Written by: Goh Teng Jun Gerome
An amicus curiae means a “friend of the court” who, though not a party to a lawsuit, provides the court with information or a brief because of his strong interest in the dispute. Since the Appellate Body (“AB”) of the World Trade Organisation (“WTO”) decided that panels may accept amicus curiae briefs in 1998, there has been extensive debate over this issue for 20 years. One of the chief criticisms from Member states of this decision is that allowing non-state actors to access the Dispute Settlement Mechanism (“DSM”) would undermine the “Member-driven” nature of the WTO. Notwithstanding such criticisms, the AB has weathered the storms and continually affirmed the power of the WTO adjudicatory bodies to accept amicus briefs. Ironically, despite this steadfast position, they have displayed great reluctance to actually utilise amicus briefs. This seems to be an uneasy compromise to avoid potential political costs in reaction to the explicit protests from Members.
Contrary to commentators that commend the AB for its management of the status quo, this paper argues against this uneasy compromise. First, it explores the normative reasons in favour of the acceptance of the amicus briefs. Second, it evaluates how the current treatment of amicus briefs is unsatisfactory. Third, it offers suggestions to improve the acceptance of amicus briefs in order to reap their potential benefits. Finally, this paper concludes with a vision for the future of amicus briefs in the WTO.
Article 13 of the Dispute Settlement Understanding (“DSU”) is often raised as the source of the panel’s power to accept and consider amicus briefs. As for the AB, this power stems from either Article 17.9 of the DSU or Article 16.1 of the Working Procedures. However, the legal basis of the rulings have remained controversial because of the creative interpretations of the provisions said to be the source of this power. Regardless of the legal basis, this paper opines that the AB’s insistence on the desirability of amicus briefs can ultimately be justified by normative reasons such as:
(a) assisting the WTO adjudicatory bodies by contributing to the clarification of WTO law;
(b) improving the “democratic deficit” by allowing access to parties’ affected by WTO rulings; and
(c) providing valuable technical expertise.
A. Contribution to clarification of WTO law
The role of the WTO adjudicatory bodies in clarifying the law under Article 3.2 of the DSU justifies the need to accept amicus contributions. Apart from its purpose in settling disputes between Members, their broader institutional role of clarifying legal interpretations of WTO law serve as important signalling mechanisms for Member’s actions in international trade and disputes. Access to the most complete available information in making decisions would be beneficial to the development of WTO jurisprudence. Even public international law is beginning to recognise the importance of alternative sources of information such as the contributions of non-governmental organisations (“NGO”) in shaping international treaties.
Furthermore, the WTO’s role as a key player in global governance for international trade law includes responsibilities to consider the interest of the citizens of the world. Amicus briefs which advocate for the public interest could also be submitted by other civil actors like academics, who broaden the knowledge on which decisions are made. Especially in appellate review, more sources of information that reflect broader considerations of the law can improve the quality of decisions. As such, the member-driven nature of the WTO should not preclude the legitimate aim of the adjudicatory bodies to clarify WTO law.
“Democratic deficit” is a criticism that the WTO fails to allow access to the parties whose interests are affected by its rulings. Since the negotiations during the Uruguay round, civil society actors have advocated the establishment of a “participatory democracy” which would increase the legitimacy of the system. Essentially, amicus briefs allow the input of voices that would otherwise likely have remained unheard, and address this problem of “democratic deficit”.
For one, NGOs may face practical difficulties in having their interest considered by the WTO adjudicatory bodies when their interests conflict with the government’s goals. However, as seen in EC – Sardines, a UK-based NGO was able to advance its position against its home country through the use of an amicus brief. This demonstrates a desirable engagement in supranational governance emphasising the consumer’s interests instead of a particular Member state’s interest.
Second, many WTO disputes affect individual economic actors. Allowing amicus briefs accords with the aim of protecting individual economic actors as encompassed in Article 3.2 of the DSU. For instance, the Hormones dispute between the US and EC affected individual economic actors because it concerned the removal of a trade barrier against hormone treated beef. Had the ban on hormone treated beef been lifted, individual European consumers would have faced possible health risks. If such interests are left only in the hands of governments which may prioritise trade interests and economic growth over health concerns, this could be potentially detrimental to individuals. Thus, it is desirable that individual economic actors have the ability to ventilate their concerns through amicus briefs before the WTO DSM.
Finally, allowing amicus briefs improves the transparency of the WTO DSM by allowing the marketplace of ideas to influence decisions that would ultimately impact the wider public. This accords with the judicial nature of the WTO DSM that emphasises natural justice and necessitates the inclusion of voices affected by the decision.
As such, the acceptance of amicus briefs is desirable in response to the critique of the “democratic deficit” and to bolster the legitimacy of the WTO.
Third, amicus submissions can provide valuable expertise which may assist in the quality of dispute resolution. Decisions of the WTO adjudicatory bodies may require knowledge on technical issues such as intellectual property rights, sanitary and phyto-sanitary standards, or complex scientific issues in the areas of health protection and the environment. However, panellists do not always have the requisite knowledge in these specialised fields. Allowing amicus submissions would be consistent with the aim of Article 13 of the DSU, which provides for the panel’s ability to seek information or consult expert review groups in making their decision. Even if the panellists are competent to decide such issues without external aid, this does not detract from the valuable benefits of amicus briefs. Amicus briefs could bring a specific set of experience or skill set with resources and creativity to assist the adjudicatory bodies of the WTO. Consequently, amicus briefs could assist the adjudicatory bodies’ technical understanding of the dispute, which benefits the dispute resolution and future jurisprudence relied on by industry players.
Despite the normative desirability of amicus briefs, the current treatment of amicus briefs is disheartening. This section explores the low utilisation rate of amicus briefs by considering the political context, requirements for amicus briefs to be considered and the resulting concerns from the current state of affairs.
The incredibly low utilisation rate of 18.5% of 98 amicus submissions shows the WTO adjudicatory bodies’ reluctance to meaningfully utilise amicus briefs. As can be seen from Table 1 below, the WTO adjudicatory bodies have subtly declined to consider amicus briefs due to timing or the lack of necessity or without giving any reasons at all. Even discounting the possibility that some of the amicus briefs may be based on irrelevant information or repeat information of the parties’ arguments, it is extremely rare for amicus briefs to be considered by the adjudicatory bodies.
Table 1: Treatment of amicus submissions from 1998 to end 2014
The current treatment of amicus briefs must be seen in its unique political context. Arguably, the Abestos fiasco (as termed by Professor Robert Howse) is the clearest demonstration of the political tension the WTO faces in deciding whether to utilise amicus briefs. In 2000, the Abestos case was expected to receive many amicus briefs because of the grave health effects of exposure to asbestos. Accordingly, the AB introduced a Special Protocol to establish strict time-frames and other procedural requirements for each amicus application. This, however, provoked considerable backlash from the Members. A WTO General Council Special Session was held where Members articulated serious opposition to the AB exceeding its authority in its establishment of the Special Protocol. The Chair of the General Council even expressed the need for the AB to “exercise extreme caution in future cases until Members had considered what rules were needed”. In that case, the AB rejected all submissions because the formal requirements were not complied with. This created the perception that the AB had caved to the political pressure exerted by the Members. Regrettably, the WTO DSM is not immune from political constraints. The appointment of members of the AB is politicised because powerful Members can veto certain candidates. Furthermore, the WTO adjudicatory bodies need to encourage compliance with their decisions, prevent “court curbing” and maintain the AB’s institutional legitimacy. As such, even though the AB does not yield to political pressure from Members, it may have to take certain strategic decisions to protect themselves from political backlash.
Since then, the AB has weathered the storm by re-affirming its power to accept amicus briefs even from WTO Members in the EC – Sardines case. It has also refused to respond to the criticism by the Members in the Special Session, sending a strong signal regarding its judicial independence. By now, it is trite that the WTO adjudicatory bodies do have the discretion to accept and consider amicus briefs. However, the political context remains an implicit reminder that the utilisation of amicus briefs is frowned upon by many Members. Therefore, the low utilisation rate seems to be an uneasy compromise between maintaining the WTO adjudicatory bodies’ discretion to accept amicus briefs and managing the Member’s political concerns.
The low utilisation of amicus briefs shows that amicus briefs only have “conditional access” to the WTO DSM. In order for amicus briefs to be considered, there seems to be two requirements.
First, it is necessary for one of the parties to the dispute to endorse the entire amicus brief. Panels have frequently considered amicus briefs that have been appended to a party’s submissions. The panel in EC – Salmon explicitly expressed the view that it would only consider the amicus submissions “to the extent that parties decided to adopt” those views. Where the amicus brief was only partially agreed upon by the US, the panel in US – EC Products refused to take it into account. This practice seems calculated to allow the WTO adjudicatory bodies to “shield” themselves behind the position of the disputing parties. However, this is unsatisfactory because it is rare for a disputing party to agree with a third-party amicus brief in its entirety. Consequently, the valuable expertise or public interest of such briefs are often overlooked.
Secondly, the briefs must be received in a timely manner and relate to factual determinations. Late submissions of amicus briefs are consistently rejected. Practically, this concern is justified because the lack of time for parties to respond to points in the brief will raise serious due process issues. Hence, the adjudicatory bodies often invite the parties to respond and express their views on the briefs in order to prevent undue advantages to any particular party. However, it is inherently disadvantageous towards amici curiae because timetables of proceedings are usually kept confidential. Unless there is greater access to dispute timetables, this remains a difficulty. Furthermore, amicus briefs are consistently utilised for only factual determinations as opposed to legal ones. Accordingly, there is little contribution to the clarification of WTO jurisprudence. Potential amici may be deterred from making the financial investment to submit briefs since the lack of defined rules makes their chances of being heard uncertain. Taken together, such limitations severely limit the benefits of amicus briefs in contributing to WTO jurisprudence.
This uneasy compromise is an unsatisfactory halfway house because the low utilisation of the amicus briefs renders many of its potential benefits nugatory. Yet, it does not assuage the main concerns of the Members which are the possible prejudice to developing countries and the potential abuse of amicus briefs.
One central concern is the additional burden placed on developing countries to respond to the briefs and the possibility of a widening gap between the influence of developed and developing countries. This concern arises from the perception that most affluent NGOs and think tanks likely to make amicus submissions originate from Western countries and are likely to represent Western interests.
Furthermore, amicus briefs could potentially be used as a litigation strategy by developed countries to further tax the limited resources of developing countries. This would arguably have a disproportionate impact on Least Developed Countries whose limited resources may render it unable to respond properly to a large number of amicus briefs.
These concerns may have merit in light of the large concentration of amicus submissions by civil actors in North America and Europe, as seen in Table 2. In fact, 75.5% of those submissions come from high-income countries with a high level of development.
Table 2: Breakdown of 99 amicus submissions by region between 1996 and 2014
However, these numbers do not necessarily equate to prejudice against developing countries. The US and EU extensively use the WTO DSM and most of the disputes that have attracted large numbers of amicus briefs involve either the US or EU. Also, amicus briefs are merely one of the tools available to developed countries because these players have the resources, political power and influence to directly influence the Geneva community. Given the uncertainty of submissions being considered, it is unlikely that powerful developed countries would use it as a weapon against developing countries.
NGOs from developed countries also advocate for global issues which benefit the citizens of developing countries. NGOs from developed countries and developing countries have collaborated to submit joint amicus briefs particularly in intellectual property and medicine issues. In time, such interactions during the submissions of joint briefs could encourage NGOs from developing countries to actively submit independent amicus  Additionally, the fact that a “developing country WTO Member”, Morocco, participated in the EC – Sardines case utilising an amicus brief submission as opposed to the formal third-party participation procedure demonstrates that the amicus brief submission is a more convenient and cost-effective means of participation for developing Member states. As such, far from “protecting” developing Member states, the low utilisation of amicus briefs may in fact harm them.
Another main concern is the possible abuse of amicus NGOs may not necessarily advocate for the public interest but seek to advance their own one-sided interests against a particular state’s policies. Such civil actors could be masking lobbying forces, advancing hidden political standpoints or simply bidding to gain publicity. Further, commercial actors account for over 42% of the 99 submissions across 44 disputes between 1996 and 2014. This hints at the prevalence of commercial interests instead of public interest being advanced through amicus briefs. Therefore, the expected benefits from amicus briefs to clarify WTO law or advocate for public interest are seldom seen. With the inclusion of WTO Members as potential amici, Members may even utilise “ambush style tactics” by withholding significant legal arguments until late in the proceedings. It is also significantly easier for WTO Members to intervene in disputes since the stringent requirements of third-party intervention need not be satisfied. Despite such concerns, amicus briefs should not be discarded entirely but instead protected through the use of clearly defined mechanisms.
This paper suggests that a comprehensive set of rules to alleviate the concerns raised by developing countries and guard against the potential abuse of amicus briefs discussed above. These improvements must include both substantive and procedural requirements since both play an equally crucial role to safeguard the process. Within the WTO DSM, procedures to regulate the acceptance of amicus briefs could be developed by Members, panels or the AB. Although Members may make an amendment to the DSU under Art X:8 of the Marrakesh Agreement, the inertia of WTO negotiations make such a scenario extremely unlikely. Panels may create specific working procedures under Article 12.1 of the DSU provided parties are consulted. The AB may also develop procedures on an ad hoc basis under Article 16(1) of the Working Procedures. However, it must be noted that any such procedures cannot “add to or diminish the rights and obligations” of Members pursuant to Article 3.2 of the DSU.
There must be the development of clear substantive requirements articulated to determine when amicus briefs should be given due consideration. As suggested by the European Communities, amicus briefs should:
(a) be directly relevant to the factual and legal issues of the dispute;
(b) include the direct interest the applicant has in the dispute; and
(c) the reasons why the brief would contribute to the resolution of the dispute.
The proposed requirement for direct relevance to the dispute seeks to prevent the abuse of civil actors merely wishing to obtain publicity without contributing to the resolution of the dispute. It requires amicus to identify exactly why its contribution to either the factual circumstances regarding the dispute or the legal arguments will help the adjudicatory bodies. The brief must also contain a declaration of the applicant’s legal status, objectives, activities and funding. This would compel applicants to reveal the true nature of their asserted interest and prevent abuse by Members or commercial actors for illegitimate purposes. Disputing parties will not be able to abuse the process by arranging for other entities to bombard the adjudicating body with multiple amicus briefs. Such knowledge would ensure that the adjudicatory bodies have the necessary context in which weight should be assigned to particular arguments.
Additionally, the WTO adjudicatory bodies should also assess the potential contributions of the briefs with regard to the objectives of the WTO such as sustainable development, the need for positive efforts to help developing countries and the aim of improving the standards of living. This would assist the development of WTO jurisprudence by taking into account broader perspectives. Furthermore, the substantive requirements guide potential amici to prepare their briefs with the intention to contribution to the decision-making.
There should also be practical procedural requirements for amicus briefs. For instance, the timing of submissions, length and format should be clearly prescribed. In order to prevent due process concerns, commentators Gabrielle Marceau and Matthew Stilwell suggested that briefs should be submitted within 10 weeks from the composition of the panel. This would eradicate the current practice of arbitrarily refusing to accept amicus briefs on the basis of the lack of time for parties to respond. Defining the length and format of amicus briefs to include an executive summary of the relevant substantive requirements above, the resources needed by developing countries or the adjudicatory bodies to manage such submissions would be reduced. As such, this would allow a more cost-effective way of managing amicus submissions.
In any case, the last layer of defence against abuses of the amicus process is judicial caution. In deciding whether to admit particular amicus briefs, potential considerations such as corporate interests, fairness to developing countries with a lack of resources and unfair litigation tactics should be given thorough consideration. Where it is necessary to reject amicus submissions, the WTO adjudicatory bodies should explain their decision with reference to the substantive and procedural requirements. With these precautions, there would be no need for the WTO adjudicatory bodies to exhibit reluctance in considering amicus Instead, the rules should seek to encourage relevant and useful contributions from amicus curiae to WTO jurisprudence.
In a nutshell, the WTO adjudicatory bodies have had a tumultuous relationship with amicus curiae In managing the political pressures surrounding an international trade organisation, it has settled into an uneasy compromise by allowing amicus briefs but seldom meaningfully using them. After 21 years, the time has come for the WTO adjudicatory bodies to address the current unsatisfactory treatment of amicus briefs. In view of the normative reasons for the acceptance of amicus briefs, the low utilisation rate of amicus briefs does not stand up to scrutiny. The displeasure of the Members should no longer serve as back door motivations to reject amicus briefs. Instead, the WTO DSM needs to confront the challenge by creating clearly defined supporting structures to assuage Member’s concerns and encourage meaningful contributions from amici. Instead of treating the “friends of the court” with suspicion, the WTO should welcome these friends with open arms albeit with the caveat that its house rules must be obeyed.
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Written by Goh Teng Jun Gerome, 4th Year LL.B. student at Singapore Management University’s School of Law. Edited by Tan Shu Min, Emily, 4th Year LL.B. student.
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