Role of NGO in the WTO System
Both state and non-state actors are important partners in the governance of trade at the international and national levels. The WTO can be understood as a system where multiple actors interact at multiple levels to achieve different outcomes. While the mechanism is intergovernmental to the extent that only member states may launch cases and be represented within the process, it is hard to imagine WTO Dispute Settlement today without the involvement third state actors.
The establishment of the WTO in 1995 brought improvements not only to the substantial rules of trade regulation, but also to the dispute settlement system. To quote Professor Andreas F. Lowenfeld, the WTO dispute settlement system is now “the most complete system of international dispute settlement in history.”1 It is hardly surprising, therefore, that NGOs of all kinds have made serious attempts to gain access to this system as a means of achieving their individual goals. The role of NGO’s in panel proceedings has been acknowledged recently but their potential on how they are used, and might be used further to help increase the capacity of member states to engage in the process seem to be seriously undermined. Debate continues over the right of non-governmental organizations and other third parties for submission in dispute settlements. Two precedent cases, in particular, open the door for NGOs to weigh in on trade agreements on the basis of environmental issues.
Amicus curiae briefs were submitted in the very first case brought before the WTO Panel and Appellate Body, the U.S.- Gasoline case. The Panel, however, decided to follow the practice of the old GATT and did not consider these briefs.2 It was the U.S.-Shrimp case that opened the WTO door to amicus curiae.
The Legal Basis to accept amicus curiae briefs by NGO:
Article 13- right to seek information and article 12.1 of DSU
In the Shrimp Turtle case although the panel acknowledged receipt of the two amicus briefs, it decided that it would be inconsistent with the Dispute Settlement Understanding to accept and consider them, because the panel had not requested them.3 At the same time, the Panel observed that any of the parties in the dispute could include the amicus briefs as part of their own submissions if they wished to do so.
The Appellate Body ruled that a panel’s right to “seek information” under Article 13 includes the power to accept or reject any information or advice it may have sought and received, or to make some other appropriate disposition of this information or advice. The Appellate Body also noted that Article 12.1 of the DSU authorizes panels to depart from or add to the Working Procedures set forth in Appendix 3 of the DSU after consultation with the parties to the dispute in order to “provide sufficient flexibility so as to ensure high-quality panel reports while not unduly delaying the panel process.”
It grants a panel the discretion either to accept and consider or to reject information and advice submitted to it, whether requested by a panel or not.
Since then and through a series of cases, the Panel and AB have established a rich body of jurisprudence on the admissibility of amicus briefs, which includes the following rules:
1. DSU Article 13 grants the Panel the authority to accept and consider amicus briefs;
2. The Appellate Body also has authority to accept and consider amicus briefs under Article 17.9 of the DSU and Article 16.1 of the Working Procedures 4.
The legal basis for this authority, however, is somewhat unclear, relying in some cases on Article 17.9 of the DSU and in other cases on Article 16.1 of the Working Procedures5
These two provisions have their own problems:
Article 17.9 of the DSU requires the Appellate Body to consult with the Chairman of the DSB and the Director-General before drawing up working procedures, and to communicate these new procedures to the Members, but in U.S.-Lead and Bismuth II, the Appellate Body did not fulfill either requirement.
Article 16.1 in the Working Procedures does not require similar consultation, but places a series of conditions on creating new rules:
i) The issue should be procedural rather than substantive;
ii) The rules drafted by the AB must not be “inconsistent with the DSU, the other covered agreements and these Rules.”Again there are doubts among WTO Members as to whether the AB’s rules on amicus briefs are consistent with the DSU;
iii) The AB shall “immediately notify the parties to the dispute, participants, third parties and third participants” after adopting such procedures;
iv) Any procedure adopted pursuant to Article 16.1 in the Working Procedures is applicable to that particular appeal only.
3. The amicus curiae brief must be directly or somewhat relevant to the dispute
4. During the panel stage, briefs can provide only factual information; during the appellate stage, briefs should address only questions of law;7
5. Amicus curiae may submit briefs, but do not have a right to have their briefs accepted and considered by the panel and Appellate Body.
This right is limited to WTO Members that are parties or third parties to a dispute. The Panel and Appellate Body have the discretion to decide whether to accept amicus briefs, and whether to consider the briefs after accepting them.
6. The Appellate Body has the authority to adopt procedures to regulate how amicus briefs should be submitted, but it is unclear at this point whether the panel has such authority. Since the Appellate Body has been very open on this issue, however, it is probably just a matter of time before the Appellate Body allows panels to adopt similar procedures8.
7. Amicus briefs should not repeat the factual information or legal arguments already covered by the briefs of parties to the dispute.9
8. If one of the parties to the dispute attaches an amicus brief to its submissions, the amicus brief becomes part of that submission, and the Panel or Appellate Body cannot reject it.10
9. Amicus curiae may submit briefs, but may not participate in the proceedings of the Panel or Appellate Body.
It has been observed even though the Panel and Appellate Body consistently claim the right to accept and consider amicus briefs, they rarely exercise this right. The cases referred indicate that unless one of the parties attaches an amicus brief to its own submission, the Panel and Appellate Body frequently reject amicus briefs for procedural reasons, or because the information in them is irrelevant or duplicates the submissions of parties to the case. An exception is the amicus submission from Morocco in the EC-Sardines case, which was considered by the Appellate Body without being attached to the submissions of any of the parties in the case.11
While it maybe too far fledged to propose an amendment to article 25 of DSU to be modified to provide arbitral proceedings between WTO member states and non-state actors modelled after other forms of international arbitration. In summation, it appears that the Appellate Body needs to provide further clarification on the legal basis for accepting amicus briefs in a way to ensure it does not prove to be a burden to the parties and the proceedings and in particular provide a specific time frame to for acceptance of the amicus curiae briefs.12 To ensure NGO’s are granted a right to involvement as third parties in dispute settlement proceedings.
1 Padideh Ala’I Judicial Lobbying at the WTO:The Debate over the Use of Amicus Curiae Briefs and the U.S. Experience, 24 Fordham International Law Journal,Vol.24, 2000, p. 84. As cited by Henry Gao , p. 68.
4 US- Lead Bismuth - Appellate Body Report, United States—Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom,WT/DS138/AB/R,
5 Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products
6 Ec asbestos case- arguments.The EC had also proposed to the Panel that it reject the submissions from the
Ban Asbestos Network and the Insituto Mexicano de Fibro- Industrias A.C., as those documents contained no information of relevance to the dispute
7 EC—Asbestos and EC—Sardine8 Dinah Shelton,The Participation of Nongovernmental Organizations in International Judicial Proceedings, American Journal of International Law, Vol.88, 1994, p. 616
9 See the amicus brief by Earth Justice, available at http://www.earthjustice.org/regional/international/trade_documents/WTO Shrimp-Turtles 21-5.pdf
10 Us- Shrimp case where National Wildlife Federation was considered as part of the US submission
11 Amicus curiae in WTO: theory and practice by Henry Gao P 6
12 The fifth brief, submitted by ONE (“Only Nature Endures”) after the interim report had been issued,was
rejected by the Panel on the grounds that it had been submitted at too late a stage in the proceedings to be taken into account The fifth brief, submitted by ONE (“Only Nature Endures”) after the interim report had been issued,was rejected by the Panel on the grounds that it had been submitted at too late a stage in the proceedings to be taken into account
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