Amicus Curiae Briefs in WTO Disputes: An Opportunity for Participation

From the 1990s onwards, an increasing number of international dispute settlement systems have allowed non-state actors to make written submissions (amicus curiae briefs) in proceedings. International trade dispute settlement is no exception. Focusing on submissions in World Trade Organization (WTO) disputes, this TradeLab guide explains what an amicus brief is, why and how a non-state actor might submit one and what the possible benefits of submission are. This is one area in which TradeLab can help. Our clinics can assist any WTO member to identify cases it should submit a brief in, and/or prepare the brief on their behalf.

Clinic: Graduate Institute, 2016

What is an amicus curiae brief?

The amicus curiae ("friend of the court") brief is a means by which persons or entities not party to a dispute can contribute information and legal argument on matters relevant to that dispute. The rationale underlying amicus participation is that it enhances the integrity of the dispute settlement process and decisions, providing material or arguments not offered by the parties or offering an alternative perspective on the questions of fact or law raised in the dispute.

In intergovernmental dispute settlement systems, like the WTO, the amicus brief provides an opportunity to a broad range of organizations that have an interest in a dispute and wish to represent that interest independently and directly to the decision-makers.

Amicus Curiae briefs at the WTO

Since 1998, WTO Panels and the Appellate Body have accepted amicus curiae briefs. So far, a broad range of non-state actors have submitted over 100 briefs, including corporations, business associations, trade unions, professional associations, academics, other expert bodies and NGOs (and even one government). Participating NGOs include smaller grassroots organizations, most often listed on joint briefs, to high profile and well-resourced NGOs.

How to submit a brief at the WTO

Briefs are submitted by sending copies directly to the Panel and Appellate Body (Dispute Settlement Body, World Trade Organization, Centre William Rappard, Rue de Lausanne 154, CH-1211 Geneva 21, Switzerland). An application for leave to submit, which is a common requirement for amicus style participation, is not required. There are no formal rules governing submission, formatting or content. However, the practice of submission and treatment of briefs by the Panels and Appellate body is suggestive of some general guidelines about timing, relevancy and formatting of the submissions.

Timing

Perhaps most importantly, a brief should be submitted as early in the process as possible. The preference appears to be for submission prior to the meetings of the Panels or Appellate Body with the parties to the dispute. Briefs submitted after this stage of the proceedings have been summarily rejected.

Ensuring timely submission is not without difficulty on account of the confidentiality rules around the dispute settlement proceedings. Notifications of requests for consultations and the establishment of Panels are posted on the WTO website. News services and blogs, such as Bridges and WorldTradeLaw.net also provide information about emerging disputes. While the Member States that are party to a dispute are restricted in what information they can disclose, especially once formal proceedings begin, relevant trade departments may be able to provide indications as to anticipated timelines. Even with this knowledge, you may still need to prepare and submit your brief in a short timeframe as the rules of dispute settlement set tight deadlines around the progress of a dispute.

Relevancy

As is the case in other jurisdictions where amicus participation is found, Appellate Body and Panel treatment of submitted briefs indicate that a valuable contribution is one that addresses matters within the scope of the dispute. Again, the confidential character of dispute settlement does mean that some details of disputes are not always available to prospective submitters of briefs. However, the requests to establish a Panel or notice of appeal prepared by Member States and published on the WTO website, do provide some indication of the scope of the dispute. Additionally, some Member States may publish their own submissions or be willing to provide further information about their own position, as long as they do not infringe on the right of other parties to confidentiality. Panels and the Appellate Body have rejected as ‘unfriendly’ amicus curiae briefs that clearly rely on unauthorized confidential information.

Formatting and other requirements

While there are no formal requirements as to length, formatting or disclosure of interest by the submitter, a special Additional Procedure for leave to submit a brief adopted by the Appellate Body in one dispute, does provide some guidance on these questions. According to that Procedure, submissions ought to include a description of the amicus, its general objectives, activities and financing as well as whether a party or third party to the dispute has provided any assistance in the preparation of the amicus submission. The Procedure also indicates a preference for ‘concise’ submissions and set a 20 page limit. The majority of repeat submitters in WTO dispute settlement have followed some of these suggestions. Notably, providing a description of the submitter and a disclosure statement. The page limits suggested are not always adhered to. Certainly, submissions to Panels that include factual material tend to be longer. The submission of new factual information at the appellate level is not advisable, as it is beyond the Appellate Body’s authority to consider it.

The majority of briefs submitted to the WTO appear to have benefitted from some input by legal experts, if not authored by a legal academic or practitioner. While this is not a formal requirement, evidence from amicus participation in other jurisdictions suggests that briefs submitted by or with the participation of legal experts are more positively received.

Why submit a brief?

Participation via amicus brief is popular among many non-state actors because it is relatively inexpensive compared to political lobbying or, where available, participating as a litigant.

What impact on the decisions?

Measuring the impact of briefs on decisions is notoriously difficult. Of 107 briefs submitted, Panels and the Appellate Body have accepted 60 briefs for consideration and made direct reference to the content and potential or actual usefulness of 3 briefs. Additionally, parties to the disputes have adopted 12 briefs. This ‘success’ rate appears comparable to that found in the United States Supreme Court, where hundreds of amicus briefs are submitted every year. In WTO dispute settlement, an amicus brief is more likely to be considered if adopted by one of the parties to the dispute. Notably, many submitters send copies to the parties at the same time as submitting it to the Panel or Appellate Body.

Other benefits?

More recent research suggests other potential benefits of amicus participation. These include; building capacity and expertise, profile raising and agenda setting as well as establishing networks with like-minded groups or within the trade community.

Other trade dispute systems where amicus briefs are accepted

Following the acceptance of amicus briefs in WTO dispute settlement, a NAFTA tribunal ruled that it was also able to admit amicus briefs. Many other trade dispute arbitral panels have also followed suit. In many more recently concluded investment agreements and trade agreements, the amicus brief is formally included in dispute settlement arrangements. In these cases, it is important to check whether there are any formal requirements, such as a request for leave to submit, formatting rules or time limits. In most instances, failure to follow any formal requirements will result in summary rejection.

Further Resources

Author

Dr. Nicola Charwat, Monash Business School, Department of Business Law & Taxation

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