Amicus curiae submissions in the carbon steel case: Another rabbit from the appellate body's hat?

Journal of International Economic Law

Volumn 3, Issue 4, 2000, Pages 691-699

  Appleton, Arthur E ^a  

^a Lalive and Partners   (Switzerland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0346189406     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/3.4.691     Document Type: Article

References (43)

1. United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom (hereinafter the Carbon Steel dispute) WT/DS138/AB/R, adopted 7 June 2000.
2. United States - Import Prohibition of Certain Shrimp and Shrimp Products (hereinafter 'Shrimp/Turtle') WT/DS58/AB/R, adopted 6 November 1998.
3. Ibid at para 83. This promise was made in a letter dated 11 August 1998. See Arthur E. Appleton, 'Shrimp/Turtle: Untangling the Nets,' 2 J of Int'l Econ L 477, 486-88 (1999).
4. See generally WT/DSB/M/50, Minutes of Meeting Held in the Centre William Rappard on 6 November 1998 (14 December 1998).
5. In what may have been a coordinated move in a dispute with test-case characteristics, the day the US filed its appellant's submission, the Appellate Body received 'amicus' briefs from the American Iron and Steel Institute and the Specialty Steel Industry of North America. Carbon Steel, above note 1, at para 36. At the panel level, an amicus brief from the American Iron and Steel Institute had been rejected due to late filing. United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, Report of the Panel, WT/DS138/R (23 December 1999), at para 6.3. This outcome suggests the need for a transparent set of rules governing the treatment of amicus submissions at the panel and appellate levels, as well as in Article 21(5) proceedings.
6. Shrimp/Turtle, above note 2, at paras 79-91, and 99-110.
7. United States - Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Panel, WT/DS58//R (15 May 1998), at paras 7.7-7.8.
8. Ibid at para 7.8.
9. Ibid.
10. Portions of these briefs were put forth by the US as an annex to its second submission to the Panel and considered as a part of that submission. Ibid.
11. Shrimp/Turtle, above note 2, at para 104.
12. Ibid at para 106.
13. Ibid at para 108.
14. Ibid at para 101; see also Appleton, above note 3, at 484.
15. Ibid at para 101; see also Appleton, above note 3, at 484.
16. Shrimp/Turtle, above note 2, at para 83.
17. Ibid at paras 83-84 (emphasis added). The CIEL amicus brief also raised factual issues which would, pursuant to DSU Article 17.6, be beyond the purview of the Appellate Body.
18. Ibid at para 83.
19. See Appleton, above note 3, at 487.
20. This fact is known from the author's participation in the Shrimp/Turtle dispute. Rule 16(1) requires such notification.
21. Australia - Measures Affecting Importation of Salmon - Recourse to Article 21.5 by Canada, WT/DS18/RW (18 February 2000), at paras 7.8-7.9.
22. Ibid.
23. Carbon Steel, Report of the Panel, above note 5, at para 6.3.
24. Ibid.
25. Ibid.
26. In particular, the position of the European Communities resembled the position of the Joint Appellees in Shrimp/Turtle. The European Communities argued that (1) DSU Article 13 does not apply to the Appellate Body, (2) DSU Article 13 is limited to factual information and technical advice and does not include legal arguments and interpretations, (3) neither the DSU nor the Working Procedures allow the Appellate Body to admit amicus briefs, (4) pursuant to DSU Article 17.4 and the Working Procedures, participation in appellate proceedings is confined to participants and third participants, and (5) pursuant to DSU Article 17.10 Appellate Body proceedings are confidential. Carbon Steel, above note 1, at para 36.
27. Carbon Steel, above note 1, at para 39.
28. Ibid at para 39, note 33.
29. Ibid at para 39. Footnote 33 provided in full that: 'In addition, Rule 16(1) of the Working Procedures allows a division hearing an appeal to develop an appropriate procedure in certain specified circumstances where a procedural question arises that is not covered by the Working Procedures.'
30. Carbon Steel, above note 1, at para 39.
31. Shrimp/Turtle, above note 2, at paras 99-110.
32. Carbon Steel, above note 1, at paras 36-37.
33. Ibid at para 39.
34. Ibid.
35. Ibid at para 39, note 33.
36. Ibid (emphasis added).
37. Ibid at para 41 (footnote omitted).
38. DSU Article 19.2.
39. Perhaps a Member that has not notified the DSB of a substantial interest in a dispute pursuant to Article 17.4 can make an amicus submission.
40. Carbon Steel, above note 1, para 42.
41. Available at http://wwwsecure.law.cornell.edu/rules/supct/37.html (visited 13 June 2000).
42. Available at http://www.echr.coe.int/eng/basictexts.htm (visited 17 July 2000).
43. Available at http://www.un.org/icty/basic.htm and http://www.un.org/ictr/rules.htm (visited 13 June 2000).