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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.2.1.14 Mexico — Taxes on Soft Drinks, para. 8 and footnote 21
(WT/DS308/AB/R)
On 13 January 2006, the Appellate Body received an amicus curiae brief
from Cámara Nacional de las
Industrias Azucarera y Alcoholera (National Chamber of the Sugar and
Alcohol Industries) of Mexico.21 The Division did not find it necessary
to take the brief into account in resolving the issues raised in this
appeal.
A.2.1.15 Brazil — Retreaded Tyres, para. 7
(WT/DS332/AB/R)
On 28 September 2007, the Appellate Body received an amicus curiae
brief from the Humane Society International. On 11 October 2007, the
Appellate Body further received an amicus curiae brief submitted
jointly by a group of nine nongovernmental organizations. The Appellate
Body Division hearing the appeal did not find it necessary to take these
amicus curiae briefs into account in rendering its decision.
A.2.1.16 China — Auto Parts, para. 11
(WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R)
On 10 October 2008, the Appellate Body received an unsolicited amicus
curiae brief. After giving the participants and the third
participants an opportunity to express their views, the Division hearing
the appeal did not find it necessary to rely on this amicus curiae brief
in rendering its decision.
A.2.2 Briefs submitted by WTO Members
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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
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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.
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21. At the oral hearing, Mexico stated that its arguments are set out
in its appellant’s and oral submissions. Mexico added, however, that
it would not object should the Appellate Body decide to accept the amicus brief. The United States noted that the amicus brief had been
received late in the proceedings and that it presented new arguments and
claims of error that were not part of Mexico’s Notice of Appeal.
Accordingly, while taking the view that the Appellate Body had the
authority to accept the brief, the United States argued that it should
decline to do so in the circumstances of this dispute.
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