A.2.1 Briefs submitted by NGOs, associations, and individuals back to top
A.2.1.1 US — Shrimp, para. 89
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
… 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
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
… 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
… 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
… 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
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
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
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
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
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
… 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
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
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
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 non-governmental 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.2.1.17 US — Anti-Dumping and Countervailing Duties (China), para. 18
On 15 December 2010, 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.2.1.18 US — Clove Cigarettes, para. 10
Two amicus curiae briefs were received by the Appellate Body in relation to this appeal: on 24 January 2012 from the Campaign for Tobacco-Free Kids, the American Academy of Pediatrics, the American Cancer Society, the American Cancer Society Cancer Action Network, the American Lung Association, the American Medical Association, and the American Public Health Association; and on 26 January 2012 from the O’Neill Institute for National and Global Health Law at the Georgetown University Law Center. The Appellate Body Division hearing the appeal gave the participants and third participants an opportunity to express their views on the amicus curiae briefs referred to above. The Division did not find it necessary to rely on these amicus curiae briefs in rendering its decision.
A.2.1.19 US — Clove Cigarettes, para. 11
On 25 January 2012, the Presiding Member of the Division received a letter from the Director-General of the World Health Organization (the “WHO”) expressing interest and offering technical assistance in this appeal in areas covered by the WHO’s mandate. The Division thanked the WHO Director-General for her letter, and indicated that it would reflect on the need for such assistance. The Division asked the participants and third participants to comment on the letter from the WHO. Of the participants, the United States submitted comments, and of the third participants, the European Union commented. In the light of the fact that the parties had placed a considerable amount of materials regarding WHO legal instruments and the WHO’s work in the area of tobacco control on the Panel record, and mindful of its mandate on appeal under Article 17.6 of the DSU, the Division did not deem it necessary to request assistance from the WHO.
A.2.1.20 US — Tuna II (Mexico), para. 8
On 2, 3, and 17 February 2012, the Appellate Body received unsolicited amicus curiae briefs from, respectively, the Humane Society of the United States/Humane Society International and Washington College of Law (WCL), ASTM International (formerly the American Society for Testing and Materials), and Professor Robert Howse. The participants and the third participants were given an opportunity to express their views on these briefs at the oral hearing. The Division hearing this appeal did not find it necessary to rely on these amicus curiae briefs in rendering its decision.
A.2.1.21 Canada — Renewable Energy / Canada — Feed-in Tariff Program, para. 1.30
On 7 and 12 March 2013, the Appellate Body received unsolicited amicus curiae briefs from, respectively, an energy company and an academic. The participants and third participants were given an opportunity to express their views on these briefs at the oral hearing. The Division did not find it necessary to rely on these amicus curiae briefs in rendering its decision.
A.2.2 Briefs submitted by WTO Members. See also Third Party Rights (T.8) back to top
A.2.2.1 EC — Sardines, para. 161
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
… 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
… 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
… 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
… 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
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
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. See also Working Procedures for Appellate Review, Rule 16 — Process, Rule 16(1) — Adoption of additional procedures (W.2.6.1) back to top
A.2.3.1 EC — Asbestos, para. 50
… 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
… 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
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
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
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
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. back to text