Thailand Law Journal 2009 Fall Issue 2 Volume 12

Pursuant to the Additional Procedure, the Appellate Body received 17 applications requesting leave to submit a written brief in this appeal. Eleven of them were received within the time limits specified in the Additional Procedure. The Appellate Body carefully reviewed and considered each of these applications in accordance with the Additional Procedure and, in each case, decided to decline leave to file a written brief.⁴¹ Hence, it can be seen that the Additional Procedure laid out a series of procedural requirements for amicus curiae.⁴²

V. THE ANALYSIS OF AMICUS CURIAE BRIEFS

UNDER THE WTO REGIME

Having examined the DSU provision and cases of the WTO relating to the amicus curiae briefs issues, this section discusses the amicus curiae briefs under the WTO regime. In particular, the paper seeks to examine whether the WTO adopts clear, coherent, and workable rules for the amicus curiae briefs in the WTO proceedings. This can be examined by considering how the amicus curiae briefs are considered in the Panel and the Appellate Body proceedings as follows.

A.The Amicus Curiae Briefs in Panel Proceedings
Article 13 of the DSU is the basis for allowing amicus curiae briefs in the Panel proceeding. It could be said that the provision provides in general terms for the Panel to seek information and technical advice from any sources which it deems appropriate.⁴³ This can also be stated that the provision seems to accord substantial discretionary powers on the Panel to accept and consider information even from non-requested amicus curiae sources.

As already discussed in the US-Shrimp case,⁴⁴ it appears that the Panel has the right, under Article 13 of the DSU, to accept amicus curiae briefs. It could be said that Article 13 of the DSU are developed through the US-Shrimp case. In this case, the Panel held that amicus curiae briefs submissions from two environmental organisations, provided scientific and technical advice relevant to the dispute, cannot be accepted because of the Panel did not seek such information in terms of Article of the DSU.⁴⁵ However, the Appellate Body read Article 13 in a different way. The Appellate Body ruled that the Panel?s reading of the word ?seek? was unnecessarily formal and technical. The authority to seek information is not a prohibition against accepting non-requested information, but rather grants a panel the discretion either to accept and consider or to reject information and advice submitted to it, whether requested by a panel or not.⁴⁶ From this interpretation, it is recognised the role of amicus curiae briefs in the panel proceeding.

In summary, it could be argued that the WTO has established very fair and clear legal basis for the authority of the Panel to deal with the amicus curiae briefs issues in its proceedings. It could also be argued that the legal basis for the acceptance of amicus curiae briefs in the panel proceedings is well clarified, and seems very consistency and practical in its proceedings. Following the US-Shrimp case, the amicus curiae submissions are warmly welcomed in several cases in the panel proceedings ? for example, in the US-Steel case,⁴⁷ the EC-Asbestos case,⁴⁸ and other cases.⁴⁹

This is, of course, is the Panel proceeding. What of the Appellate Body proceeding? Therefore, the following part will move to examine the issue of amicus curiae briefs in the Appellate Body proceeding.

B. The Amicus Curiae Briefs in Appellate Body Proceedings
The question of whether the WTO has established rich body of jurisprudence on the admissibility of amicus curiae briefs in the Appellate Body proceedings can be best explained as follows.

In the US-Steel case, the Appellate Body explained its legal authority for the first time to accept amicus curiae submissions. The Appellate Body found that neither the DSU nor the Working Procedures explicitly prohibits the acceptance or consideration of such submissions. However, Article 17(9) of the DSU read with Rule 16(1) of the Working Procedures empowered the Appellate Body to adopt procedural rules which do not conflict with any rules and procedures in the DSU or the covered agreements, only for the purposes of the appeal under consideration. From this interpretation, the Appellate Body derived its legal authority to accept and consider or reject amicus curiae submissions.⁵⁰ Then, in the EC-Asbestos case, the Appellate Body, thus, adopted additional procedures under Rule 16(1) of the Working Procedures, which stated that all entities that wished to submit information to the Appellate Body should apply for leave to submit such information.⁵¹

In summary, it appears that the Appellate Body also has authority to accept and consider or reject amicus curiae briefs. The legal basis for this authority, however, is unclear, relying in some cases on Article 17.9 of the DSU⁵² and in other cases on Rule 16.1 of the Working Procedures.⁵³ It should be noted however, that these rules and procedures have their own problems. Article 17(9) of the DSU requires the Appellate Body to consult with the Chairman of the DSB and the Director-General before drawing up working procedures, and to communicate these new rules and procedures to the Members, but in the US-Steel case, the Appellate Body did not fulfill either requirement. Moreover, Rule 16(1) of the Working Procedures does not require similar consultation, but are placed on a series of conditions creating new procedures. The issue should be procedural rather than substantive. It also appears that any procedure adopted pursuant to Rule 16(1) in the Working Procedures is applicable to that particular appeal only.

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.