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Practical suggestions for amicus curiae briefs before WTO adjudicating bodies
A1 Legal Affairs Division, WTO A2 Center for International Environmental Law, Geneva, Switzerland
The evolution of the multilateral trading system, and the creation of the World Trade Organization, has heightened calls by non-governmental organizations to participate in decisions about trade policy, including in WTO dispute settlement as amicus curiae, or 'friends of the court'. Amicus briefs have now been received by a number of WTO panels and the Appellate Body, raising an outcry from many WTO Members, and calls by others for the creation of criteria to guide their use. This note explores the practical implications of amicus briefs, and suggests criteria for their use in light of current WTO practice, the goals of the WTO and its dispute settlement mechanism, and the practice of other international courts and tribunals. It commences by examining the main WTO disputes in which amicus briefs have been received, and the varying responses of WTO adjudicating bodies. It then examines the approach of other international fora - including the International Tribunal for the Law of the Sea - to involvement of non-parties. Drawing on these experiences, it suggests that WTO panels and the Appellate body should weigh both substantive criteria (relating, for example, to the character of the amici, the nature of its submission, and the characteristics of the case) and procedural criteria (relating to issues such as timing and format) when determining whether, and if so, how to use amicus briefs. The note also identifies the mechanisms that may be used to establish criteria to ensure amicus briefs promote predictability and procedural fairness in WTO dispute settlement.