Thailand Law Journal 2009 Fall Issue 2 Volume 12

THE ANALYSIS OF ?AMICUS CURIAE BRIEFS? IN THE WTO DISPUTE SETTLEMENT PROCEEDINGS

By Pawarit Lertdhamtewe¹

ABSTRACT

The effectiveness enforcement mechanism of the General Agreement on Tariffs and Trade (GATT) was subsequently succeeded by the World Trade Organization (WTO). The WTO dramatically expands and improves rules and procedures for settling the dispute among its Members which are contained in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).

One of the more interesting aspects of the new rules and procedures for settling disputes under the DSU/WTO is the focus on the issues of amicus briefs submitted to the Panel and Appellate Body in WTO dispute settlement proceedings. The amicus curiae briefs specifically enables the Panel and Appellate Body to decide matter appropriately. How far amicus curiae briefs can participate in the WTO proceedings, however, remains questionable. As the Appellate Body has observed neither the DSU nor the Working Procedures specifically address this issue.

The aim of this article is to identify and illustrate to what extent has the DSU/WTO adopt its clear, coherent, and workable rules for the acceptance of amicus curiae briefs in the WTO dispute settlement proceedings.

1. INTRODUCTION

The World Trade Organization (WTO)¹ was one of the key achievements of the eighth round of the General Agreement on Tariffs and Trade (GATT)² negotiations. Entering into force 1 of January 1995, the WTO brought about improvements not only to the substantial rules of trade regulation, but also to the dispute settlement system. Under the auspices of WTO, the new dispute settlement rules, as established by the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU),³ creates a number of contentious among WTO members.

One of the more controversial and contentious issues among WTO members with respect to WTO dispute settlement is the issues of amicus curiae briefs submitted to the panel or the Appellate Body by Non-Governmental Organisations (NGOs) or other entities that are not a party or third party to the dispute. Specifically, the amicus curiae submissions enable those players to provide information on different aspects of the dispute to enable the panel or the Appellate Body in proceedings to decide the matter appropriately. However, the question of the admissibility of amicus curiae briefs in the WTO proceedings is highly unclear. As the Appellate Body has observed neither the DSU nor the Working Procedures specifically address this issue.

A. Purpose and Scope of Study
This article considers the issues of amicus curiae submissions in the WTO dispute settlement proceedings. It also examines the rules and procedures of WTO/DSU which are relevant for the examination of the amicus curiae briefs participation under the WTO regime. The main objective of this article is to identify and illustrate how can the amicus curiae briefs approaches to the panel and the Appellate Body at the WTO proceedings. In essence, the article seeks to examine whether the WTO adopts its clear, coherent, and workable rules and procedures for the admission of amicus curiae briefs in its proceedings.

B. Structure of this Article
In response to this question, the article proceeds by way of six steps which correspond with the paper?s six main sections as follows. The following section, Section II begins with providing the general background of amicus curiae briefs in order to make clear what the ?amicus curiae briefs? in fact means. Then, Section III briefly examines the main provision of the WTO/DSU relating to the amicus curiae briefs issues. In the next section, Section IV considers the approaches of amicus curiae briefs to the WTO dispute settlement proceedings. The three notable cases: the US-Shrimp case, the US-Steel case, and the EC-Asbestos case, of the WTO are specifically taken into consideration in this section. Afterward, Section five discusses the issues of amicus curiae briefs under the WTO dispute settlement regime. Finally, conclusion and some suggestions for improvement are placed on Section VI of this article.

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.