Thailand Law Journal 2009 Fall Issue 2 Volume 12

II. GENERAL BACKGROUND OF AMICUS CURIAE BRIEFS

Historically, the genesis of amicus curiae mechanism was first introduced into Common Law in the fourteenth century.⁴ In the seventeenth and eighteenth centuries, the participation of amicus curiae was widely reported in All England Reports.⁵ The term ?amicus curiae briefs? is commonly known as ?friends of the court?. It refers to someone, not a party to the case, who volunteers to offer information on the issues of law or some other aspects of the case to assist the court in deciding a matter before it.⁶

The submission of amicus curiae briefs can be found in the practices and procedures of international courts and tribunals,⁷ and also in the dispute settlement proceedings of the WTO.⁸ In the International Court of Justice (ICJ),⁹ the amicus curiae briefs submissions are clearly accepted as designated in Article 34(2) of the Statute of the International Court of Justice,¹⁰ although the provision indicates that amicus curiae briefs submissions can only be made by international governmental organisations.¹¹ This might seems to argue that NGOs, as important non-party amicus curiae, are excluded. The International Tribunal for the Law of the Sea (ITLOS)¹² also provides similar provisions to those of the ICJ.¹³ Examination of amicus curiae briefs issues in the ICJ and ITLOS proceedings is beyond the scope of this article. In WTO dispute settlement proceedings, the issue of amicus curiae briefs submission is extremely controversial. It appears that the Panel and the Appellate Body may accept submissions by amicus curiae subject to consideration of due process, but they may not request them.¹⁴ This article is mainly concerned with the issue of amicus curiae briefs in the WTO dispute settlement proceedings. The provisions of the DSU of the WTO are central to the discussion of amicus curiae briefs submission under the WTO regime which is discussed below.

III. CORE PROVISION FOR AMICUS CURIAE BRIEFS IN THE WTO

DISPUTE SETTLEMENT UNDERSTANDING

The issues of amicus curiae briefs participation in the WTO dispute settlement proceedings lies in Article 13 of the DSU.¹⁵ Under Article 13 of the DSU, the provision provides that ?each panel shall have the right to seek information and technical advice from any individual or body which it deems appropriate?.¹⁶ Article 13(2) then provides that the ?panel may seek information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter?.¹⁷

In summary, it can be seen that Article 13 of the DSU makes it very clear the right of panels to seek information and advice relevant to the dispute before it. However, the provision does not mention the submission of amicus curiae briefs issue. The wording of Article 13 of the DSU is so ambiguous in the context of amicus curiae briefs issues. Specifically, the term ?seek? as designated in both paragraph 1 and 2 of the article. The term ?seek? in Article 13 reflects the idea that panels only have the initiative to request information.¹⁸ Thus, it can be argued that the submission of amicus curiae briefs cannot be made if the panels do not request them.

Another crucial issue is the interpretation of the term ?panel? in Article 13. Does it cover to all WTO adjudicating bodies (that is, a panel and the Appellate Body)? More specifically, does the Appellate Body also have the legal right to seek information? Considering Article 13, it seems merely that the provision can only apply to the panels. However, there are a number of cases of the WTO that have interpreted Article 13 to deal with the issue of amicus curiae in the proceedings. Considering such cases might be very useful for further interpretation of Article 13 of the DSU, and the discussion of amicus curiae briefs issues in the WTO proceedings.

IV THE APPROACHES OF AMICUS CURIAE BRIEFS TO

THE WTO PROCEEDINGS

Having examined the main provision of the DSU relating to amicus curiae briefs, this section considers the approaches of amicus curiae briefs to the WTO dispute settlement proceedings. Specifically, the three notable cases, namely the US-Shrimp case,¹⁹ the US-Steel case,²⁰ and the EC-Asbestos case,²¹ on the admissibility of amicus curiae briefs in the WTO are taken into account in this section.

A.The US-Shrimp Case
The genesis of amicus curiae briefs participation in the WTO dispute settlement proceedings occurred for the first time in the US-Shrimp case.²² In this case, two environmental organisations submitted briefs to the Panel, although the Panel refused to accept such briefs on the ground that it had not requested them. However, the Panel noted that if any party could put forward all or part of these briefs as part of its own submission, the Panel would then be willing to accept them.²³

Crucially, the term ?seek? as designated in Article 13 of the DSU has been expressed in the Panel proceedings. More specifically, the Panel argued that the initiative of when and how to see information under Article 13 of the DSU rests with panels, accepting non-requested information from non-member source would not be compatible with the provisions of the DSU.²⁴ The Appellate Body did not agree with the Panel?s decision. They claimed that:

The Panel?s reading of the word ?seek? is unnecessarily formal and technical in nature becomes clear should an ?individual or body? first ask a panel for permission to file a statement or a brief. In such an event, a panel may decline to grant leave requested. If, in the exercise of sound discretion in a particular case, a panel concludes inter alia that it could do so without ?unduly delaying the panel process?, it could grant permission to file a statement or a brief, subject to such conditions as it deems appropriate. The exercise of the panel?s discretion could, of course, and perhaps should, include consultation with the parties to the dispute. In this kind of situation, for all practical and pertinent purposes, the discretion between ?requested? and ?non-requested? information vanishes.²⁵

This article is published with the kind permission of Pawarit Lertdhamtewe. The Analysis of ?Amicus Curiae Briefs? in the WTO Dispute Settlement Proceedings? was prepared and completed for the Advanced Legal Research Project offered through the University of Sydney, Australia.