Thailand Law Journal 2009 Fall Issue 2 Volume 12

VI. CONCLUSION AND RECOMMENDATIONS

The WTO has established a new dispute settlement rules that are contained in the DSU. Under these rules, the DSU raises a number of controversial issues. Among them are the issues of amicus curiae briefs submissions in the WTO dispute settlement proceedings which become highly contentious among its members.

The amicus curiae submissions enable entities that are not a party or third party to the dispute, to provide information on specific issues on some other aspects of the dispute to assist the Panel or the Appellate Body in deciding the matter before it. The question of whether the panel or the Appellate Body can accept and consider the amicus curiae briefs in the proceedings seems very unclear.

Overall, the issues of amicus curiae briefs first arose in the US-Shrimp case which seems to open the door for amicus curiae. In this case, it is likely that the panel has the right under Article 13 of the DSU to accept and consider or to reject amicus curiae briefs in its proceedings. Although the US-Shrimp case cited Article 13 as the legal basis for allowing amicus curiae briefs in the panel proceedings, it appears that Article 13 of the DSU does not apply to the Appellate Body. It was the US-Steel case and the EC-Asbestos case that made clear the legal authority of the Appellate Body to accept amicus curiae submissions by adopting additional procedures under Rule 16(1) of the Working Procedures.

In summary, it can be said that through a number of series of cases, the Panel and the Appellate Body have adopted a rich body of jurisprudence on the acceptance of amicus curiae briefs in the WTO dispute settlement proceedings, which consists of the following rules. First, Article 13 of the DSU grants the Panel the legal right to accept and consider or to reject amicus curiae briefs. Secondly, the Appellate Body also has the legal right to accept and consider such briefs under Article 17(9) of the DSU, and in some cases on Rules 16(1) of the Working Procedures, although these rules also contain some loopholes.

In conclusion, it is recommended that the Appellate Body needs to provide more clarification on its legal basis for accepting amicus curiae briefs. Specifically, the Rule 16(1) of the Working Procedures should be more procedural rather than substantive in this context. It should be noted that whether how the amicus curiae briefs will be considered in the Panel or the Appellate Body proceedings, it is also recommended that there is a need to research on the benefits from accepting amicus curiae briefs into the system.

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.