Jean Monnet Center at NYU School of Law


Act One: Taming Of The Shrew

Amicus curiae briefs recently monopolised the discussion with respect to WTO dispute settlement proceedings. WTO members, with the exception of very few, showed in rather explicit terms their disagreement with the way the Appellate Body handled this issue. It all started when the Appellate Body in the context of a recent litigation officially invited amicus curiae briefs. Some WTO Members requested that an extraordinary Council meeting be convened. Heated exchanges during the Council meeting probably had an effect and the Appellate Body decided to back-track from what it originally stood for. What happened in the Council though was the culmination of a more general dissatisfaction.

In this Paper, I first provide an account of the legal interpretation that the Appellate Body privileged when dealing with the status of amicus curiae briefs in WTO law (Act Two). I then move to a brief Act Three, where I examine under what conditions parties would be interested in filing such briefs to the WTO. I note in this respect that the most obvious candidates (consumers' organisations) have yet to use this possibility and that the main users are non-governmental organisations (NGOs) with an interest in health and environmental issues. This picture however, might be changing in the future. In the same Section I refer to a study conducted on the issue of amicus curiae briefs submitted to the US Supreme Court and which puts into question the efficiency of (at least some) of the briefs filed. In the Final Act I conclude, in the Shakespearean manner, that probably the whole discussion amounts to "Much Ado About Nothing": WTO law already contains in-built disciplines that, if properly applied on the amicus curiae issue, provide an adequate response to the issue which is in line with the distribution of powers between legislative and judiciary as expressed in the WTO Dispute Settlement Understanding (DSU). In the same Section however, I sketch the attitude of the Appellate Body to "test the waters" and its institutional consequences. To my view, the story of amicus curiae briefs is a perfect illustration of the limits that WTO institutions face: contrary to the popular belief, the WTO remains an essentially Members-driven organisation.



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