working Procedure for the Appellate Body: 'In the interests of fairness and orderly procedure in the conduct of an appeal, where a procedural question arises that is not covered by these Rules, a division may adopt an appropriate procedure for the purposes of that appeal only, provided that it is not inconsistent with the DSU, the other covered agreements and these Rules. Where such a procedure is adopted, the Division shall immediately notify the participants and third participants in the appeal as well as the other Members of the Appellate Body'.
13. 'Complainants in WTO Shrimp Case Slam Appellate Report at DSB', Inside US Trade (13 November 1998) and 'WTO Members Fight Appellate Body on British Steel over NGO Briefs', Inside US Trade (9 June 2000).
14. 'Complainants in WTO Shrimp Case Slam Appellate Report at DSB', Inside US Trade (13 November 1998) and 'WTO Members Fight Appellate Body on British Steel over NGO Briefs', Inside US Trade (9 June 2000).
15. European Communities - Measures Affecting Asbestos and Products Containing Asbestos (hereinafter EC -Asbestos) WT/DS 135/AB/R, adopted 5 April 2001, para 50-57.
16. EC - Asbestos, see footnote above.
17. WT/DS135/9, see also EC - Asbestos, para 52, and Geert A. Zonnekeyn, 'The Appellate Body's Communication on Amicus Curiae Briefs in the Asbestos Case. An Echternach Procession?', 35(3) JWT 553-63 (2000). This 'additional procedure' was removed from the WTO website in December 2000 and can be found at the WTO's Database 'Documents Online'.
18. WT/GC/M/60, 23 January 2001, cited in Petros Mavroidis, 'Amicus Curiae Briefs Before The WTO: Much Ado About Nothing', Harvard Jean Monnet Working Paper 02/01, http://www.jeanmonnet-program.org/papers/01/010201.html, last visited 20 September 2001.
19. United States Statement at the 22 November 2000 General Council Special Meeting, para 2: 'Given that the Appellate Body has the authority to accept and consider amicus submissions, and given that a number of persons had either already filed, or expressed an interest in filing, amicus submissions, the Appellate Body did the only thing it could do. It adopted procedures to manage this issue in a fair, legal, and orderly manner, taking into account the interests of members of civil society in having their views considered, the interests of the parties and third parties in being able to review and respond to any amicus submissions, and the interests of all in resolving the dispute.'
20. For details and a sample letter refusing the request for leave, see the collection pertaining to EC -Asbestos at http://www.law.georgetown.edu/iiel/amicuscuriae5.html, last visited 20 September 2001.
21. Petros Mavroidis, see above, n 17.
22. John H. Jackson, 'The WTO "Constitution" and Proposed Reforms: Seven "Mantras" Revisited', 4(1) JIEL 67-78 (2001).
23. US - Shrimp/Turtle, above n 9, paras 79-91 and 99-110.
24. Until now, most of the briefs have been filed by NGOs, some have been filed by industry associations and three have been filed by professors working in this field of law, see http://www.law.georgetown.edu/iiel/amicuscuriae.html, last visited 20 September 2001.
25. This is a somewhat romantic view of the institution in ancient Rome that might only partly correspond to the reality at that time and has therefore to be taken cum grano salis, but this view helps to understand the difference between the amicus curiae institution and advocacy.
26. Cf 'corpus iuris secundum': 3A C J S Amicus Curae, para 2.
27. Krislov, 'The Amicus Curiae Brief: from Friendship to Advocacy', 72 Yale L J 694 (1963).
28. In this view, there is clearly an 'inherent difference in nature between academic writings and other relevant documents (such as decisions of the ICJ), on the one hand, and amicus curiae briefs'. 'Issues of Amicus Curiae Submissions: Note by the Editors', 4(3) JIEL 701-06 (2000).
29. WT/DS135/9, additional procedure in EC - Asbestos.
30. WT/DS135/9, additional procedure in EC - Asbestos, Article 3 letter b.
31. US - Shrimp/Turtle, above n 9, para 108.
32. An analysis of the content of the amicus curiae briefs submitted to the WTO thus far is difficult since only a limited, non-representative selection has been made publicly available. One can see, however, that many of these briefs are very thoughtful contributions and have, in some cases, been written by well-respected WTO-law specialists, either on behalf of an NGO or even on their own behalf. Almost all such submissions, however contain both facts and law.
33. See Rule 37 of the US Supreme Court, Rule 18 of the Supreme Court of Canada, Order IV para 1 of the Rules of the Supreme Court of India. The concept is also known in New Zealand (High Court Rule 81) and Australia (Lange v ABC (S108/116)), but I found no rule or case for Great Britain.
34. The ECJ is not familiar with the instrument of amicus curiae briefs. Because the ECJ provides for interventions, it therefore follows mainstream continental European procedures on this question. Germany, France, Switzerland, but also Japan and Mexico, for example, are not familiar with the institution of amicus curiae. Mexico for instance stated in the Methanex Case 'that there was no power under Mexican law for its domestic courts to receive amicus curiae briefs'.
35. In my view, it is important to emphasize that the main difference between the two institutions lies in the fact that an intervener is granted standing and can participate in the procedure, whereas an amicus merely offers certain information. It is a logical consequence that the amicus must never assume the legal consequences of the judgment, whereas the intervener must usually do so, but this is not the main difference. Therefore, intervention at the ECJ is an intervention, and not an amicus curiae brief, since the intervening person must prove a legal interest.
36. Dina Shelton, 'The Participation of Nongovernmental Organizations in International Judicial Proceedings', 88 (4) AJIL 611-42 (1994), and Gabrielle Marceau and Matthew Stilwell, 'Practical Suggestions for Amicus Curiae Briefs Before WTO Adjudicating Bodies', 4(1) JIEL 155-87 (2001).
37. Dina Shelton, 'The Participation of Nongovernmental Organizations in International Judicial Proceedings', 88 (4) AJIL 611-42 (1994), and Gabrielle Marceau and Matthew Stilwell, 'Practical Suggestions for Amicus Curiae Briefs Before WTO Adjudicating Bodies', 4(1) JIEL 155-87 (2001).
38. For example: Robert Howse, 'The Early Years of WTO Jurisprudence' in The EU, the WTO and the NAFTA, Towards a Common Law of International Trade (London: Oxford University Press 2000), 49: 'In the case of amicus briefs, by contrast, there is a wide range of domestic and international practice that suggest, in contemporary circumstances, that the discretion to consider such briefs has become widely (if not universally) assumed as an appropriate judicial right, implicit in the function of the tribunal to make a judgment having heard all the relevant facts and arguments.'
39. Human rights courts and the few international criminal courts, see next footnote.
40. For example: Inter-American Court of Human Rights, see Thomas Buergenthal, 'The Advisory Practice of the Inter-American Human Rights Court', 79(1) AJIL 1-27 (1985), or Rule 61(3) of the European Court of Human Rights: In accordance with Article 36 § 2 of the Convention, the President of the Chamber may, in the interests of the proper administration of justice, invite or grant leave to any Contracting State which is not a party to the proceedings, or any person concerned who is not the applicant, to submit written comments or, in exceptional cases, to take part in a hearing. Requests for leave for this purpose must be duly reasoned and submitted in one of the official languages, within a reasonable time after the fixing of the written procedure,' or Rule 103 of the Rules of Evidence and Procedure of the International Criminal Court, entitled Amicus Curiae and Other Forms of Submissions: ' . . . at any stage of the proceedings, a Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to submit, in writing or orally, any observation on any issue that the Chamber deems appropriate.'
41. The ICJ Registrar refused to officially receive amicus curiae briefs (Namibia Case, 1970 ICJ Pleadings (2 Legal Consequences), 636, 638, answer to Professor Michael Reisman). There is only one instance in which the ICJ received such a brief unofficially (Case Concerning the Gabcikovo-Nagymaros Project (Danube dam project by the Slovakian Government on the basis of a 1977 bilateral treaty), ICJ Reports, 1997). Mercosur is also not familiar with this institution.
42. JOB (01)183, 20 June 2001.
43. For an interesting parallel debate on standing as a reflection of substantive law, cf United States Department of Labor v Triplett, 494 US 715 (1990), and the discussion on standing and substantive rights in Laurence H. Tribe, American Constitutional Law, 3rd ed, vol 1 (New York: Foundation Press 2000), 443.
44. US - Shrimp/Turtle, above n 9, para 108.
45. Robert Howse, 'The Most Dangerous Branch? WTO Appellate Body Jurisprudence on the Nature and Limits of the Judicial Power', Paper prepared for the World Trade Institute, Berne, 21-22 August 2000.
46. Robert Howse, see footnote above. This view approaches the legal reasoning of why amici should be admitted on the panel level very much to the reasoning at the appellate level: what is an 'implicit in that duty' at the panel level, is the 'implicit authority' at the appellate level. The big question is what is implicit and what is not. While it is obvious that the DSU is not a detailed code of procedure, it is a delicate question if the adjudicator has the power to create rules allowing amicus curiae briefs or not. Common law lawyers might have a natural tendency to allow amicus submissions, claiming that this is an 'inherent power' of any court, whereas civil law lawyers tend to be reluctant to do so.
47. Krippendorf v Hyde, 110 US 276, 283 (1884).
48. At that time, the US Supreme Court rules of procedure did not yet foresee amici submissions.
49. US - Lead Bars, para 41; Steve Charnovitz, 'Opening the WTO to Nongovernmental Interests', 24 (I&2) Fordham International Law Journal 185 (2000), fn 66.
50. Tenth point of the Statement of H.E. Ambassador Fayza Aboulnaga, Permanent Representative of Egypt, acting as Chairperson of the Informal Group of Developing Counties (IGDCs) before the Special Meeting of the General Council of 22 November 2000.
51. Intervention by Canada at the General Council Special Meeting of 22 November 2001, and 'G-15 Communique on WTO Ministerial', Inside US Trade (10 September 1999), at 9-10, para 19.
52. Intervention by Canada at the General Council Special Meeting of 22 November 2001, and 'G-15 Communique on WTO Ministerial', Inside US Trade (10 September 1999), at 9-10, para 19.
53. US - Lead Bars para 36: The EC argued: 'that article is limited to factual information and technical advice, and would not include legal arguments or legal interpretations received from non-Members'. Brazil and Mexico agreed with that position, US - Lead Bars para 37.
54. Statement by India at the General Council special session of 22 November 2000, para (4) referring to a 'major delegation's negotiating proposal' in November 1993 which encountered 'overwhelming opposition'.
55. US - Lead Bars para 36: The EC 'notes that Article 13 does not apply to the Appellate Body'.
56. And this participation as a third participant is very limited: Article 17.4 DSU.
57. Arthur E. Appleton, 'Amicus Curiae Submissions in the Carbon Steel Case: Another Rabbit From the Appellate Body's Hat?', 3(4) JIEL 691-99 (2000). Appleton's main critique was that the Appellate Body did not comply with all of the conditions of Rule 16(1) of the Working Procedures of the Appellate Body.
58. Idem.
59. Thomas Buergenthal, cf footnote 38, and decisions available at http://www.corteidh.or.cr (last visited 20 September 2001).
60. Article X para. 2 WTO Agreement, see Preparations for the 1999 Ministerial Conference, Dispute Settlement Understanding, Communication From Pakistan, WT/GC/W/162 (April 1999).
61. 'Agreement on Dispute Settlement Changes Unlikely Before Doha', Inside US Trade (3 August 2001).
62. Where they become part of the record.
63. This is already possible voluntarily (see Appendix 3 para 3 DSU) and it should be possible nevertheless to keep specific information confidential. The least intrusive new rule would be to make it mandatory to disclose on the WTO website the non-confidential summary of the information contained in the submission, that currently has to be requested by a Member.
64. G. Marceau and M. Stillwell, cf fn. 35, propose a very similar procedure.