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A.2.1 Briefs submitted by NGOs
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A.2.1.1 US — Shrimp,
para. 89
(WT/DS58/AB/R)
We consider that the attaching of a brief or other
material to the submission of either appellant or appellee, no matter
how or where such material may have originated, renders that material at
least prima facie an integral part of that participant’s
submission. On the one hand, it is of course for a participant in an
appeal to determine for itself what to include in its submission. On the
other hand, a participant filing a submission is properly regarded as
assuming responsibility for the contents of that submission, including
any annexes or other attachments.
A.2.1.2 US — Shrimp,
para. 101
(WT/DS58/AB/R)
… access to the dispute settlement process of the
WTO is limited to Members of the WTO. This access is not available,
under the WTO Agreement and the covered agreements as they
currently exist, to individuals or international organizations, whether
governmental or non-governmental. Only Members may become parties to a
dispute of which a panel may be seized, and only Members “having a
substantial interest in a matter before a panel” may become third
parties in the proceedings before that panel. Thus, under the DSU, only
Members who are parties to a dispute, or who have notified their
interest in becoming third parties in such a dispute to the DSB, have a legal
right to make submissions to, and have a legal right to have
those submissions considered by, a panel. Correlatively, a panel is obliged
in law to accept and give due consideration only to submissions made by
the parties and the third parties in a panel proceeding. …
A.2.1.3 US — Shrimp, para. 104
(WT/DS58/AB/R)
The comprehensive nature of the authority of a panel
to “seek” information and technical advice from “any individual or
body” it may consider appropriate, or from “any relevant source”,
should be underscored. This authority embraces more than merely the
choice and evaluation of the source of the information or advice
which it may seek. A panel’s authority includes the authority to
decide not to seek such information or advice at all. We consider
that a panel also has the authority to accept or reject any
information or advice which it may have sought and received, or to make
some other appropriate disposition thereof. It is particularly
within the province and the authority of a panel to determine the
need for information and advice in a specific case, to
ascertain the acceptability and relevancy of information
or advice received, and to decide what weight to ascribe to that
information or advice or to conclude that no weight at all should be
given to what has been received.
A.2.1.4 US — Shrimp, para. 107
(WT/DS58/AB/R)
… If, in the exercise of its 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…
A.2.1.5 US — Shrimp,
paras. 108-109
(WT/DS58/AB/R)
… 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. The fact that a panel may motu proprio
have initiated the request for information does not, by itself, bind the
panel to accept and consider the information which is actually
submitted. The amplitude of the authority vested in panels to shape the
processes of fact-finding and legal interpretation makes clear that a
panel will not be deluged, as it were, with non-requested
material, unless that panel allows itself to be so deluged.
Moreover, acceptance and rejection of the information
and advice of the kind here submitted to the Panel need not exhaust the
universe of possible appropriate dispositions thereof. …
A.2.1.6 US — Shrimp,
para. 110
(WT/DS58/AB/R)
… we consider that the Panel acted within the scope
of its authority under Articles 12 and 13 of the DSU in allowing any
party to the dispute to attach the briefs by non-governmental
organizations, or any portion thereof, to its own submissions.
A.2.1.7 US — Lead and Bismuth II, para. 39
(WT/DS138/AB/R)
In considering this matter, we first note that
nothing in the DSU or the Working Procedures specifically
provides that the Appellate Body may accept and consider submissions or
briefs from sources other than the participants and third participants
in an appeal. On the other hand, neither the DSU nor the Working
Procedures explicitly prohibit acceptance or consideration of such
briefs. However, Article 17.9 of the DSU provides:
Working procedures shall be drawn up by the Appellate Body in
consultation with the Chairman of the DSB and the Director-General, and
communicated to the Members for their information.
This provision makes clear that the Appellate Body
has broad authority to adopt procedural rules which do not conflict with
any rules and procedures in the DSU or the covered agreements.
Therefore, we are of the opinion that as long as we act consistently
with the provisions of the DSU and the covered agreements, we have the
legal authority to decide whether or not to accept and consider any
information that we believe is pertinent and useful in an appeal.
A.2.1.8 US — Lead and Bismuth II,
para. 40
(WT/DS138/AB/R)
We wish to emphasize that in the dispute settlement
system of the WTO, the DSU envisages participation in panel or
Appellate Body proceedings, as a matter of legal right, only by
parties and third parties to a dispute. And, under the DSU, only
Members of the WTO have a legal right to participate as parties or third
parties in a particular dispute. …
A.2.1.9 US — Lead and Bismuth II, para. 41
(WT/DS138/AB/R)
Individuals and organizations, which are not Members
of the WTO, have no legal right to make submissions to or to 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.
A.2.1.10 US — Lead and Bismuth II,
para. 42
(WT/DS138/AB/R)
We are of the opinion 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.
In this appeal, we have not found it necessary to take the two amicus
curiae briefs filed into account in rendering our decision.
A.2.1.11 US — Shrimp (Article 21.5
— Malaysia),
para. 76
(WT/DS58/AB/RW)
As we have previously stated in our Report in United
States — Import Prohibition of Certain Shrimp and Shrimp Products (“United
States — Shrimp”), attaching a brief or other material to the
submission of either an appellant or an appellee, no matter how or where
such material may have originated, renders that material at least prima
facie an integral part of that participant’s submission. In that
Report, we stated further that it is for a participant in an appeal to
determine for itself what to include in its submission.
A.2.1.12 EC — Sardines,
para. 160
(WT/DS231/AB/R)
… Accordingly, we believe that the objections of
Peru with regard to the amicus curiae brief submitted by a
private individual are unfounded. We find that we have the authority to
accept the brief filed by a private individual, and to consider it. We
also find that the brief submitted by a private individual does not
assist us in this appeal.
A.2.1.13 US — Softwood Lumber IV,
para. 9 and footnotes 21-22
(WT/DS257/AB/R)
The Appellate Body received two amicus curiae
briefs during the course of these proceedings. The first, dated 21
October 2003, was received from the Indigenous Network on Economies and
Trade (based in Vancouver, British Columbia, Canada).21
The second,
dated 7 November 2003, was a joint brief filed by Defenders of Wildlife
(based in Washington, D.C., United States), Natural Resources Defense
Council (based in Washington, D.C., United States) and Northwest
Ecosystem Alliance (based in Bellingham, state of Washington, United
States).22 These briefs dealt with some questions not addressed in the
submissions of the participants or third participants. No participant or
third participant adopted the arguments made in these briefs.
Ultimately, in this appeal, the Division did not find it necessary to
take the two amicus curiae briefs into account in rendering its
decision.
A.2.2 Briefs submitted by WTO Members back to top
A.2.2.1 EC — Sardines, para. 161
(WT/DS231/AB/R)
We turn now to the issue of the amicus curiae
brief filed by Morocco, which raises a novel issue, as this is the first
time that a WTO Member has submitted such a brief in any WTO dispute
settlement proceeding. …
A.2.2.2 EC — Sardines, para. 162
(WT/DS231/AB/R)
… in US — Lead and Bismuth II …we
did not distinguish between, on the one hand, submissions from
WTO Members that are not participants or third participants in a
particular appeal, and, on the other hand, submissions from non-WTO
Members.
A.2.2.3 EC — Sardines, para. 164
(WT/DS231/AB/R)
… As we have already determined that we have the
authority to receive an amicus curiae brief from a private
individual or an organization, a fortiori we are entitled to
accept such a brief from a WTO Member, provided there is no prohibition
on doing so in the DSU. We find no such prohibition.
A.2.2.4 EC — Sardines,
para. 165
(WT/DS231/AB/R)
… We have examined Articles 10.2 and 17.4, and we
do not share Peru’s view. Just because those provisions stipulate when
a Member may participate in a dispute settlement proceeding as a third
party or third participant, does not, in our view, lead inevitably to
the conclusion that participation by a Member as an amicus curiae
is prohibited.
A.2.2.5 EC — Sardines,
para. 166
(WT/DS231/AB/R)
… By contrast, participation as amici in WTO
appellate proceedings is not a legal right, and we have no duty
to accept any amicus curiae brief. We may do so, however, based
on our legal authority to regulate our own procedures as stipulated in
Article 17.9 of the DSU. The fact that Morocco, as a sovereign State,
has chosen not to exercise its right to participate in this
dispute by availing itself of its third-party rights at the panel stage
does not, in our opinion, undermine our legal authority under the
DSU and our Working Procedures to accept and consider the amicus
curiae brief submitted by Morocco.
A.2.2.6 EC — Sardines,
para. 167
(WT/DS231/AB/R)
Therefore, we find that we are entitled to accept the
amicus curiae brief submitted by Morocco, and to consider it. …
To the contrary, acceptance of any amicus curiae brief is a
matter of discretion, which we must exercise on a case-by-case basis.
…… Therefore, we could exercise our discretion to reject an amicus
curiae brief if, by accepting it, this would interfere with the “fair,
prompt and effective resolution of trade disputes.” This could arise,
for example, if a WTO Member were to seek to submit an amicus curiae
brief at a very late stage in the appellate proceedings, with the result
that accepting the brief would impose an undue burden on other
participants.
A.2.2.7 EC — Sardines,
para. 170
(WT/DS231/AB/R)
In sum, with the exception of the arguments relating
to Article 2.1 of the TBT Agreement and the GATT 1994, to
which we will return later, we find that Morocco’s amicus curiae
brief does not assist us in this appeal.
A.2.3 Additional Procedure back to top
A.2.3.1 EC — Asbestos,
para. 50
(WT/DS135/AB/R)
… we wrote to the parties and the third parties
indicating that we were mindful that, in the proceedings before the
Panel in this case, the Panel received five written submissions from
non-governmental organizations, two of which the Panel decided to take
into account. In our letter, we recognized the possibility that we might
receive submissions in this appeal from persons other than the parties
and the third parties to this dispute, and stated that we were of the
view that the fair and orderly conduct of this appeal could be
facilitated by the adoption of appropriate procedures, for the purposes
of this appeal only, pursuant to Rule 16(1) of the Working Procedures,
to deal with any possible submissions received from such persons. To
this end, we invited the parties and the third parties in this appeal to
submit their comments on a number of questions. These related to:
whether we should adopt a “request for leave” procedure; what
procedures would be needed to ensure that the parties and third parties
would have a full and adequate opportunity to respond to submissions
that might be received; and whether we should take any other points into
consideration if we decided to adopt a “request for leave”
procedure. …
A.2.3.2 EC — Asbestos,
para. 51
(WT/DS135/AB/R)
… after consultations among all seven Members of
the Appellate Body, we adopted, pursuant to Rule 16(1) of the Working
Procedures, an additional procedure, for the purposes of
this appeal only, to deal with written submissions received from
persons other than the parties and third parties to this dispute (the
“Additional Procedure”). The Additional Procedure was communicated
to the parties and third parties. … the Chairman of the Appellate Body
informed the Chairman of the Dispute Settlement Body, in writing, of the
Additional Procedure adopted, and this letter was circulated, for
information, as a dispute settlement document to the Members of the WTO.
In that communication, the Chairman of the Appellate Body stated that:
… This additional procedure has been adopted by the Division
hearing this appeal for the purposes of this appeal only pursuant to
Rule 16(1) of the Working Procedures for Appellate Review, and is
not a new working procedure drawn up by the Appellate Body
pursuant to paragraph 9 of Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes. (original
emphasis)
The Additional Procedure was posted on the WTO
website…
A.2.3.3 EC — Asbestos, para. 52
(WT/DS135/AB/R)
The Additional Procedure provided:
1. In the interests of fairness and orderly procedure in the conduct
of this appeal, the Division hearing this appeal has decided to adopt,
pursuant to Rule 16(1) of the Working Procedures for Appellate Review,
and after consultations with the parties and third parties to this
dispute, the following additional procedure for purposes of this appeal
only.
2. Any person, whether natural or legal, other than a party or a
third party to this dispute, wishing to file a written brief with the
Appellate Body, must apply for leave to file such a brief from the
Appellate Body by noon on Thursday, 16 November 2000.
3. An application for leave to file such a written brief shall:
(a) be made in writing, be dated and signed by the applicant, and
include the address and other contact details of the applicant;
(b) be in no case longer than three typed pages;
(c) contain a description of the applicant, including a statement of
the membership and legal status of the applicant, the general objectives
pursued by the applicant, the nature of the activities of the applicant,
and the sources of financing of the applicant;
(d) specify the nature of the interest the applicant has in this
appeal;
(e) identify the specific issues of law covered in the Panel Report
and legal interpretations developed by the Panel that are the subject of
this appeal, as set forth in the Notice of Appeal (WT/DS135/8) dated 23
October 2000, which the applicant intends to address in its written
brief;
(f) state why it would be desirable, in the interests of achieving a
satisfactory settlement of the matter at issue, in accordance with the
rights and obligations of WTO Members under the DSU and the other
covered agreements, for the Appellate Body to grant the applicant leave
to file a written brief in this appeal; and indicate, in particular, in
what way the applicant will make a contribution to the resolution of
this dispute that is not likely to be repetitive of what has been
already submitted by a party or third party to this dispute; and
(g) contain a statement disclosing whether the applicant has any
relationship, direct or indirect, with any party or any third party to
this dispute, as well as whether it has, or will, receive any
assistance, financial or otherwise, from a party or a third party to
this dispute in the preparation of its application for leave or its
written brief
4. The Appellate Body will review and consider each application for
leave to file a written brief and will, without delay, render a decision
whether to grant or deny such leave.
5. The grant of leave to file a brief by the Appellate Body does not
imply that the Appellate Body will address, in its Report, the legal
arguments made in such a brief.
6. Any person, other than a party or a third party to this dispute,
granted leave to file a written brief with the Appellate Body, must file
its brief with the Appellate Body Secretariat by noon on Monday,
27 November 2000.
7. A written brief filed with the Appellate Body by an applicant
granted leave to file such a brief shall:
(a) be dated and signed by the person filing the brief;
(b) be concise and in no case longer than 20 typed pages, including
any appendices; and
(c) set out a precise statement, strictly limited to legal arguments,
supporting the applicant’s legal position on the issues of law or
legal interpretations in the Panel Report with respect to which the
applicant has been granted leave to file a written brief.
8. An applicant granted leave shall, in addition to filing its
written brief with the Appellate Body Secretariat, also serve a copy of
its brief on all the parties and third parties to the dispute by noon
on Monday, 27 November 2000.
9. The parties and the third parties to this dispute will be given a
full and adequate opportunity by the Appellate Body to comment on and
respond to any written brief filed with the Appellate Body by an
applicant granted leave under this procedure. (original emphasis)
A.2.3.4 EC — Asbestos, para. 55
(WT/DS135/AB/R)
Pursuant to the Additional Procedure, the Appellate
Body received 17 applications requesting leave to file a written brief
in this appeal. Six of these 17 applications were received after the
deadline specified in paragraph 2 of the Additional Procedure and, for
this reason, leave to file a written brief was denied to these six
applicants. Each such applicant was sent a copy of our decision denying
its application for leave because the application was not filed in a
timely manner.
A.2.3.5 EC — Asbestos, para. 56
(WT/DS135/AB/R)
The Appellate Body received 11 applications for leave
to file a written brief in this appeal within the time limits specified
in paragraph 2 of the Additional Procedure. We carefully reviewed and
considered each of these applications in accordance with the Additional
Procedure and, in each case, decided to deny leave to file a written
brief. Each applicant was sent a copy of our decision denying its
application for leave for failure to comply sufficiently with all the
requirements set forth in paragraph 3 of the Additional Procedure.
21. This brief purported to add an indigenous dimension to
the issues raised by this appeal. back to text
22. The organizations filing this brief commented on the
environmental implications of the issues raised by this appeal.
back to text
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