DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 9
Participation in dispute settlement proceedings
A controversial issue has been whether panels and the Appellate Body may accept and consider unsolicited submissions they receive from entities not a party or third party to the dispute. These submissions are commonly referred to as amicus curiae submissions. Amicus curiae means “friend of the court”. These submissions often come from non-governmental organizations, including industry associations, or university professors. Neither the DSU nor the Working Procedures for Appellate Review specifically address this issue.
Amicus Curiae submissions in panel proceedings back to top
According to the Appellate Body, the panels’ comprehensive authority to seek information from any relevant source (Article 13 of the DSU) and to add to or depart from the Working Procedures in Appendix 3 to the DSU (Article 12.1 of the DSU) permits panels to accept and consider or to reject information and advice, even if submitted in an unsolicited fashion.1
The Appellate Body has confirmed this ruling several times, but the issue remains extremely contentious among WTO Members. Many Members are of the strong view that the DSU does not allow panels to accept and consider non-requested amicus curiae submissions. They consider WTO disputes as procedures purely between Members and see no role whatsoever for non-parties, particularly non-governmental organizations.2
To date, only a few panels have in fact made use of their discretionary right to accept and consider unsolicited briefs. On the basis of the Appellate Body’s interpretation, panels have no obligation whatsoever to accept and consider these briefs. Accordingly, interested entities, which are neither parties nor third parties to the dispute, have no legal right to be heard by a panel.
Amicus Curiae submissions in the appellate procedure back to top
Amicus curiae submissions have frequently been filed in Appellate Body proceedings. When these briefs are attached to the submission of a participant (appellant or appellee), for instance as exhibits, the Appellate Body considers such material to be an integral part of the submission of that participant who also assumes responsibility for its content.3
When the Appellate Body receives unsolicited briefs directly from an amicus curiae, the entity filing the brief has no right to have it considered.4 Nonetheless, the Appellate Body maintains that it has the authority to accept and consider any information it considers pertinent and useful in deciding an appeal, including unsolicited amicus curiae submissions. The Appellate Body believes such a right flows from its broad authority to adopt procedural rules, provided they do not conflict with the DSU or the covered agreements (Article 17.9 of the DSU).5
In one appeal, the Appellate Body foresaw that it might receive a high number of amicus curiae briefs and adopted an additional procedure pursuant to Rule 16(1) of the Working Procedures for the purpose of that appeal only. This procedure specified several criteria for such submissions. Persons other than the parties and third parties intending to file such a submission were required to apply for leave to file that submission. Upon review of the applications, however, the Appellate Body denied all applicants leave to file briefs.6 In reaction to the adoption of these additional procedures, the General Council of the (WTO) discussed the matter in a special meeting where a majority of WTO Members that spoke considered it unacceptable for the Appellate Body to accept and consider amicus curiae briefs.7
Recently, the Appellate Body received an amicus curiae submission from a WTO Member that had not been a third party before the panel and, therefore, could not become a third participant in the appellate proceeding. The Appellate Body recalled that it had the authority to receive amicus curiae briefs from private individuals or organizations, and concluded that it was equally entitled to accept such a brief from a WTO Member. However, the Appellate Body did not believe it was required to consider the content of that brief.8
Despite the controversy surrounding this issue, the Appellate Body has never considered any unsolicited submission to be pertinent or useful, and thus, has never considered any that have been submitted.
2. The statements of these Members can be found in the minutes of the DSB meetings in which the DSB adopted the respective panel (and Appellate Body) report. See also General Council, Minutes of the Meeting of 22 November 2000, WT/GC/M/60. back to text