Thailand Law Journal 2009 Fall Issue 2 Volume 12

More importantly, the Appellate Body argued that the interpretation of the term ?seek? made by the Panel is too narrow.²⁶ In their statement, the Appellate Body argued that the authority to seek information is not properly equated with a prohibition on accepting information which has been submitted without having been requested by a panel. A panel has the discretionary authority either to accept and consider or to reject information and advice submitted to it, whether requested by a panel or not.²⁷ In the light of the Appellate Body, it leads clearly and convincingly to the conclusion that the WTO proceedings seem to open the door to amicus curiae briefs.

B. The US-Steel Case
The issue of amicus curiae briefs returned in the US-Steel case.²⁸ In the proceedings, the Panel stated that it had authority to accept amicus curiae briefs, but it declined to do so because it was submitted after the deadline for submissions in the proceedings.²⁹ It is clearly that panels under Article 13 of the DSU can accept amicus curiae briefs.

The most crucial part of this case lies in the appellate proceedings when the Appellate Body dealt with the issue in the context of Article 13 of the DSU. The story runs as follows. When the United States appealed on the merits, two non-parties submitted briefs with the Appellate Body. The European Communities then challenged that amicus curiae briefs are inadmissible in the appellate proceedings. The EC argued that Article 13 of the DSU can only applied to panels, and is limited to factual information and technical advice, not legal arguments.³⁰ In response to the EC, the Appellate Body first emphasised that individuals and organisations have no legal right to file briefs, and that the Appellate Body has no obligation to consider them, which declared that:

Individuals and organizations, which are not Members of the WTO, have no legal right to make submissions to or be heard by the Appellate Body. The Appellate Body has no legal duty to accept or consider unsolicited amicus curiae briefs submitted by individuals or organizations, not Members of the WTO. The Appellate Body has a legal duty to accept and consider only submissions from WTO Members which are parties or third parties in a particular dispute.³¹

Having rules that individuals or organisations have no legal rights to be heard, the Appellate Body then extended the term ?panels? of Article 13 of the DSU to encompass the Appellate Body by stating that ?we have the legal authority under the DSU to accept and consider amicus curiae briefs in an appeal in which we find it pertinent and useful to do so?.³² However, the Appellate Body did not consider those two submissions, as found unnecessary to consider them.³³

In summary, the Appellate Body statement seems to suggest the answer to the question of whether the Appellate Body could accept and consider unsolicited amicus curiae briefs. However, it appears that the Appellate Body did not explain whether there is any legal basis on which the Appellate Body can consider amicus curiae submission.

C. The EC-Asbestos Case
It should be noted that the amicus curiae briefs issues are clearly accepted in the EC-Asbestos case.³⁴ In the EC-Asbestos case, the Panel received five amicus curiae briefs, four from NGOs. The defendant, which is the EC, incorporated two of them by reference, and they were accepted by the Panel.³⁵ A fifth brief, ?submitted at a stage in the procedure when it could no longer be taken into account, was not accepted?.³⁶ The Panel transmitted the fifth submission to the parties for their information along with its decision not to accept it, and also informed them that the same decision would apply to any submissions received from NGOs subsequently.³⁷

The question of whether the Appellate Body may accept and consider unsolicited amicus curiae briefs is clearly defined in the EC-Asbestos case when the Appellate Body decided, for the first time, to invite briefs from all interest sources. After consultations with the parties and third parties to the dispute, citing Rule 16(1) of the Working Procedures for Appellate Review, the Appellate Body proposed an additional procedure to deal with the anticipated submissions.³⁸ Consider Article 16(1) might be very useful for further understanding. Article 16(1) states that:

In the interest of fairness and orderly procedure in the conduct of an appeal, where a procedural question arises that is not covered by these Rules, a Division may adopt an appropriate procedure for the purpose of that appeal only provided that it is not inconsistent with the DSU, the other covered agreement and these Rules.³⁹

Under this additional procedure, adopted for the purpose of the EC-Asbestos appeals only, persons other than the parties and third parties wishing to file a written submission were required to apply for leave to file a submission.⁴⁰ The Additional Procedure set forth criteria that such as application should meet. The Additional Procedure also set out the criteria that written submissions for which leave to file was granted should meet.

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.