International Journal of Law and Legal Jurisprudence Studies

AMICUS CURIAE BRIEFS UNDER THE WTO DISPUTE SETTLEMENT SYSTEM-Kavitha Ananth,National law University, Delhi

 

Abstract:

The WTO operates on a strictly inter-governmental level. Although the use of solicited expert advice on factual issues is widely accepted to be in consonance with the provisions of its dispute settlement system, it is the use of unsolicited advice submitted by non-governmental organizations in the form of Amicus Curiae briefs that has emerged as one of the most controversial issues among members of the WTO community. In international and regional courts, permitting amicus briefs is not very common. Under the WTO, there is no specific language in the Dispute Settlement Understanding or in the working procedures for Appellate review that permits submission of unsolicited briefs by member or non-member organizations. Thus, lending credibility to the submission of unsolicited amicus briefs has been challenged by many member countries. This has further been amplified by controversial decisions by the Appellate body. Through this paper, the researcher will study the jurisprudence existing in respect of submission of amicus curiae briefs before the WTO and the arguments in favour of and against the acceptance of such briefs. Further, the researcher will look at WTO provisions in this regard and analyse the legal basis for the submission of amicus curiae briefs before the WTO.

AMICUS CURIAE BRIEFS UNDER THE WTO DISPUTE SETTLEMENT SYSTEM

 

1. Introduction

The World Trade Organization (hereinafter “WTO”) operates on a strictly inter-governmental level. Although the use of solicited expert advice on factual issues is widely accepted to be in consonance with the provisions of its dispute settlement system, it is the use of unsolicited advice or comment submitted by non-governmental organizations in the form of Amicus Curiae[1] briefs that has emerged as one of the most controversial issues among members of the WTO community. In international and regional courts, permitting amicus briefs is not very common. With regard to the WTO, there is no specific language under the dispute settlement rules or the working procedures for Appellate review that permits submission of unsolicited briefs by member or non-member organizations. Lending credibility to the submission of unsolicited amicus briefs has thus been challenged by a number of countries many a time. This has further been amplified by certain controversial decisions by the Appellate body. This paper attempts to analyse and critique the arguments in favour and against the submission of unsolicited amicus curiae briefs before the WTO.

Through this paper, the researcher will study the jurisprudence existing in respect of submission of amicus curiae briefs before the WTO and the arguments in favour of and against the inclusion of such briefs. Further, the researcher will also look at WTO provisions in this regard, to analyse the legal basis for the submission of amicus curiae briefs before the WTO.

2. Amicus Curiae- etymology and relevance 

The Black’s law dictionary defines amicus curiae to mean, literally, “friend of the Court”[2]. It envisages a person with a strong interest in the matter, but not a direct party to the action or claim, making a petition to the Court asking for permission to file a brief[3]. This is generally seen in cases involving substantial public interest[4].

Studies suggest that the concept of ‘amicus curiae’ was imbibed as a common practice during the 17th century in England and soon crossed the Atlantic Ocean to fuse with the culture developed in the U.S Courts as well[5]. This is further reiterated if we look at the practice of international institutions that provide for persons who are not parties to a dispute to bring forward information, statistics, data and reports to assist in the dispute settlement process. For instance, the European Community Courts permit intervention by a person or institution who can establish an interest in the result of the proceedings before the European Court of Justice[6]. The European Court of Human Rights, although it did not do so initially, has amended its rules to provide for a similar concept, whereby the President of the chamber may, in the interest of justice (only in certain situations), invite any contracting state (not a party) to the dispute to make written submissions[7].

Recent decades have seen a stark rise in the number of legal disputes. Further, they have also witnessed significant involvement of non-state actors as non-disputing parties in such dispute settlement processes. Most commonly, Non-Governmental Organizations (hereinafter “NGOs”) are the non-state actors that use the forum of ‘amicus curiae’ briefs and submit briefs as intervening parties who are not actually a party to the dispute[8].

3. Amicus Briefs under the WTO Regime

The General Agreement on Trade and Tariffs (hereinafter “GATT”), the predecessor to the WTO, did not permit non-members and thereby non-governmental actors to submit unsolicited briefs during the process of dispute resolution[9], the only exception being if they have been formally adopted by one of the parties to the dispute.

3.1 Position under the DSU

The Understanding on Rules and Procedures on Dispute Settlement, as annexed to the “Final Act” signed in Marrakesh in 1994 (hereinafter “DSU”) was agreed upon with the object of regulating inter-state commercial activities. It is ironic that although commercial activities majorly lie in the domain of private actors and the most disputes question the acts of corporations, that the WTO imposes obligations only upon states and does not address private actors[10]. Nevertheless, recent years stand testimony to the rising claims that the rights of society are indeed affected by GATT/WTO rules, and that certain interest groups have been able to exercise a powerful sway[11]. Thus, the desire of civil society to participate in the process of dispute resolution is evidenced by the rising number of amicus briefs filed before the WTO. The vision of the Dispute Settlement Body provides for interpreting the rules of the WTO in light of emerging social aspirations, the interests of which member states of the WTO are meant to represent.[12] The move to submit amicus briefs is to be looked at through this lens, i.e. to assist civil society in its desire to take part in the process of international dispute resolution[13].

There is no specific language under the DSU that permits submission of unsolicited briefs by member or non-member organizations. Article 13 grants each panel the right to ask for information from each party, or anyone, including experts, that it feels is necessary to aid in the understanding of the issues in the case. No member has challenged the fact that Article 13 of the DSU authorizes a panel to solicit expert advice[14]. The issue is that most members, particularly developing countries, feel that it is only in this context that Article may be applied and extending the same Article to lend credibility to the submission of unsolicited amicus briefs is unacceptable. Hence, a great deal of debate has surrounded the use of unsolicited advice and comments in the form of amicus curiae briefs.

 

3.2 1st landmark case- US- Shrimp decision

The practice of submitting amicus curiae briefs seems to have commenced in the cases of United States- standards for Reformulated and conventional Gasoline[15] and EC Measures Concerning Meat and Meat Products (Hormones)[16]. Such submissions were outrightly rejected by the panel[17]. However, such submissions were continually submitted until the issue was dealt with in the United States – Import Prohibition of Certain Shrimp and Shrimp Products[18] (“US-Shrimp”) case.

3.2.1 Factual background and ruling of the Panel

The dispute originated in a claim brought by the WTO member countries of India, Pakistan, Malaysia, and Thailand. In accordance with its national law on endangered species, U.S required all shrimping vessels to be fitted with turtle excluder devices in order to protect endangered sea turtles from inadvertently getting trapped and killed. U.S refused to import shrimp from the countries that did not comply with this requirement. However, it did provide automatic immunity from this import ban to certain countries based on certain criteria. When this act was challenged before the Panel, the U.S. argued that such a restriction was indeed essential as sea turtles were an endangered species across the World. Further, they adduced three amicus curiae briefs prepared by NGOs[19].

In support of the submissions of these briefs, the U.S. argued that while Article 13 of the DSU permits a panel or appellate body to accept submissions by any source it so chose, it does not specifically deny such submissions merely because they were unsolicited. By denying the submission of the briefs by NGOs, the U.S. argued that the Panel would limit the options for information that the DSU grants to the panels and Appellate Body. However, the four Asian countries protested the use of the briefs as being strictly prohibited by Article 13[20]. According to them, the control of outside information was specifically granted to the panel and Appellate Body members, and that only these members have discretion in seeking information applicable to each case. The Panel rejected the unsolicited information provided by these three NGOs relying on its interpretation of Article 13.2 of the DSU, stating that the right to seekinformation meant that the submission of information by private parties can be accepted only if specifically requested by the Panel, and that the provisions of the DSU did not provide for acceptance of unsolicited briefs from such private parties who are not a party to the dispute[21].

3.2.2 Decision of the Appellate Body

On appeal, U.S. reiterated its stance that amicus briefs must be admissible in dispute settlement proceedings of the WTO. The Asian countries pointed out various reasons not to include such submissions, an important one being that since WTO members who are not part of the original dispute are denied the chance to participate by submitting amici briefs, it would be unreasonable for the panels or the Appellate Body to accept such briefs from non-member, non-governmental groups[22].

Deciding on the issue in a preliminary decision, The Appellate Body criticized as too narrow and technical the panel’s interpretation of the right to seek information under Article 13 of DSU[23]. Observing that the right to ‘seek’ information would be improperly understood as prohibiting unsolicited information, it stated that such a right would include the right to accept information, even if not solicited[24]. A combined reading of articles 12 and 13 of the DSU revealed that the panel has ample and extensive authority to undertake and control the process by which it informs itself of the facts relevant to the dispute and the legal norms and principles applicable to such facts in order to make an objective assessment of the dispute[25]. Bringing about a distinction between what a panel is “obliged” to do and what it is “authorised” to do with submissions made before it, the Appellate Body stated that panels are obliged to take into consideration submissions of parties to the dispute, but are authorised to accept submissions made by NGOs[26]. Therefore it clearly stated that panels do have the discretionary authority to accept information submitted by NGOs under Articles 11, 12 and 13 of the DSU in the form of amicus briefs, whether or not attached to a member’s submission[27], determine the relevancy of such information or advice and finally decide the weight to be given to such material[28].

 

3.3 Subsequent panel reports

Subsequently, numerous reports have been released by the Panel where amicus submissions have been submitted. In EC hormones[29], the Appellate body reaffirmed the view taken by it in that Article 13 enables a panel to exercise its discretion in deciding as to whether advice from an expert group was appropriate or unnecessary. In the US copyright case[30], the panel forwarded to the parties for their comments a letter received from a law firm. While USA maintained its stance with respect to supporting private parties voicing their views but negated the letter stating it had little value, the EC strictly stated that accepting such submissions was outside the purview of the panel’s authority. Although the panel did not outrightly reject the letter, it impliedly did so by stating that the letter had little to add to its findings and did not materially affect its conclusions[31].

 

3.3.1 US- lead and Bismuth report

An arterial ruling where the Appellate Body considered its own power to consider unsolicited amicus curiae briefs is the United States-Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom[32]. It explicitly stated that it had the power to consider amicus briefs in accordance with Article 17.9 of the DSU which read that working procedures shall be drawn up by the Appellate Body in consultation with the Chairman of the DSB and the Director-General, and communicated to the Members for their information[33] and its grant of broad authority to adopt procedural rules, provided that such rules do not conflict with the DSU or any covered agreements[34]. However, the Appellate Body stated that individuals and organizations, which are not Members of the WTO, have no legal right to make submissions to or to be heard by the Appellate Body, i.e. The Appellate Body has no legal duty to accept or consider unsolicited amicus curiae[35].

This has emerged as a very controversial statement as it seems to accord no legal right to submission of amici briefs, but rather accords a discretionary role to panels and the Appellate Body.

3.3.2 EC asbestos- guidelines for submission of amicus briefs

In the issue of European Communities – measures affecting asbestos and asbestos-containing products[36], the Appellate body, utilizing rule 16(1) in the Working Procedures for Appellate Review[37] evolved a case-specific two-step process which would regulate amici submissions. The process dictated that a prospective amicus first has to apply for permission to file a brief showing cause as to why its submission would have something new and material to add to the proceedings after which, if accepted, should file a brief not exceeding 20 pages discussing issues specified in the request[38]. This move of the Appellate Body was subject to extreme criticism by the members in a special session on the additional procedures, at the end of which the then Chairman of the General Council stated he would convey to the Appellate Body to exercise utmost caution in this issue[39]. However, it is felt that rule 16(1) dies indeed permit the Body to draw up procedures to be applied to a specific case. In any case, adoption of a procedure by the appellate Body to enable receipt of information from non-parties in a transparent and orderly manner does not upset the institutional balance between the WTO dispute settlement procedure and the General Council’s authority, as argued by the other members[40].

 

3.3.3 EC- Sardines ruling- can members who are not third parties to a dispute file amicus briefs?

In European Communities-Trade Description of Sardines[41], the question of whether members can file amicus briefs despite not being third parties to the dispute was raised.The matter revolved around a dispute between Peru and the European Communities, wherein Morocco field an amicus curiae brief, although it did not have a third party status in the dispute[42]. This was strongly opposed by Peru stating this would tantamount to circumventing the DSU, which imposes conditions under which WTO members can participate as third parties to a dispute[43]. However, the Appellate Body rejected this contention and upheld its discretion to accept amicus briefs, even from WTO members. The basis for such a decision was that the Appellate Body could not treat non-members more favorably than its own members[44]. As previous Appellate Body rulings had held that non-members could make amicus submissions, it was entitled to extend this to members as well.  Stating that there was no provision in the DSU prohibiting the same, and that the Appellate Body had wide powers under Article 17.9 of the DSU to regulate its own procedures[45], it was observed that there was no necessity to draw negative inferences from narrowly constructed DSU rules, as was held in the previous rulings of the Appellate Body[46].

While those critical of the WTO’s move to accept amicus submissions from NGOs feel that such a move favours developed countries as most research centres and NGOs tend to be located in such countries[47], this ruling may be seen as a positive step, as it may alleviate concerns of developing countries not being heard. This ruling may allow WTO members to access the Appellate Body in disputes which may have an impact on them, but was not foreseen by them at the time appropriate for intervention as a third party[48]. However, on the flipside, this ruling allows for WTO members to engage in ambush-style tactics, with quintessential arguments strategically being withheld till the end[49]. Such undesirable practices ought to be curbed by instituting a procedure for acceptance of such briefs. One such model has been suggested by the European Community which provides a longer window for the participation of other WTO members while respecting the interests of the parties to the dispute[50]. However, any such suggestions are yet to be tested in the WTO.

4. Should amicus curiae briefs be accepted under the Dispute Settlement Understanding?

While countries such as U.S.A, New Zealand and Switzerland are completely in favour of the submission of amicus curiae briefs and advocate for the formalization of this procedure, developing countries including India are vehemently against the same as they argue that WTO members can only be heard in a dispute if they are a primary or third party. Adopting a less belligerent stance, Canada and the European Union are of the view that while opening up of a formerly closed system would be beneficial, such a move must be taken by the WTO members themselves, and not by the Panels or Appellate Body[51]. The arguments advanced by both sides provoke interesting thought. It would be useful to take a look at them.

4.1 Arguments in favour of submission of amicus briefs

4.1.1 Contribute to the fact-finding process

Globalization has indeed spurred an inter-weaving of the laws of all states and resulted in the creation of multifarious international conventions, laws and agreements, thereby causing an increase in the complexities that plague each dispute before the WTO. The DSU provides that the panel is required to make an objective assessment of the facts of each case that comes before it. In order to do this, it is required to make a factual record[52] and finally, a final report[53]. In furtherance of the same, the panel has the power to seek information to make the factual record complete[54]. The fact-finding process undertaken by the panel is beleaguered with difficulties as in many a case parties may not be forthcoming with unfavourable facts which may nevertheless be crucial for the resolution of the dispute. Coupled with this difficulty is the handicap of the panel resulting from its inability to sub poena witnesses and enforce information requests[55].  The judge thus has to gather all the key facts, cull out the material juridical issues and further identify parameters for resolution. This being the context, it is argued that amici curiae can aid the process of dispute resolution by clarifying the multiple laws applicable and classifying all the interests at stake in each dispute[56].  The wealth of knowledge, resources and analytical capacity possessed by NGOS’ in their realms of expertise makes them an intellectual match for Governments[57].

4.1.2 Encourage transparency

For those in favour of accepting these submissions, the issue is intricately linked to concerns regarding transparency of panel and Appellate body proceedings[58]. Since the norms of international law address states as well as individuals and that it is primarily their conduct and activities that impact the national as well as global market places , it is only fair to say that individuals and other non-state actors must also have an interest in international dispute settlement[59]. In that sense, participation of NGOs in the dispute settlement mechanism is more to benefit the greater public interest and augment transparency and openness of the entire process[60]. This view has also been endorsed by the Panel in the case United States- Sections 301-310 of the Trade Act of 1974[61].

4.1.3 Bring material facts to light

In cases where one of the parties to the dispute is financially no match for the other, material facts may pass without having surfaced at all purely because of the lack of quality legal representation. Submission of amicus curiae briefs in these situations may add substantially to the knowledge of the panel of Appellate Body and aid them significantly in making an objective assessment of the dispute at hand.

4.2 Arguments against amicus briefs

While arguments in favour of submission of amicus briefs seem to illustrate noble concerns of transparency and enhanced fact-finding, it is essential to check if the legal framework of the WTO supports the same. It is here that the arguments of various member countries, particularly those of the European Community, India, Hong Kong, China, Brazil and Uruguay, hold water.

4.2.1 Matter of principle: only members can decide

The argument of most developing countries against the submission of amicus briefs in dispute settlement proceedings is not procedural, but substantive: that only members can decide[62]. One of the fundamental tenets on which the WTO is based is that it is inter-governmental and confidential. Its original design, i.e. the Uruguay round of negotiations, does not provide for private parties to establish their claims or interests, and has expressly provided provisions to safeguard third-party interests where required and therefore it is argued that there is no necessity to alter the relationship between bodies in the system[63]. Additionally, it is their view that the term ‘seek’ under Article 13 clearly shows that the initiative to submit information must flow from the panel and not the other way around.

4.2.2 The Appellate Body has no power to accept amici briefs

Another major criticism with respect to submission of amicus curiae briefs at the appellate level stems from the confusion regarding whether the Appellate body even has the power to entertain such briefs on factual or legal questions at the appellate level. Article 13 of the DSU does not apply to the Appellate Body[64] and that, in any case, that provision is restricted to factual information and technical advice, and does not include legal arguments or legal interpretations received from non-members.[65] Even with regard to the Appellate Body, the provisions do not provide any power to accept unsolicited information. In any case, Article 17 of the DSU states that an appeal is to be limited to legal questions only, and hence an amicus brief submitted at the appellate stage can contain only legal issues[66].

4.3 Analysis

Article 13 of the DSU gives the Panel the right to seek information and technical advice from any individual or body as it deems appropriate, and the discretion to request an advisory report from an expert review group on a factual issue concerning a scientific or other technical matter raised by a party to a dispute[67].As is seen, a clear reading of the Article reveals that nowhere is the Panel given the power to accept unsolicited briefs from non-governmental organizations. Therefore, there is no legal basis for permitting the same.

With regard to the provisions regarding Appeal, the DSU provides only for third parties which have notified the Dispute Settlement Body of a substantial interest in the matter may make written submissions[68] and the Working Procedures for Appellate review confine participation in an appeal to participants and third participants[69], while providing for the confidentiality of Appellate Body proceedings[70].[71]

An appeal to the Appellate Body shall be limited to issues of law covered in the Panel report and the legal interpretation developed by the panel[72]. Working procedures in relation to the same are only to aid in the disposal of the appeal, arising out of the panel report. Working procedures shall be drawn up by the Appellate Body in consultation with the Chairman of the DSB and the Director-General, and communicated to the Members for their information[73]. A very important provision in this regard is that which states that while disposing an appeal, if a procedural question not covered by the rules arises, the Appellate Body may, in the interests of fairness and orderly procedure, adopt an appropriate procedure for the purposes of that appeal only, provided that it is not inconsistent with the DSU and other relevant rules[74]. On such adoption, the participants and third participants in the appeal as well as the other Members of the Appellate Body are to be immediately notified[75]. Thus, the provisions do not empower the Appellate Body to draw up, modify or amplify working procedures in a case to suit requirements devised by it from to time. Therefore, it is argued that the DSU does not permit the Appellate Body to receive amicus curiae briefs at the appeal stage. Since the dispute settlement framework envisaged clearly provides for a two-tiered scrutiny, the introduction of amicus briefs at the appellate level would clearly defeat the object behind having such a structure, thereby threatening the system[76].

Therefore, it is seen that legally, there is no basis for the admissibility of amicus briefs in the dispute settlement mechanism of the WTO.

Moreover, unless these amicus briefs bring to light a relevant matter not already pointed out by the parties to the dispute, it is argued that these briefs do not serve their purpose and unnecessarily burden the Court[77].  Further, the amicus might be an entity that might be affected by the determination of a legal issue in a case, or an organization with high level of expertise, unmatched by private counsels[78] and hence it might be unfair to some developing countries.

5. Conclusion

The move towards acceptance of amici briefs before the Panel in view of alleviating concerns of transparency in the dispute settlement system is indeed a noble one. In some cases, these briefs may even provide objective and useful inputs on complex environmental, technical and even legal issues that elicit an in-depth study.

However, the fact remains that the text of the DSU, as it is today, does not support such an interpretation. The hypothesis made outset of this paper is thus proved. The argument that no express prohibition on acceptance of amici briefs means that they are permissible is untenable. If that is the case, such reasoning may be extended to permit all activities that have not been expressly prohibited, which might even prove catastrophic.

If a shift is to be made with regard to the acceptance of these briefs, the ideal situation would be for such a move to be made by the General Council with the consensus of members. However, seeing as the US-Shrimp decision has been adopted by the WTO members, the issue that is now faced is whether WTO members want to amend the DSU to prohibit the same in light of the objections of WTO members or whether they want to put in place procedures to standardize and regulate the handling of such briefs[79]. The U.S. being so strongly in favour of the submission of these briefs, it is unlikely that a move to amend the DSU will be accepted[80]. Therefore, the possibility of these submissions is a reality. In light of this, it would be prudent to evolve certain conditions to which these amicus briefs have to conform in order to protect due process, confidentiality and fairness[81]- perceived public interest’ nature of the dispute, the role of the NGOas a representative of that interest and the consequent utility of the brief in assisting the tribunal by presenting arguments and perspectives apart from those submitted by parties to the dispute have been suggested[82]. The two-step process elucidated by the Appellate body in the EC Asbestos case[83] is one mechanism worthy of consideration. Such a framework could serve as a basis for negotiations among members[84].

However, it would be pertinent to highlight certain concerns that arise from this system- firstly, whether the parties to the dispute have a right to be notified and to reply in the event the panel or appellate body decide to use a specific argument found only in these briefs?[85]  In the opinion of the researcher, they should be given the opportunity to reply as it is only fair and just to do so in the event the Panel takes into account a point made in these amici submissions. Secondly- whether parties should have an opportunity to argue for or against the grant of permission to submit amicus briefs in each case?[86] It is felt that such an opportunity is not required and may unnecessarily prolong the proceedings. If the mechanism developed and the abovementioned right of notice and reply are provided, there should be no cause of concern for parties.

Although discussions may churn out plausible solutions in theory, practice shows that while having accepted the principled authority to accept amicus submissions, the Appellate Body hardly ever considers unsolicited NGO submissions not included in the submission of parties. Although not rejected on principle, they are rarely found to be pertinent or useful[87]. It has thus been pointed out that the effect of amicus participation in WTO Proceedings, in terms of the explicit consideration of the arguments put forward by NGOs, has remained relatively limited[88]. Nevertheless, agreeing on guidelines in order to submit the same is a prudent move. Such consensus must be achieved by the members in order to ensure that all their interests are adequately represented. If such a framework is indeed agreed upon, it is possible that balance may have been struck in this currently bi-polar situation.

[1] Friend of the Court.

[2] black’s law dictionary 98 (9th ed. 2009).

[3] Id.

[4]Laurence Boisson De Chazournes & Makana Moise Mbengue, The Amici Curiae and the WTO Dispute Settlement System: the Doors are open, 2 law & prac. Int’l cts. & tribunals 205, 207 (2003).

[5]Jared B. Cawley, Friend of the Court: how the WTO justifies the acceptance of the Amicus Curiae brief from non-governmental organizations, 23 penn st. int’l l. rev. 47, 48-49 (2004-2005).

[6]Dinah Shelton, The Participation of Nongovernmental Organizations in International Proceedings, 88 american.journal of international law 611, 616 (1994).

[7] Issues of Amicus Curiae submissions: note by the editors, 3 j. int’l econ. l. 701, 704 (2000).

[8]Eric De Brabandere, NGOs and the “public interest”: the legality and rationale of Amicus Curiae interventions in international economic and investment disputes, 12 chi. j. int’l l. 85, 86 (2011-2012).

[9]Supra Note 5, at 48.

[10] Supra Note 8, at 96.

[11]Gabrielle Marceau & Peter N. Pedersen, Is the WTO Open and Transparent?- A Discussion of the Relationship of the WTO with  Non-governmental Organisations and Civil Society’s Claims for more Transparency and Public Participation, 33 j. world trade 5, 6 (1999).

[12] Supra Note 4, at 205.

[13] Id.

[14]yang guohua et al., wto dispute settlement understanding- a detailed interpretation 173 (2005).

[15] Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (May 20, 1996).

[16]Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), wt/ds26/ab/r,wt/ds48/ab/r (13 February 1998).

[17] Supra Note 14, at 174. See also Padideh Ala’I, Judicial lobbying at the WTO- the debate over the use of amicus curiae briefs and the U.S. experience, 24 Fordham int’l l. j. 62, 69 (2000-2001).

[18]Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, wt/ds58/ab/r (Oct. 12, 1998) (hereinafter “US-Shrimp”).

[19]Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, wt/ds58/r (15th May, 1998).

[20]Id.

[21] Id. at ¶ 7.7-7.8.

[22]US- at ¶  32.

[23] Supra Note 18.

[24]Id. at ¶ 107.

[25]Id. at ¶ 104.

[26] Id.

[27] Id. at ¶ 106 & ¶ 108.

[28] Id. at ¶ 104.

[29] Supra Note 16.

[30]Panel Report, United States – Section 110(5) of US Copyright Act, WT/DS160/R (15 June 2000).

[31]Id. at ¶  6.8.

[32]Appellate Body Report, United States-Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS 1 38/AB/R (10 May 2000) (hereinafter “US- lead and Bismuth”).

[33]Understanding on Rules and Procedures Governing the Settlement of Disputes Art. 17.9, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex. 2, 1869 U.N.T.S. 401 [hereinafter DSU].

[34]US-Lead and Bismuth, ¶.39.

[35] Id. at ¶ 101.

[36]Appellate Body Report, European Communities – measures affecting asbestos and asbestos-containing products, WT/DS135/AB/R (12 March 2001) (hereinafter “EC-Asbestos”).

[37]Working Procedures for Appellate Review, WT/AB/WP/6 (16 August 2010) (hereinafter “working procedures”).

[38]Supra Note 36.

[39] Padideh Ala’I, Judicial lobbying at the WTO- the debate over the use of amicus curiae briefs and the U.S. experience, 24 Fordham int’l l. j. 62, 66 (2000-2001).

[40]Geert A. Zonnekeyn, The Appellate Body’s Communication on amicus curiae briefs in the Asbestos case – an Echternach Procession?, 35(3) J. World Trade  553, 557 (2001).

[41]Appellate Body Report, European Communities-Trade Description of Sardines, WT/DS231/AB/R (26 September 2002).

[42] Id.

[43]DSU Arts.10.2 & 17.4.

[44]GATT Article I.

[45]Supra Note 32.

[46] Id.

[47]Donald McRae, Trade and the Environment: Competition, Cooperation or Confusion?,41 alberta l. rev. 745, 746 (2003).

[48]Joseph Keller, The future of Amicus participation at the WTO: implications of the Sardines decision and suggestions for future development, 33 int’l j. legal info. 449, 455 (2005).

[49]Id.

[50]Contribution of the European Communities and its Member States to the Improvement of the WTO Dispute Settlement Understanding: Communication from the European Communities, TN/DS/W/1 (13 March 2002).

[51]Supra Note 5, at 63.

[52] DSU Art. 11.

[53] DSU Art. 12.

[54] DSU Art. 13.

[55] m b rao and manjula guru, wto dispute settlement and developing countries 74-77 (2004).

[56] Supra Note 4, at 210.

[57] Gabrielle Marceau & Peter N. Pedersen, Is the WTO Open and Transparent?- A Discussion ofthe Relationship of the WTO with  Non-governmental Organisations and Civil Society’s Claims for more Transparency and Public Participation, 33 j. world trade 5, 6 (1999).

[58]Claus-Dieter Ehlermmann, Reflections on the process of clarification and improvement of the DSU, in the wto dispute settlement system 1995-2003 105, 110-111 ( F. Ortino & E.U. Petersmann eds., 2004).

[59]Supra Note 4, at 206.

[60]Supra Note 8, at 102.

[61] Panel Report, United States – Sections 301-310 of the Trade Act of 1974, ¶ 7.73-7.90, WT/DS152/R (27January, 2000).

[62]Mitsuo Matsushita, The dispute settlement mechanism at the WTO: the Appellate Body- assessment and problem, in the oxford handbook on the world trade organization 529 (Amrita Narlinkar et Al. eds., 2012).

[63]m b rao and manjula guru, wto dispute settlement and developing countries 104 (2004).

[64]Simon Lester et al., world trade law: text, materials and commentary 198-201 (2010).

[65]Appellate Body Report, United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, ¶ 36, WT/DS 138/AB/R (10 May 2000).

[66] Petros C. Mavroidis, Amicus Curiae Briefs Before The WTO: Much Ado About Nothing, Jean Monnet Working Paper 2/01  available at< http://www.worldtradelaw.net/articles/mavroidisamicus.pdf>.

[67] DSU Art.13.

[68] Id. Art. 17.4.

[69] Working Procedures, Rules 21, 22, and 28.1.

[70] DSU Art. 17.10.

[71]Issues of Amicus Curiae submissions: note by the editors, 3 j. int’l econ. l. 701, 703 (2000).

[72] DSU Art. 17.6.

[73] DSU Art. 17.9.

[74] Working Procedures Rule 16(1).

[75] Id.

[76] m b rao & manjula guru, wto dispute settlement and developing countries 105-106 (2004).

[77]Issues of Amicus Curiae submissions: note by the editors, 3 j. int’l econ. l. 701, 704 (2000).

[78] Id.

[79]William J.Davey, Proposals for improving the working procedures of WTO Dispute Settlement Panels, in  the wto dispute settlement system 1995-2003, 19, 22 (f. ortino & e.u. petersmann eds., 2004).

[80] ibid.

[81]Supra Note 48 at 462.

[82]Supra Note 8, at 103.

[83] Supra Note 36.

[84]William J.Davey, Proposals for improving the working procedures of WTO Dispute Settlement Panels, in  the wto dispute settlement system 1995-2003, 19, 22 (F. Ortino & E.U. Petersmann eds., 2004).

[85]Id. at 23.

[86] Id.

[87]Report of the Appellate Body, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R,WT/DS48/AB/R (13 February 1998); Panel Report, United States – Section 110(5) of US Copyright Act,WT/DS160/R (15 June 2000).

[88] Supra Note 8, at 110.

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