Recent Trends and Perspectives for Non-State Actor Participation in World Trade Organization Disputes

Journal of World Trade

Volumn 35, Issue 3, 2001, Pages 469-498

  Hernández López, Ernesto ^a,b,c,d  

^a GEORGETOWN UNIVERSITY   (United States)

^b GEORGE WASHINGTON UNIVERSITY   (United States)

^c UNIVERSIDAD DEL ROSARIO   (Colombia)

^d PONTIFICIA UNIVERSIDAD JAVERIANA   (Colombia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 18044405113     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1016639332537     Document Type: Article

References (160)

1. For this article non-State actors refers to both NGOs and private corporations. Many of the issues presented in this article were predicted by Michael Young, see Michael K. Young, Dispute Resolution in the Uruguay Round: Lawyers Triumph over Diplomats, 29 INTLLAW 389.
2. The issue of whether NGOs and private parties should participate in the WTO has received much attention from legal scholars and practitioners. See Steve Charnovitz, Participation of Non-governmental Parties in the World Trade Organization, 17 U. Pa. J. Int'l Econ. L. 331 (arguing the broad base of WTO activities in investment, competition policy, environment, labour standards, and corrupt practice suggests WTO participation should be open to NGOs); Jeffrey L. Dunoff, The Misguided Debate over NGO Participation at the WTO, J. Int'l. Econ. L. 433, 1998 (arguing that NGOs and private parties do indirectly and directly participate in WTO disputes); Philip M. Nichols, Participation of Non-governmental Parties in the World Trade Organization: Extension of Standing in World Trade Organization Disputes to Non-government Parties, 17 U. Pa. J. Int'l Econ. L. 295 (arguing US trade policy does incorporate public participation through a variety of agencies and that trade policy should be determined by governments); G. Richard Shell, Participation of Non-governmental Parties in the World Trade Organization: The Trade Stakeholders Model and Participation by Non-state Parties in the World Trade Organization, 17 U. Pa. J. Int'l Econ. L. 359 (arguing NGOs and private business will benefit from an extension of standing in WTO disputes); Glen T. Schleyer, Power to the People: Allowing Private Parties to Raise Claims before the WTO Dispute Resolution System, 65 Fordham L. Rev. 2275 (arguing private parties should participate in the WTO disputes in order to protect their interests); Thomas J. Schoenbaum, WTO Dispute Settlement: Praise and Suggestions for Reform, 47 Int'l. Comp. L. Qrtly. 647 (suggesting the WTO adopt a private party dispute-settlement mechanism which would: carefully define matters eligible for resolution, create a channel system by which complaints would be screened, and choose between arbitration, mediation, and conciliation mechanisms).
3. The issue of whether NGOs and private parties should participate in the WTO has received much attention from legal scholars and practitioners. See Steve Charnovitz, Participation of Non-governmental Parties in the World Trade Organization, 17 U. Pa. J. Int'l Econ. L. 331 (arguing the broad base of WTO activities in investment, competition policy, environment, labour standards, and corrupt practice suggests WTO participation should be open to NGOs); Jeffrey L. Dunoff, The Misguided Debate over NGO Participation at the WTO, J. Int'l. Econ. L. 433, 1998 (arguing that NGOs and private parties do indirectly and directly participate in WTO disputes); Philip M. Nichols, Participation of Non-governmental Parties in the World Trade Organization: Extension of Standing in World Trade Organization Disputes to Non-government Parties, 17 U. Pa. J. Int'l Econ. L. 295 (arguing US trade policy does incorporate public participation through a variety of agencies and that trade policy should be determined by governments); G. Richard Shell, Participation of Non-governmental Parties in the World Trade Organization: The Trade Stakeholders Model and Participation by Non-state Parties in the World Trade Organization, 17 U. Pa. J. Int'l Econ. L. 359 (arguing NGOs and private business will benefit from an extension of standing in WTO disputes); Glen T. Schleyer, Power to the People: Allowing Private Parties to Raise Claims before the WTO Dispute Resolution System, 65 Fordham L. Rev. 2275 (arguing private parties should participate in the WTO disputes in order to protect their interests); Thomas J. Schoenbaum, WTO Dispute Settlement: Praise and Suggestions for Reform, 47 Int'l. Comp. L. Qrtly. 647 (suggesting the WTO adopt a private party dispute-settlement mechanism which would: carefully define matters eligible for resolution, create a channel system by which complaints would be screened, and choose between arbitration, mediation, and conciliation mechanisms).
4. The issue of whether NGOs and private parties should participate in the WTO has received much attention from legal scholars and practitioners. See Steve Charnovitz, Participation of Non-governmental Parties in the World Trade Organization, 17 U. Pa. J. Int'l Econ. L. 331 (arguing the broad base of WTO activities in investment, competition policy, environment, labour standards, and corrupt practice suggests WTO participation should be open to NGOs); Jeffrey L. Dunoff, The Misguided Debate over NGO Participation at the WTO, J. Int'l. Econ. L. 433, 1998 (arguing that NGOs and private parties do indirectly and directly participate in WTO disputes); Philip M. Nichols, Participation of Non-governmental Parties in the World Trade Organization: Extension of Standing in World Trade Organization Disputes to Non-government Parties, 17 U. Pa. J. Int'l Econ. L. 295 (arguing US trade policy does incorporate public participation through a variety of agencies and that trade policy should be determined by governments); G. Richard Shell, Participation of Non-governmental Parties in the World Trade Organization: The Trade Stakeholders Model and Participation by Non-state Parties in the World Trade Organization, 17 U. Pa. J. Int'l Econ. L. 359 (arguing NGOs and private business will benefit from an extension of standing in WTO disputes); Glen T. Schleyer, Power to the People: Allowing Private Parties to Raise Claims before the WTO Dispute Resolution System, 65 Fordham L. Rev. 2275 (arguing private parties should participate in the WTO disputes in order to protect their interests); Thomas J. Schoenbaum, WTO Dispute Settlement: Praise and Suggestions for Reform, 47 Int'l. Comp. L. Qrtly. 647 (suggesting the WTO adopt a private party dispute-settlement mechanism which would: carefully define matters eligible for resolution, create a channel system by which complaints would be screened, and choose between arbitration, mediation, and conciliation mechanisms).
5. The issue of whether NGOs and private parties should participate in the WTO has received much attention from legal scholars and practitioners. See Steve Charnovitz, Participation of Non-governmental Parties in the World Trade Organization, 17 U. Pa. J. Int'l Econ. L. 331 (arguing the broad base of WTO activities in investment, competition policy, environment, labour standards, and corrupt practice suggests WTO participation should be open to NGOs); Jeffrey L. Dunoff, The Misguided Debate over NGO Participation at the WTO, J. Int'l. Econ. L. 433, 1998 (arguing that NGOs and private parties do indirectly and directly participate in WTO disputes); Philip M. Nichols, Participation of Non-governmental Parties in the World Trade Organization: Extension of Standing in World Trade Organization Disputes to Non-government Parties, 17 U. Pa. J. Int'l Econ. L. 295 (arguing US trade policy does incorporate public participation through a variety of agencies and that trade policy should be determined by governments); G. Richard Shell, Participation of Non-governmental Parties in the World Trade Organization: The Trade Stakeholders Model and Participation by Non-state Parties in the World Trade Organization, 17 U. Pa. J. Int'l Econ. L. 359 (arguing NGOs and private business will benefit from an extension of standing in WTO disputes); Glen T. Schleyer, Power to the People: Allowing Private Parties to Raise Claims before the WTO Dispute Resolution System, 65 Fordham L. Rev. 2275 (arguing private parties should participate in the WTO disputes in order to protect their interests); Thomas J. Schoenbaum, WTO Dispute Settlement: Praise and Suggestions for Reform, 47 Int'l. Comp. L. Qrtly. 647 (suggesting the WTO adopt a private party dispute-settlement mechanism which would: carefully define matters eligible for resolution, create a channel system by which complaints would be screened, and choose between arbitration, mediation, and conciliation mechanisms).
6. The issue of whether NGOs and private parties should participate in the WTO has received much attention from legal scholars and practitioners. See Steve Charnovitz, Participation of Non-governmental Parties in the World Trade Organization, 17 U. Pa. J. Int'l Econ. L. 331 (arguing the broad base of WTO activities in investment, competition policy, environment, labour standards, and corrupt practice suggests WTO participation should be open to NGOs); Jeffrey L. Dunoff, The Misguided Debate over NGO Participation at the WTO, J. Int'l. Econ. L. 433, 1998 (arguing that NGOs and private parties do indirectly and directly participate in WTO disputes); Philip M. Nichols, Participation of Non-governmental Parties in the World Trade Organization: Extension of Standing in World Trade Organization Disputes to Non-government Parties, 17 U. Pa. J. Int'l Econ. L. 295 (arguing US trade policy does incorporate public participation through a variety of agencies and that trade policy should be determined by governments); G. Richard Shell, Participation of Non-governmental Parties in the World Trade Organization: The Trade Stakeholders Model and Participation by Non-state Parties in the World Trade Organization, 17 U. Pa. J. Int'l Econ. L. 359 (arguing NGOs and private business will benefit from an extension of standing in WTO disputes); Glen T. Schleyer, Power to the People: Allowing Private Parties to Raise Claims before the WTO Dispute Resolution System, 65 Fordham L. Rev. 2275 (arguing private parties should participate in the WTO disputes in order to protect their interests); Thomas J. Schoenbaum, WTO Dispute Settlement: Praise and Suggestions for Reform, 47 Int'l. Comp. L. Qrtly. 647 (suggesting the WTO adopt a private party dispute-settlement mechanism which would: carefully define matters eligible for resolution, create a channel system by which complaints would be screened, and choose between arbitration, mediation, and conciliation mechanisms).
7. The issue of whether NGOs and private parties should participate in the WTO has received much attention from legal scholars and practitioners. See Steve Charnovitz, Participation of Non-governmental Parties in the World Trade Organization, 17 U. Pa. J. Int'l Econ. L. 331 (arguing the broad base of WTO activities in investment, competition policy, environment, labour standards, and corrupt practice suggests WTO participation should be open to NGOs); Jeffrey L. Dunoff, The Misguided Debate over NGO Participation at the WTO, J. Int'l. Econ. L. 433, 1998 (arguing that NGOs and private parties do indirectly and directly participate in WTO disputes); Philip M. Nichols, Participation of Non-governmental Parties in the World Trade Organization: Extension of Standing in World Trade Organization Disputes to Non-government Parties, 17 U. Pa. J. Int'l Econ. L. 295 (arguing US trade policy does incorporate public participation through a variety of agencies and that trade policy should be determined by governments); G. Richard Shell, Participation of Non-governmental Parties in the World Trade Organization: The Trade Stakeholders Model and Participation by Non-state Parties in the World Trade Organization, 17 U. Pa. J. Int'l Econ. L. 359 (arguing NGOs and private business will benefit from an extension of standing in WTO disputes); Glen T. Schleyer, Power to the People: Allowing Private Parties to Raise Claims before the WTO Dispute Resolution System, 65 Fordham L. Rev. 2275 (arguing private parties should participate in the WTO disputes in order to protect their interests); Thomas J. Schoenbaum, WTO Dispute Settlement: Praise and Suggestions for Reform, 47 Int'l. Comp. L. Qrtly. 647 (suggesting the WTO adopt a private party dispute-settlement mechanism which would: carefully define matters eligible for resolution, create a channel system by which complaints would be screened, and choose between arbitration, mediation, and conciliation mechanisms).
8. Kim van der Borght suggests that along with issues of transparency and participation by developing countries, public participation in WTO disputes will be of extreme importance in the future. See Kim Van der Borght, The Review of the WTO Understanding on Dispute Settlement: Some Reflections on the Current Debate, 14 Am. U. Int'l L. Rev. 1223.
9. For this article, non-State actors are the general and large category of persons and organizations, who are not affiliated with a government, interested in influencing international trade policy. Non-State actors include private parties, businesses, and NGOs. NGOs are organizations which are non-governmental and seek to influence national governments and international organizations. Typically, NGOs focus on issues such as labour, human rights, and environmental organizations. Private parties, private firms, and businesses are organizations which engage in the international movement of goods and services. These entities typically engage in these activities with profit-making objectives. Businesses does not necessarily have a nationality and thus do not represent the concerns of a single nation.
10. For an exploration of the issues surrounding the concerns of civil society and the WTO, see Jan Aart Scholte, Robert O'Brien and Marc Williams, The WTO and Civil Society, 33 J.W.T. 1 (February 1999), 107.
11. For examples of NGOs seeking involvement in the WTO process, see American Federation of Labor and Confederation of Industrial Organization, Speeches, News Releases & Testimony (13 April 2000) 〈http:// www.aflcio.org/cgi-bin/doc_display.pl?display=true&type=all〉 (presenting the AFL-CIOs position on many trade issues, highlighting working conditions of workers in other countries and stressing human rights abuses by China); Amnesty International, Amnesty International Annual Report 1998, Introduction (6 April 2000) 〈http:// www.amnesty.org/ailib/aireport/ar98/intro3.htm〉 (offering a description of how economic issues and multilateral organizations affect human rights violations and protection); Center for International Environmental Law, Trade and Environment Program (10 April 2000) 〈http://www.ciel.org/tae.html〉 (analysing the connection between trade and the environment, presenting arguments used by environmental groups used in lobbying for trade policy, and offering its amicus curiae brief in the Shrimp/Turtle case); World Wildlife Fund, Supplementary Amicus curiae Brief on the Shrimp/Turtle Dispute (10 April 2000) 〈http://www.panda.org/resources/publications/ sustainability/wto-acb/wto2.htm〉 (presenting the amicus curiae brief submitted in the Shrimp/Turtle Dispute), WTO Must Reform to Respect Environmental Treaties (10 April 2000) 〈http://www.panda.org/news/press/ news_203.htm〉 (demonstrating arguments for reform of the WTO made by environmental groups).
12. For examples of NGOs seeking involvement in the WTO process, see American Federation of Labor and Confederation of Industrial Organization, Speeches, News Releases & Testimony (13 April 2000) 〈http:// www.aflcio.org/cgi-bin/doc_display.pl?display=true&type=all〉 (presenting the AFL-CIOs position on many trade issues, highlighting working conditions of workers in other countries and stressing human rights abuses by China); Amnesty International, Amnesty International Annual Report 1998, Introduction (6 April 2000) 〈http:// www.amnesty.org/ailib/aireport/ar98/intro3.htm〉 (offering a description of how economic issues and multilateral organizations affect human rights violations and protection); Center for International Environmental Law, Trade and Environment Program (10 April 2000) 〈http://www.ciel.org/tae.html〉 (analysing the connection between trade and the environment, presenting arguments used by environmental groups used in lobbying for trade policy, and offering its amicus curiae brief in the Shrimp/Turtle case); World Wildlife Fund, Supplementary Amicus curiae Brief on the Shrimp/Turtle Dispute (10 April 2000) 〈http://www.panda.org/resources/publications/ sustainability/wto-acb/wto2.htm〉 (presenting the amicus curiae brief submitted in the Shrimp/Turtle Dispute), WTO Must Reform to Respect Environmental Treaties (10 April 2000) 〈http://www.panda.org/news/press/ news_203.htm〉 (demonstrating arguments for reform of the WTO made by environmental groups).
13. For examples of NGOs seeking involvement in the WTO process, see American Federation of Labor and Confederation of Industrial Organization, Speeches, News Releases & Testimony (13 April 2000) 〈http:// www.aflcio.org/cgi-bin/doc_display.pl?display=true&type=all〉 (presenting the AFL-CIOs position on many trade issues, highlighting working conditions of workers in other countries and stressing human rights abuses by China); Amnesty International, Amnesty International Annual Report 1998, Introduction (6 April 2000) 〈http:// www.amnesty.org/ailib/aireport/ar98/intro3.htm〉 (offering a description of how economic issues and multilateral organizations affect human rights violations and protection); Center for International Environmental Law, Trade and Environment Program (10 April 2000) 〈http://www.ciel.org/tae.html〉 (analysing the connection between trade and the environment, presenting arguments used by environmental groups used in lobbying for trade policy, and offering its amicus curiae brief in the Shrimp/Turtle case); World Wildlife Fund, Supplementary Amicus curiae Brief on the Shrimp/Turtle Dispute (10 April 2000) 〈http://www.panda.org/resources/publications/ sustainability/wto-acb/wto2.htm〉 (presenting the amicus curiae brief submitted in the Shrimp/Turtle Dispute), WTO Must Reform to Respect Environmental Treaties (10 April 2000) 〈http://www.panda.org/news/press/ news_203.htm〉 (demonstrating arguments for reform of the WTO made by environmental groups).
14. For examples of NGOs seeking involvement in the WTO process, see American Federation of Labor and Confederation of Industrial Organization, Speeches, News Releases & Testimony (13 April 2000) 〈http:// www.aflcio.org/cgi-bin/doc_display.pl?display=true&type=all〉 (presenting the AFL-CIOs position on many trade issues, highlighting working conditions of workers in other countries and stressing human rights abuses by China); Amnesty International, Amnesty International Annual Report 1998, Introduction (6 April 2000) 〈http:// www.amnesty.org/ailib/aireport/ar98/intro3.htm〉 (offering a description of how economic issues and multilateral organizations affect human rights violations and protection); Center for International Environmental Law, Trade and Environment Program (10 April 2000) 〈http://www.ciel.org/tae.html〉 (analysing the connection between trade and the environment, presenting arguments used by environmental groups used in lobbying for trade policy, and offering its amicus curiae brief in the Shrimp/Turtle case); World Wildlife Fund, Supplementary Amicus curiae Brief on the Shrimp/Turtle Dispute (10 April 2000) 〈http://www.panda.org/resources/publications/ sustainability/wto-acb/wto2.htm〉 (presenting the amicus curiae brief submitted in the Shrimp/Turtle Dispute), WTO Must Reform to Respect Environmental Treaties (10 April 2000) 〈http://www.panda.org/news/press/ news_203.htm〉 (demonstrating arguments for reform of the WTO made by environmental groups).
15. For examples of NGOs seeking involvement in the WTO process, see American Federation of Labor and Confederation of Industrial Organization, Speeches, News Releases & Testimony (13 April 2000) 〈http:// www.aflcio.org/cgi-bin/doc_display.pl?display=true&type=all〉 (presenting the AFL-CIOs position on many trade issues, highlighting working conditions of workers in other countries and stressing human rights abuses by China); Amnesty International, Amnesty International Annual Report 1998, Introduction (6 April 2000) 〈http:// www.amnesty.org/ailib/aireport/ar98/intro3.htm〉 (offering a description of how economic issues and multilateral organizations affect human rights violations and protection); Center for International Environmental Law, Trade and Environment Program (10 April 2000) 〈http://www.ciel.org/tae.html〉 (analysing the connection between trade and the environment, presenting arguments used by environmental groups used in lobbying for trade policy, and offering its amicus curiae brief in the Shrimp/Turtle case); World Wildlife Fund, Supplementary Amicus curiae Brief on the Shrimp/Turtle Dispute (10 April 2000) 〈http://www.panda.org/resources/publications/ sustainability/wto-acb/wto2.htm〉 (presenting the amicus curiae brief submitted in the Shrimp/Turtle Dispute), WTO Must Reform to Respect Environmental Treaties (10 April 2000) 〈http://www.panda.org/news/press/ news_203.htm〉 (demonstrating arguments for reform of the WTO made by environmental groups).
16. For a concise description of how some NGOs view the WTO; see Znet, A Q&A on the WTO, IMF, World Bank and Activism (23 March 2000) 〈http://www.zmag.org/zmag/articles/jan2000/jan200albert.htm〉 and Russell Mokhiber and Robert Weissman, 10 Reasons to Dismantle the WTO (23 March 2000) 〈http:// www.zmag.org.crisescurevts/globalism/10%5Freasonswto%5F.htm〉.
17. For a concise description of how some NGOs view the WTO; see Znet, A Q&A on the WTO, IMF, World Bank and Activism (23 March 2000) 〈http://www.zmag.org/zmag/articles/jan2000/jan200albert.htm〉 and Russell Mokhiber and Robert Weissman, 10 Reasons to Dismantle the WTO (23 March 2000) 〈http:// www.zmag.org.crisescurevts/globalism/10%5Freasonswto%5F.htm〉.
18. The WTO has used both formal and informal mechanisms to incorporate environmental NGOs. See WTO, Report of the WTO Informal Session with Non-Governmental Organizations (NGOs) on Trade and Environment, PRESS/TE 016 (23 March 2000).
19. See Robert Howse, The Fair Trade-Free Trade Debate: Trade, Labor, and the Environment, 16 Int'l Rev. L. & Econ. 61, 63-64.
20. See Steve Charnovitz, World Trade and the Environment: A Review of the New WTO Report, 12 Geo. Int'l Envtl. Rev. 523, 524 (citing WTO Secretariat Special Studies 4, Trade and the Environment, 1999, at 3, 14, 26-27).
21. See Steve Charnovitz, World Trade and the Environment: A Review of the New WTO Report, 12 Geo. Int'l Envtl. Rev. 523, 524 (citing WTO Secretariat Special Studies 4, Trade and the Environment, 1999, at 3, 14, 26-27).
22. See id. (explaining this admission by the WTO in the 1999 report is "a clear admission that trade can have negative consequences").
23. See id. (citing the WTO Report, at 2, 26).
24. See Thomas J. Schoenbaum, Free International Trade and Protection of the Environment: Irreconcilable Conflict?, 86 Am. J. Int'l. 700, 703 (pointing to four kinds of trade restrictions: "regulations on imports exports adopted by all nations to safeguard their domestic resources and environment", enforcement of "environmental standards in international agreements", importing nations implementing restrictions because they question "the adequacy of environmental controls in other nations", and "controls on the export of hazardous products").
25. See WTO Panel and Appellate Body Reports for the following disputes: European Communities - Measures Affecting Asbestos and Products Containing Asbestos; United States - Import Prohibition of Certain Shrimp and Shrimp Products; and United States - Standards for Reformulated and Conventional Gasoline; Dispute Settlement List of Panel and Appellate Body reports (25 January 2001) 〈www.wto.org/english/tratop_e/dispu_e/distab_e.htm〉.
26. See Owen Bieber, United Auto Workers, Mastering the World Economy: Hearings before the Senate Committee on Finance, 100th US Congress, 1st Session, 1987, 48-50 (arguing "There are many countries around the world that have built an advantage in international trade by preventing workers from exercising the right to organize and bargain with employers, by failing to adopt minimum standards for conditions of work, or by allowing forced or child labour").
27. See Madeleine Albright, World Trade Organization, Secretary Albright's Welcoming Remarks, 30 November 1999, Ministerial Conference, Third Sess. WT/MIN(99)/11 and Charlene Barshefsky, World Trade Organization Ambassador Charlene Barshefsky US Trade Representative Opening Remarks, 30 November 1999, Ministerial Conference, Third Sess. WT/MIN(99)/10.
28. See Madeleine Albright, World Trade Organization, Secretary Albright's Welcoming Remarks, 30 November 1999, Ministerial Conference, Third Sess. WT/MIN(99)/11 and Charlene Barshefsky, World Trade Organization Ambassador Charlene Barshefsky US Trade Representative Opening Remarks, 30 November 1999, Ministerial Conference, Third Sess. WT/MIN(99)/10.
29. See US International Trade Commission, Trade Issues of the 1990s - Part II, Int. Econ. Rev. 18, 19 December 1994 in Raj Bhala, International Trade Law: Cases and Materials, Charlottesville, Va: Michie, 1996, 1282.
30. See US International Trade Commission, Trade Issues of the 1990s - Part II, Int. Econ. Rev. 18, 19 December 1994 in Raj Bhala, International Trade Law: Cases and Materials, Charlottesville, Va: Michie, 1996, 1282.
31. See id.
32. See Albright and Barshefsky, note 16, above.
33. See World Trade Organization, Trade and Labour Standards Subject of Intense Debate (25 January 2001) 〈http://www.wto.org/english/thewto_e/minist_e/min99_e/english/about_e/ 181ab_e.htm〉 (summarizing many of the issues raised by Members at WTO 3rd Ministerial Session in Seattle in 1999).
34. See Case Concerning the Barcelona Traction, Light and Power Company Limited, I.C.J., Jy. 24 1964 (5 May 2000) 〈http://www.icj-cij.org/icjwww/idecisions/isummaries/ibtsummary640724. htm〉.
35. See Thomas J. Schoenbaum, WTO Dispute Settlement: Praise and Suggestions for Reform, 47 Int'l Comp. L. Qrtly. 647, 653 (analysing the US Trade Act Section 301 and the European Union's Council Regulation No. 3286/94 which permit private actors to bring claims of trade treaty violations by other States).
36. This notion of a cohesive or global nature of the WTO, as opposed to individual States action, is best expressed in the Preface of the Marrakesh Agreement Establishing the World Trade Organization Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, 15 April 1994. The Preface includes these statements: the WTO "will strengthen the world economy and lead to more trade, investment, employment and income growth throughout the world"; "Ministers affirm that the establishment of the World Trade Organization (WTO) ushers in a new era of global economic co-operation, reflecting the widespread desire to operate in a fairer and more open multilateral trading system for the benefit and welfare of their peoples"; "Ministers confirm their resolution to strive for greater global coherence of policies in the fields of trade, money and finance, including cooperation between the WTO, the IMF and the World Bank for that purpose"; and "This has marked a historic step towards a more balanced and integrated global trade partnership". See WTO, Marrakesh Agreement Establishing the World Trade Organization Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, 15 April 1994 (25 January 2001) 〈www.sice.oas.org/trade/ur_round/UR01E.asp〉.
37. This notion of a cohesive or global nature of the WTO, as opposed to individual States action, is best expressed in the Preface of the Marrakesh Agreement Establishing the World Trade Organization Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, 15 April 1994. The Preface includes these statements: the WTO "will strengthen the world economy and lead to more trade, investment, employment and income growth throughout the world"; "Ministers affirm that the establishment of the World Trade Organization (WTO) ushers in a new era of global economic co-operation, reflecting the widespread desire to operate in a fairer and more open multilateral trading system for the benefit and welfare of their peoples"; "Ministers confirm their resolution to strive for greater global coherence of policies in the fields of trade, money and finance, including cooperation between the WTO, the IMF and the World Bank for that purpose"; and "This has marked a historic step towards a more balanced and integrated global trade partnership". See WTO, Marrakesh Agreement Establishing the World Trade Organization Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, 15 April 1994 (25 January 2001) 〈www.sice.oas.org/trade/ur_round/UR01E.asp〉.
38. A glance at the following WTO Membership list sparks three initial conclusions: (1) this encompasses the majority of the planet; (2) there is an enormous variation in forms of governments and their participatory nature; and (3) there is huge potential for social and business interests concerning world trade in these 140 economies. The list: Albania, Angola, Antigua and Barbuda, Argentina, Australia, Austria, Bahrain, Bangladesh, Barbados, Belgium, Belize, Benin, Bolivia, Botswana, Brazil, Brunei Darussalam, Bulgaria, Burkina Faso, Burundi, Cameroon, Canada, Central African Republic, Chad, Chile, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Estonia, European Communities, Fiji, Finland, France, Gabon, The Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea Bissau, Guinea, Guyana, Haiti, Honduras, Hong Kong, Hungary, Indonesia, Ireland, Israel, Italy, Jamaica, Jordan, Japan, Kenya, Republic of Korea, Kuwait, The Kyrgyz Republic, Latvia, Lesotho, Liechtenstein, Luxembourg, Macau, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico, Mongolia, Morocco, Mozambique, Myanmar, Namibia, The Netherlands, Netherlands Antilles, New Zealand, Nicaragua, Niger, Nigeria, Norway, Sultanate of Oman, Pakistan, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Romania, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent & the Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic, Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, Suriname, Swaziland, Sweden, Switzerland, Tanzania, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab Emirates, United Kingdom, United States, Uruguay, Venezuela, Zambia, and Zimbabwe. See WTO, Members and Observers (26 January 2001) 〈www.wto.org/english/thewto_e/whatis_e/ti_e/org6_e.htm〉.
39. The argument, here, is influenced by public choice theory. In some governments, influential sectors of society and public interests motivate free trade commitments. This leaves less powerful sectors of society in discord or without support for the State's trade policy. In analysing the never-ending EC - Bananas dispute, Raj Bhala offers this thematic syncretism between international trade and public choice theory: "Politicians are viewed as suppliers of a product, namely, policy initiatives. Voters are viewed as consumers of that product. Votes are the currency they use to 'pay' political officials for new policies. Accordingly, there is an upward-sloping supply curve for policy initiatives - more votes, more policies. There is a downward-sloping demand curve for these initiatives - the cheaper the cost, in terms of votes, the greater the demand. Where the two curves intersect an equilibrium is reached. However, voters do not all weigh in with equal force. Some voters - particularly well-organized, well-financed groups that work through sophisticated lobbyists - are more influential in pressing their case to political officials. These groups can provide a large number of votes in exchange for favourable policy initiatives. Thus, they have a particularly strong influence on policy." See Raj Bhala, The Bananas War, 31 McGeorge L. Rev. 839, 968. For more analysis of public choice theory applied to international law, see Enrico Colombatto and Jonathan R. Macey, A Public Choice Model of International Economic Co-operation and the Decline of the Nation State, 18 Cardozo L. Rev. 925, and John K. Setear, Treaties, Customs, Rational Choice, and Public Choice, 94 Am. Soc'y Int'l L. Proc. 187.
40. The argument, here, is influenced by public choice theory. In some governments, influential sectors of society and public interests motivate free trade commitments. This leaves less powerful sectors of society in discord or without support for the State's trade policy. In analysing the never-ending EC - Bananas dispute, Raj Bhala offers this thematic syncretism between international trade and public choice theory: "Politicians are viewed as suppliers of a product, namely, policy initiatives. Voters are viewed as consumers of that product. Votes are the currency they use to 'pay' political officials for new policies. Accordingly, there is an upward-sloping supply curve for policy initiatives - more votes, more policies. There is a downward-sloping demand curve for these initiatives - the cheaper the cost, in terms of votes, the greater the demand. Where the two curves intersect an equilibrium is reached. However, voters do not all weigh in with equal force. Some voters - particularly well-organized, well-financed groups that work through sophisticated lobbyists - are more influential in pressing their case to political officials. These groups can provide a large number of votes in exchange for favourable policy initiatives. Thus, they have a particularly strong influence on policy." See Raj Bhala, The Bananas War, 31 McGeorge L. Rev. 839, 968. For more analysis of public choice theory applied to international law, see Enrico Colombatto and Jonathan R. Macey, A Public Choice Model of International Economic Co-operation and the Decline of the Nation State, 18 Cardozo L. Rev. 925, and John K. Setear, Treaties, Customs, Rational Choice, and Public Choice, 94 Am. Soc'y Int'l L. Proc. 187.
41. The argument, here, is influenced by public choice theory. In some governments, influential sectors of society and public interests motivate free trade commitments. This leaves less powerful sectors of society in discord or without support for the State's trade policy. In analysing the never-ending EC - Bananas dispute, Raj Bhala offers this thematic syncretism between international trade and public choice theory: "Politicians are viewed as suppliers of a product, namely, policy initiatives. Voters are viewed as consumers of that product. Votes are the currency they use to 'pay' political officials for new policies. Accordingly, there is an upward-sloping supply curve for policy initiatives - more votes, more policies. There is a downward-sloping demand curve for these initiatives - the cheaper the cost, in terms of votes, the greater the demand. Where the two curves intersect an equilibrium is reached. However, voters do not all weigh in with equal force. Some voters - particularly well-organized, well-financed groups that work through sophisticated lobbyists - are more influential in pressing their case to political officials. These groups can provide a large number of votes in exchange for favourable policy initiatives. Thus, they have a particularly strong influence on policy." See Raj Bhala, The Bananas War, 31 McGeorge L. Rev. 839, 968. For more analysis of public choice theory applied to international law, see Enrico Colombatto and Jonathan R. Macey, A Public Choice Model of International Economic Co-operation and the Decline of the Nation State, 18 Cardozo L. Rev. 925, and John K. Setear, Treaties, Customs, Rational Choice, and Public Choice, 94 Am. Soc'y Int'l L. Proc. 187.
42. See WTO, Final Act Agreement Establishing the World Trade Organization, Annex 2, Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. III:1 (13 April 2000) 〈http://www.wto.org/wto/ legal/finalact.htm〉.
43. See ibid., at Art. III:2.
44. See ibid., at Art. XI.
45. See ibid., at Art. XIII:1.
46. See ibid., at Art. XIII:2.
47. See id.
48. See ibid., at Annex IV.
49. For an explanation of "standing" in WTO disputes, see Debra P. Steger and Peter Van Den Bossche, WTO Dispute Settlement: Emerging Practice and Procedure, 92 Am. Soc'y Int'l L. Proc. 79, 80.
50. An interesting discussion of the role of private party participation in WTO disputes is in Petro C. Mavroidis et al., Is the WTO Dispute Settlement Mechanism Responsive to the Needs of Trades? Would a System of Direct Action by Private Parties Yield Better Results? 32 J.W.T. 2 (April 1998), 147, 165. The United States has been the main promoter of opening the dispute settlement mechanism to private parties. See Robert E. Hudec, The New WTO Dispute Settlement Procedure: An Overview of the First Three Years, 8 Minn. J. Global Trade 1, 42-50. Both President William J. Clinton and Ambassador USTR Charlene Barshefsky have proposed extending WTO dispute standing to private parties. See WTO, Statement by Ambassador Charlene Barshefsky, Ministerial Conference Second Session, Geneva, 18 and 20 May 1998, WT/MIN(98)/ST/57 (23 March 2000) 〈http:// www.wto.org/wto/ddf/ep/public.html〉. Statement by H.E. William Clinton, 50th Anniversary, Geneva, 18 May 1998, WT/FIFTY/H/ST/8 (23 March 2000) 〈http://www.wto.org/wto/ddf/ep/public.html〉. See also, USTR, Press Release, 10 March 2000 (11 April 2000) 〈http://www.ustr.gov〉 (announcing USTR seeks ways to increase public input in trade policy); Press Release, 11 January 2000 (11 March 2000) 〈http:// www.ustr.gov〉 (Ambassador USTR Charlene Barshefsky and Secretary of Commerce William Daley announce procedures to seek advice from NGOs after a suit filed by NGOs against the USTR and Dept. of Commerce); US Paper for the Dispute Settlement Review, 31 October 1998 (15 February 2000) 〈http://www.ustr.gov〉 (proposing amicus curiae briefs should be permitted in WTO disputes); The Report on WTO Implementation from the President's Advisory Committee for Trade Policy and Negotiations: Cementing and Improving Existing Agreements, 11 March 1996 (23 February 2000) 〈http://www.ustr.gov/reports/wto/contents.html〉 (proposing increased transparency in WTO disputes and increasing consultations between USTR and private parties when litigating disputes).
51. An interesting discussion of the role of private party participation in WTO disputes is in Petro C. Mavroidis et al., Is the WTO Dispute Settlement Mechanism Responsive to the Needs of Trades? Would a System of Direct Action by Private Parties Yield Better Results? 32 J.W.T. 2 (April 1998), 147, 165. The United States has been the main promoter of opening the dispute settlement mechanism to private parties. See Robert E. Hudec, The New WTO Dispute Settlement Procedure: An Overview of the First Three Years, 8 Minn. J. Global Trade 1, 42-50. Both President William J. Clinton and Ambassador USTR Charlene Barshefsky have proposed extending WTO dispute standing to private parties. See WTO, Statement by Ambassador Charlene Barshefsky, Ministerial Conference Second Session, Geneva, 18 and 20 May 1998, WT/MIN(98)/ST/57 (23 March 2000) 〈http:// www.wto.org/wto/ddf/ep/public.html〉. Statement by H.E. William Clinton, 50th Anniversary, Geneva, 18 May 1998, WT/FIFTY/H/ST/8 (23 March 2000) 〈http://www.wto.org/wto/ddf/ep/public.html〉. See also, USTR, Press Release, 10 March 2000 (11 April 2000) 〈http://www.ustr.gov〉 (announcing USTR seeks ways to increase public input in trade policy); Press Release, 11 January 2000 (11 March 2000) 〈http:// www.ustr.gov〉 (Ambassador USTR Charlene Barshefsky and Secretary of Commerce William Daley announce procedures to seek advice from NGOs after a suit filed by NGOs against the USTR and Dept. of Commerce); US Paper for the Dispute Settlement Review, 31 October 1998 (15 February 2000) 〈http://www.ustr.gov〉 (proposing amicus curiae briefs should be permitted in WTO disputes); The Report on WTO Implementation from the President's Advisory Committee for Trade Policy and Negotiations: Cementing and Improving Existing Agreements, 11 March 1996 (23 February 2000) 〈http://www.ustr.gov/reports/wto/contents.html〉 (proposing increased transparency in WTO disputes and increasing consultations between USTR and private parties when litigating disputes).
52. An interesting discussion of the role of private party participation in WTO disputes is in Petro C. Mavroidis et al., Is the WTO Dispute Settlement Mechanism Responsive to the Needs of Trades? Would a System of Direct Action by Private Parties Yield Better Results? 32 J.W.T. 2 (April 1998), 147, 165. The United States has been the main promoter of opening the dispute settlement mechanism to private parties. See Robert E. Hudec, The New WTO Dispute Settlement Procedure: An Overview of the First Three Years, 8 Minn. J. Global Trade 1, 42-50. Both President William J. Clinton and Ambassador USTR Charlene Barshefsky have proposed extending WTO dispute standing to private parties. See WTO, Statement by Ambassador Charlene Barshefsky, Ministerial Conference Second Session, Geneva, 18 and 20 May 1998, WT/MIN(98)/ST/57 (23 March 2000) 〈http:// www.wto.org/wto/ddf/ep/public.html〉. Statement by H.E. William Clinton, 50th Anniversary, Geneva, 18 May 1998, WT/FIFTY/H/ST/8 (23 March 2000) 〈http://www.wto.org/wto/ddf/ep/public.html〉. See also, USTR, Press Release, 10 March 2000 (11 April 2000) 〈http://www.ustr.gov〉 (announcing USTR seeks ways to increase public input in trade policy); Press Release, 11 January 2000 (11 March 2000) 〈http:// www.ustr.gov〉 (Ambassador USTR Charlene Barshefsky and Secretary of Commerce William Daley announce procedures to seek advice from NGOs after a suit filed by NGOs against the USTR and Dept. of Commerce); US Paper for the Dispute Settlement Review, 31 October 1998 (15 February 2000) 〈http://www.ustr.gov〉 (proposing amicus curiae briefs should be permitted in WTO disputes); The Report on WTO Implementation from the President's Advisory Committee for Trade Policy and Negotiations: Cementing and Improving Existing Agreements, 11 March 1996 (23 February 2000) 〈http://www.ustr.gov/reports/wto/contents.html〉 (proposing increased transparency in WTO disputes and increasing consultations between USTR and private parties when litigating disputes).
53. An interesting discussion of the role of private party participation in WTO disputes is in Petro C. Mavroidis et al., Is the WTO Dispute Settlement Mechanism Responsive to the Needs of Trades? Would a System of Direct Action by Private Parties Yield Better Results? 32 J.W.T. 2 (April 1998), 147, 165. The United States has been the main promoter of opening the dispute settlement mechanism to private parties. See Robert E. Hudec, The New WTO Dispute Settlement Procedure: An Overview of the First Three Years, 8 Minn. J. Global Trade 1, 42-50. Both President William J. Clinton and Ambassador USTR Charlene Barshefsky have proposed extending WTO dispute standing to private parties. See WTO, Statement by Ambassador Charlene Barshefsky, Ministerial Conference Second Session, Geneva, 18 and 20 May 1998, WT/MIN(98)/ST/57 (23 March 2000) 〈http:// www.wto.org/wto/ddf/ep/public.html〉. Statement by H.E. William Clinton, 50th Anniversary, Geneva, 18 May 1998, WT/FIFTY/H/ST/8 (23 March 2000) 〈http://www.wto.org/wto/ddf/ep/public.html〉. See also, USTR, Press Release, 10 March 2000 (11 April 2000) 〈http://www.ustr.gov〉 (announcing USTR seeks ways to increase public input in trade policy); Press Release, 11 January 2000 (11 March 2000) 〈http:// www.ustr.gov〉 (Ambassador USTR Charlene Barshefsky and Secretary of Commerce William Daley announce procedures to seek advice from NGOs after a suit filed by NGOs against the USTR and Dept. of Commerce); US Paper for the Dispute Settlement Review, 31 October 1998 (15 February 2000) 〈http://www.ustr.gov〉 (proposing amicus curiae briefs should be permitted in WTO disputes); The Report on WTO Implementation from the President's Advisory Committee for Trade Policy and Negotiations: Cementing and Improving Existing Agreements, 11 March 1996 (23 February 2000) 〈http://www.ustr.gov/reports/wto/contents.html〉 (proposing increased transparency in WTO disputes and increasing consultations between USTR and private parties when litigating disputes).
54. An interesting discussion of the role of private party participation in WTO disputes is in Petro C. Mavroidis et al., Is the WTO Dispute Settlement Mechanism Responsive to the Needs of Trades? Would a System of Direct Action by Private Parties Yield Better Results? 32 J.W.T. 2 (April 1998), 147, 165. The United States has been the main promoter of opening the dispute settlement mechanism to private parties. See Robert E. Hudec, The New WTO Dispute Settlement Procedure: An Overview of the First Three Years, 8 Minn. J. Global Trade 1, 42-50. Both President William J. Clinton and Ambassador USTR Charlene Barshefsky have proposed extending WTO dispute standing to private parties. See WTO, Statement by Ambassador Charlene Barshefsky, Ministerial Conference Second Session, Geneva, 18 and 20 May 1998, WT/MIN(98)/ST/57 (23 March 2000) 〈http:// www.wto.org/wto/ddf/ep/public.html〉. Statement by H.E. William Clinton, 50th Anniversary, Geneva, 18 May 1998, WT/FIFTY/H/ST/8 (23 March 2000) 〈http://www.wto.org/wto/ddf/ep/public.html〉. See also, USTR, Press Release, 10 March 2000 (11 April 2000) 〈http://www.ustr.gov〉 (announcing USTR seeks ways to increase public input in trade policy); Press Release, 11 January 2000 (11 March 2000) 〈http:// www.ustr.gov〉 (Ambassador USTR Charlene Barshefsky and Secretary of Commerce William Daley announce procedures to seek advice from NGOs after a suit filed by NGOs against the USTR and Dept. of Commerce); US Paper for the Dispute Settlement Review, 31 October 1998 (15 February 2000) 〈http://www.ustr.gov〉 (proposing amicus curiae briefs should be permitted in WTO disputes); The Report on WTO Implementation from the President's Advisory Committee for Trade Policy and Negotiations: Cementing and Improving Existing Agreements, 11 March 1996 (23 February 2000) 〈http://www.ustr.gov/reports/wto/contents.html〉 (proposing increased transparency in WTO disputes and increasing consultations between USTR and private parties when litigating disputes).
55. An interesting discussion of the role of private party participation in WTO disputes is in Petro C. Mavroidis et al., Is the WTO Dispute Settlement Mechanism Responsive to the Needs of Trades? Would a System of Direct Action by Private Parties Yield Better Results? 32 J.W.T. 2 (April 1998), 147, 165. The United States has been the main promoter of opening the dispute settlement mechanism to private parties. See Robert E. Hudec, The New WTO Dispute Settlement Procedure: An Overview of the First Three Years, 8 Minn. J. Global Trade 1, 42-50. Both President William J. Clinton and Ambassador USTR Charlene Barshefsky have proposed extending WTO dispute standing to private parties. See WTO, Statement by Ambassador Charlene Barshefsky, Ministerial Conference Second Session, Geneva, 18 and 20 May 1998, WT/MIN(98)/ST/57 (23 March 2000) 〈http:// www.wto.org/wto/ddf/ep/public.html〉. Statement by H.E. William Clinton, 50th Anniversary, Geneva, 18 May 1998, WT/FIFTY/H/ST/8 (23 March 2000) 〈http://www.wto.org/wto/ddf/ep/public.html〉. See also, USTR, Press Release, 10 March 2000 (11 April 2000) 〈http://www.ustr.gov〉 (announcing USTR seeks ways to increase public input in trade policy); Press Release, 11 January 2000 (11 March 2000) 〈http:// www.ustr.gov〉 (Ambassador USTR Charlene Barshefsky and Secretary of Commerce William Daley announce procedures to seek advice from NGOs after a suit filed by NGOs against the USTR and Dept. of Commerce); US Paper for the Dispute Settlement Review, 31 October 1998 (15 February 2000) 〈http://www.ustr.gov〉 (proposing amicus curiae briefs should be permitted in WTO disputes); The Report on WTO Implementation from the President's Advisory Committee for Trade Policy and Negotiations: Cementing and Improving Existing Agreements, 11 March 1996 (23 February 2000) 〈http://www.ustr.gov/reports/wto/contents.html〉 (proposing increased transparency in WTO disputes and increasing consultations between USTR and private parties when litigating disputes).
56. An interesting discussion of the role of private party participation in WTO disputes is in Petro C. Mavroidis et al., Is the WTO Dispute Settlement Mechanism Responsive to the Needs of Trades? Would a System of Direct Action by Private Parties Yield Better Results? 32 J.W.T. 2 (April 1998), 147, 165. The United States has been the main promoter of opening the dispute settlement mechanism to private parties. See Robert E. Hudec, The New WTO Dispute Settlement Procedure: An Overview of the First Three Years, 8 Minn. J. Global Trade 1, 42-50. Both President William J. Clinton and Ambassador USTR Charlene Barshefsky have proposed extending WTO dispute standing to private parties. See WTO, Statement by Ambassador Charlene Barshefsky, Ministerial Conference Second Session, Geneva, 18 and 20 May 1998, WT/MIN(98)/ST/57 (23 March 2000) 〈http:// www.wto.org/wto/ddf/ep/public.html〉. Statement by H.E. William Clinton, 50th Anniversary, Geneva, 18 May 1998, WT/FIFTY/H/ST/8 (23 March 2000) 〈http://www.wto.org/wto/ddf/ep/public.html〉. See also, USTR, Press Release, 10 March 2000 (11 April 2000) 〈http://www.ustr.gov〉 (announcing USTR seeks ways to increase public input in trade policy); Press Release, 11 January 2000 (11 March 2000) 〈http:// www.ustr.gov〉 (Ambassador USTR Charlene Barshefsky and Secretary of Commerce William Daley announce procedures to seek advice from NGOs after a suit filed by NGOs against the USTR and Dept. of Commerce); US Paper for the Dispute Settlement Review, 31 October 1998 (15 February 2000) 〈http://www.ustr.gov〉 (proposing amicus curiae briefs should be permitted in WTO disputes); The Report on WTO Implementation from the President's Advisory Committee for Trade Policy and Negotiations: Cementing and Improving Existing Agreements, 11 March 1996 (23 February 2000) 〈http://www.ustr.gov/reports/wto/contents.html〉 (proposing increased transparency in WTO disputes and increasing consultations between USTR and private parties when litigating disputes).
57. An interesting discussion of the role of private party participation in WTO disputes is in Petro C. Mavroidis et al., Is the WTO Dispute Settlement Mechanism Responsive to the Needs of Trades? Would a System of Direct Action by Private Parties Yield Better Results? 32 J.W.T. 2 (April 1998), 147, 165. The United States has been the main promoter of opening the dispute settlement mechanism to private parties. See Robert E. Hudec, The New WTO Dispute Settlement Procedure: An Overview of the First Three Years, 8 Minn. J. Global Trade 1, 42-50. Both President William J. Clinton and Ambassador USTR Charlene Barshefsky have proposed extending WTO dispute standing to private parties. See WTO, Statement by Ambassador Charlene Barshefsky, Ministerial Conference Second Session, Geneva, 18 and 20 May 1998, WT/MIN(98)/ST/57 (23 March 2000) 〈http:// www.wto.org/wto/ddf/ep/public.html〉. Statement by H.E. William Clinton, 50th Anniversary, Geneva, 18 May 1998, WT/FIFTY/H/ST/8 (23 March 2000) 〈http://www.wto.org/wto/ddf/ep/public.html〉. See also, USTR, Press Release, 10 March 2000 (11 April 2000) 〈http://www.ustr.gov〉 (announcing USTR seeks ways to increase public input in trade policy); Press Release, 11 January 2000 (11 March 2000) 〈http:// www.ustr.gov〉 (Ambassador USTR Charlene Barshefsky and Secretary of Commerce William Daley announce procedures to seek advice from NGOs after a suit filed by NGOs against the USTR and Dept. of Commerce); US Paper for the Dispute Settlement Review, 31 October 1998 (15 February 2000) 〈http://www.ustr.gov〉 (proposing amicus curiae briefs should be permitted in WTO disputes); The Report on WTO Implementation from the President's Advisory Committee for Trade Policy and Negotiations: Cementing and Improving Existing Agreements, 11 March 1996 (23 February 2000) 〈http://www.ustr.gov/reports/wto/contents.html〉 (proposing increased transparency in WTO disputes and increasing consultations between USTR and private parties when litigating disputes).
58. See WTO Appellate Body Report, European Communities - Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R adopted 25 September (13 April 2000) 〈http://www.wto.org/wto/dispute/ distab.htm〉, at para. 17.
59. See ibid., at para. 7.49.
60. See ibid., at para. 136.
61. See Lauterpacht Research Centre for International Law, State Responsibility Project (25 January 2001) 〈http://www.law.cam.ac.uk/rcil/ILCSR/Statresp.htm〉 (presenting the ILC State Responsibility Reports).
62. See ILC, Draft Articles Adopted on First Reading by the Commission, 1996, Art. I. (25 January 2001) 〈www.law.cam.ac.uk/rcil/ILCSR/Arts.htm〉.
63. See ibid., at Art. 3.
64. See WTO Appellate Body Report, United States - Tax Treatment for "Foreign Sales Corporation", adopted 24 February 2000 (15 November 2000) 〈http://www.wto.org/wto/dispute/distab.htm〉, at para. 108.
65. See ibid., at para. 112.
66. See Raj Bhala, The Myth about State Decisis and International Trade Law (Part One of a Trilogy), Am. U. Int'l L. Rev. 845, The Precedent Setters: De Facto Stare Decisis In WTO Adjudication (Part Two of a Trilogy), 9 J. Transnat'l L. & Pol'y 1.
67. See Raj Bhala, The Myth about State Decisis and International Trade Law (Part One of a Trilogy), Am. U. Int'l L. Rev. 845, The Precedent Setters: De Facto Stare Decisis In WTO Adjudication (Part Two of a Trilogy), 9 J. Transnat'l L. & Pol'y 1.
68. See Peter Lichtenbaum, Procedural Issues in WTO Dispute Resolution, 19 Mich. J. Int'l L. 1195, 1203-1207 and Steger and Van Den Bossche, WTO Dispute Settlement: Emerging Practice and Procedure, 92 Am. Soc'y Int'l. Proc. 79, 80.
69. See Peter Lichtenbaum, Procedural Issues in WTO Dispute Resolution, 19 Mich. J. Int'l L. 1195, 1203-1207 and Steger and Van Den Bossche, WTO Dispute Settlement: Emerging Practice and Procedure, 92 Am. Soc'y Int'l. Proc. 79, 80.
70. See WTO Appellate Body Report, note 35, above, at para. 12.
71. See WTO Panel Report, European Communities - Regime for the Importation, Sale and Distribution of Bananas, WT.DS27/R/USA (13 April 2000) 〈http://www.wto.org/wto/dispute/distab.htm〉, at para. 7.11.
72. See ibid., at para. 12.
73. See id.
74. See id.
75. Sec Dunoff, The Misguided Debate over NGO Participation at the WTO, Int'l Econ. L. Vol. 1, No. 3 at 441 (referring to the dispute reported in Panel Report, Japan - Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, 31 March 1998 (13 April 2000) 〈http://www.wto.org/wto/dispute/distab.htm〉.
76. Sec Dunoff, The Misguided Debate over NGO Participation at the WTO, Int'l Econ. L. Vol. 1, No. 3 at 441 (referring to the dispute reported in Panel Report, Japan - Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, 31 March 1998 (13 April 2000) 〈http://www.wto.org/wto/dispute/distab.htm〉.
77. Examples include John Linarelli, The Role Of Dispute Settlement In World Trade Law: Some Lessons from the Kodak-Fuji Dispute, 31 Law & Pol'y Int'l Bus. 263, and Sara Dillon, Fuji-Kodak, the WTO, and the Death of Domestic Political Constituencies, 8 Minn. J. Global Trade 197.
78. Examples include John Linarelli, The Role Of Dispute Settlement In World Trade Law: Some Lessons from the Kodak-Fuji Dispute, 31 Law & Pol'y Int'l Bus. 263, and Sara Dillon, Fuji-Kodak, the WTO, and the Death of Domestic Political Constituencies, 8 Minn. J. Global Trade 197.
79. See note 50, above, at 441-448.
80. See ibid., at 442.
81. The Dewey Ballantine team of attorneys included: former USTR officials who had served as Deputy Special Representative for Trade Negotiations and General Counsel, Director for Japanese Affairs and Special Counsel to the Deputy USTR, Associate Counsel, Assistant US Trade Representative for China and Japan, former International Trade Counsel to the Ways and Means Committee, and former Chief of the Trade Policy Unit at the US Embassy in Japan. See ibid., at 443.
82. See ibid., at 442.
83. See ibid., at 445-447.
84. See ibid., at note 49.
85. See ibid., at 444.
86. See ibid., at 447.
87. See id.
88. See id.
89. See id.
90. The simplest and most agreed upon definition of amicus curiae brief is a brief submitted to a court by someone not a party to the dispute. Dinah Shelton offers this description from Justice Arthur Goldberg in United States v. Barnett: A traditional function of amicus curiae is to assert 'an interest of its own separate and distinct from that of [parties]', whether that interest be private or public. It is 'customary for those whose rights [depend] on the outcome of cases ... to file briefs amicus curiae, in order to protect their own interests'. See Dinah Shelton, The Participation of Non-governmental Organizations in International Judicial Proceedings, 88 American J. Int'l L. 611, 617.
91. Of particular litigation significance is the res judicata implications of presenting certain legal issues. Parties may be unwilling to present an issue if there is a fear that it cannot be resolved in their favour. In such a situation, the party may be precluded from raising the issue again in another dispute. Accordingly, amicus curiae participation provides a significant input to the resolution of a case. An amicus curiae does not fear the issue cannot be raised again or that this particular proceeding is the "one shot" to present this legal point of view. This evasion of res judicata implications has proved vital in developing new arguments. See id.
92. See Philip I. Levy and T.N. Srinivasan, Regionalism and (Dis)advantage of Dipute-Settlement Access, American Economic Review, Vol. 86, No. 2, 93-98.
93. See id.
94. See ibid., at 95, 97 (explaining deciding to raise a dispute may adversely affect the "state of economic relations" and "... altering the structure of the dispute-settlement procedure is not necessarily beneficial, and that it is likely to alter the type of agreements that governments are willing to sign"); see also Bernard M. Hoekman and Petros Mavroidis, WTO Dispute Settlement, Tranparency and Surveillance, The World Economy, April 2000, 530.
95. See Levy and Srinivasan, note 65, above, and Hoekman and Mavroidis, note 67, above.
96. Amicus curiae cannot direct or manage what issues a tribunal does or does not hear. The parties to the dispute still have paramount power in this respect, by choosing what issues will be brought before a court. Also, amicus curiae are not served with many of the notices and discovery aspects of a trial. Similarly, amicus curiae cannot offer evidence or examine the evidence of the parties. See Shelton, note 63, above.
97. In United States courts amicus curiae must request leave of the court to file a brief. The International Court of Justice permits submissions from non-governmental organizations in advisory proceedings. The European Court of Justice permits for amicus curiae intervention. The European Court of Justice is charted to accept complaints by both Member States and individuals. The European Court of Human Rights requires amicus curiae to demonstrate a legal interest and proper administration of justice. These two standards have served to limit the number of amicus curiae filing. The Inter-American Court of Human Rights accepts amicus curiae briefs. This is done without any expressed authorization for the convention of the rules of the court. See Shelton, note 63, above, at 619.
98. See WTO Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 12 October 1998 (13 April 2000) 〈http://www.wto.org/wto/dispute/distab.htm〉, at para. 86.
99. See ibid., at para. 82.
100. See id.
101. See ibid., at para. 82, footnote 66.
102. See ibid., at para. 114, overturning the Panel Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R (13 April 2000) 〈http://www.wto.org/wto/dispute/distab.htm〉, para. 7.8.
103. See the Panel Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products, note 75, above, at para. 3.129.
104. See ibid., at para. 7.8.
105. See WTO Appellate Body, United States - Import Prohibition of Certain Shrimp and Shrimp Products, note 71, above, at para. 105.
106. See id.
107. Emphasis added. See ibid., at para. 105.
108. See ibid., at para. 147.
109. See ibid., at paras 84-86.
110. See ibid., at para. 108.
111. See id.
112. See ibid., at para. 108.
113. See ibid., at para. 109.
114. See id.
115. See ibid., at para. 111.
116. See id.
117. See id.
118. See id.
119. See Appellate Body, United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/AB/R. (15 November 2000) 〈http:// www.wto.org/wto/dispute/distab.htm〉, para. 42.
120. See ibid, at para. 41.
121. See id.
122. See ibid., at paras 41 and 36.
123. See ibid., at para. 38.
124. See ibid., at para. 36.
125. See ibid., at para. 39.
126. See Briefs in a twist, Economist, 9 December 2000.
127. See WTO, Appellate Body, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, 12 March 2001, para. 50.
128. See WTO, Appellate Body, Communication from the Appellate Body, WT/DS135/9, 8 November 2000.
129. The Appellate Body explained these rules were enacted in the "interests of fairness and orderly procedure" with authority form Rule 16(1) of the Working Procedures for Appellate Review. The standard created by the Appellate Body was "any person, whether natural or legal, other than a party or a third party to this dispute" may file a written brief. For the application for leave, applicants needed to: limit the application to 3 typed pages, describe the applicant and its general objectives, identify specific issues of law, explain why it is desirable to grant the leave, and disclose any relationship with the parties. The Appellate Body notes it would "review and consider each applicant for leave to file." The actual brief was limited to 20 typed pages and the requirement to make a "precise statement, strictly limited to legal arguments." See ibid.
130. See ibid.
131. See Briefs in a twist.
132. See WTO, European Communities - Measures Affecting Asbestos, at para. 55.
133. See ibid., at para. 56.
134. See ibid., at para. 56.
135. See ibid., at para. 50.
136. WTO, Appellate Body, Communication from the Appellate Body.
137. These NGOs include: Asbestos Information Association (United States); HVL Asbestos (Swaziland) Limited (Bulembu Mine); South African Asbestos Producers Advisory Committee (South Africa); J & S Bridle Associates (United Kingdom); Associação das Indústrias de Produtos de Amianio Crisótilo (Portugal); Asbestos Cement Industries Limited (Sri Lanka); The Federation of Thai Industries, Roofing and Accessories Club (Thailand); Korea Asbestos Association (Korea); Senac (Senegal); Syndicat des Métallos (Canada); Duralita de Centroamerica, S.A. de C.V. (El Salvador); Asociación Colombiana de Fibras (Colombia); and Japan Asbestos Association (Japan). See WTO, European Communities - Measures Affecting Asbestos, at para. 53
138. These NGOs include: Association of Personal Injury Lawyers (United Kingdom); All India A.C. Pressure Pipe Manufacturer's Association (India); International Confederation of Free Trade Unions/European Trade Union Confederation (Belgium); Maharashtra Asbestos Cement Pipe Manufacturers' Association (India); Roofit Industries Ltd. (India); and Society for Occupational and Environmental Health (United States). See ibid., at para. 55.
139. These submissions include: Professor Robert Lloyd Howse (United States); Occupational & Environmental Diseases Association (United Kingdom); American Public Health Association (United States); Centro de Estudios Comunitarios de la Universidad Nacional de Rosario (Argentina); Only Nature Endures (India); Korea Asbestos Association (Korea); International Council on Metals and the Environment and American Chemistry Council (United States); European Chemical Industry Council (Belgium); Australian Centre for Environmental Law at the Australian National University (Australia); Associate Professor Jan McDonald and Mr. Don Anton (Australia); and a joint application from Foundation for Environmental Law and Development (United Kingdom), Center for International Environmental Law (Switzerland), International Ban Asbestos Secretariat (United Kingdom), Ban Asbestos International and Virtual Network (France), Greenpeace International (The Netherlands), World Wide Fund for Nature, International (Switzerland), and Lutheran World Federation (Switzerland). See ibid., at para. 55.
140. See WTO Appellate Body, United States - Import Prohibition of Certain Shrimp and Shrimp Products, note 71, above, at para. 155.
141. See id.
142. See id.
143. See id.
144. See ibid., at paras 157, 158.
145. WTO, Dispute Settlement Body, Minutes of Meeting, WT/DSB/M/50, 14 December 1998 (23 March 2000) 〈http://www.wto.org/wto/ddf/ep/public.html〉.
146. See id.
147. See id.
148. See id.
149. See id.
150. See id.
151. The United States prohibited imports of shrimp and shrimp products by methods not using TEDs. The United States sought to keep the measure. Interests not related to the US government, outside the United States, and perhaps not in dialogue with the United States sought to influence the dispute.
152. See CIEL, An introduction: The Shrimp/Turtle Dispute and CIEL's Amicus curiae Brief, (13 April 2000) 〈http://www.igc.org/ciel/shptur.html〉.
153. See CIEL, Motion to Submit Amicus curiae Brief to the Panel on United States - Import Prohibition of Certain Shrimp and Shrimp Products, 17 September 1997 (13 April 2000) 〈http://www.igc.apc.org/ciel/second.html〉.
154. See id.
155. See id.
156. In its brief submitted to the Appellate Body, the WWF argued the Panel misunderstood the roles of amicus curiae briefs. The WWF stressed amicas curiae could provide factual and legal information not offered by any of the parties, information from an expert source, and information "as to the broader implication of decisions beyond the immediate interests of the parties in the dispute, particularly where, as in the present case, a decision may have a significant impact on matters of public interest." At the international level, there is increasing recognition of the value of allowing tribunals to take account of the information made available by non-parrtes to proceedings. To date this trend is particularly evident in human rights tribunals and in international criminal tribunals. See WWF, at 〈http://panda.org/resources/sustainability/wto-acb/wto2.htm〉 (22 March 2001).
157. See id.
158. See CIEL, Motion to Submit Amicus curiae Brief to the Panel on United States - Import Prohibition cf Certain Shrimp and Shrimp Products, note 117, above.
159. See id.
160. See note 22, above.