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The Appellate Body decisions concerning participation of NGOs are not a monument of clarity. First, the Appellate Body dealt with the issue in the context of the Shrimps-Turtles 1 litigation. The story runs as follows: NGOs had submitted briefs to the Panel which refused to accept them because it never requested them. The Panel was taking Art. 13 DSU at face value. This Article, it is reminded reads:
"Each Panel shall have the right to seek information and technical advice from any individual or body which it deems appropriate".
In the Panel's view, the verb "to seek" which figures in the body of Art. 13 DSU reflects the idea that panels and panels only have the initiative to request information. Hence, in the panel's view, unsolicited information is ipso facto (that is, precisely because it is not solicited) to be disregarded.
The Appellate Body disagreed. In a rather convoluted passage, it reasoned as follows:
"That the Panel's reading of the word 'seek' is unnecessarily formal and technical in nature becomes clear should an 'individual or body' first ask a panel for permission to file a statement or a brief. In such an event, a panel may decline to grant the leave requested. If, in the exercise of 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. In this kind of situation, for all practical and pertinent purposes, the distinction between 'requested' and 'non-requested' information vanishes" (§ 107 of the report, op. cit., italics in the original).
This is as close as you can get to artistic legal expression: according to the Appellate Body, the Panel's interpretation of the term "seek" is wrong because, had a party sought (past of the verb 'to seek') to submit unsolicited information and had the Panel agreed to accept such unsolicited information, the Panel would have examined such unsolicited information. True. The problem though is what in case when a Panel does not accept such unsolicited information and not what in case when it accepts it. To make things worse, the Appellate Body in a typical statement the legal value of which cannot be ascertained (in light of the fact that at the end, the Appellate Body typically concludes 'for all the reasons discussed above' and we are often left in the dark as to the particular importance of each and every reason provided for in the report) draws a parallel between two antitheses: to seek and not to seek on the one hand, and to accept and to reject on the other (§ 104 of the report, op. cit.). But of course, no parallel can be drawn: the issue is precisely whether any unsought information should ipso facto (i.e., because it is unsought) be rejected?
The fact of the matter is that through a
rather "acrobatic" interpretation of the term "to seek", the Appellate
Body managed to introduce the amicus curiae briefs issue to the WTO.
Crucially, it did so by reference to
Art. 13 DSU which is, as I will try to show later, not the most appropriate way
to deal with this issue.
The Appellate Body's opinion did not go down well. Although the Appellate Body did not accept any of the briefs filed, some WTO Members started protesting. The reason was that they felt that non institutional players, like NGOs, could end up having more rights than WTO Members. The asymmetry in their eyes resulted from the fact that whereas NGOs could file to the Appellate Body their brief anyway, WTO Members could do so only if they had first acted as third parties before the corresponding panel. This was however a wrong argument. The issue was not whether there should be symmetry or asymmetry between institutional and non-institutional players. The issue was whether the Panel's interpretation of the term "to seek" was sustainable or not.
As presented in terms of asymmetry however, it gave the Appellate Body the opportunity to clarify its position on this issue in the US - CVDs on Steel2 case-law. Referring to the argument on asymmetry, the Appellate Body observed:
"Individuals and organizations, which are not Members of the WTO, have no legal right to make submissions to or 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 ogranizations, 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" (§ 41 of the report, op. cit., italics in the original).
So much for the duty. And what about the right?
"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" (§ 42 of the report, op. cit., italics in the original).
In principle, this statement takes away a lot of the criticism previously advanced. Still, it is less than satisfactory. The crucial issue remains by reference to which provision in the WTO Agreement did the Appellate Body conclude that it indeed had the legal authority under the DSU to accept amicus curiae briefs? Implicitly, the answer should be searched in Art. 13 DSU. But if it is indeed the case that Art. 13 DSU confers such authority to WTO adjudicating bodies, why did the Appellate Body add in its Shrimps-Turtles decision that the Panel should consult with the parties to the dispute before accepting unsolicited information? The legal authority of panels to request information from any source under Art. 13 DSU is not subjected to any such prior duty to consult the parties to the dispute. More importantly, Art. 13 DSU talks of the right of panels and panels only to seek information from outside sources. Unless one extends the term "a panel" to cover all WTO adjudicating bodies -- an exercise which anyway could hardly find support in the Vienna Convention on the Law of Treaties (VCLT) -- Art. 13 DSU cannot be of much help.
Recently however, the Appellate Body had the opportunity to further clarify its position. The issue arose in the context of the Asbestos litigation3. Following the panel proceedings, the Appellate Body decided, for the first time, to publicly invite briefs from all interested sources. In the Appellate Body's view, its legal authority to do so stemmed from Art. 16(1) of the Working Procedures for Appellate Review. Art. 16(1) states:
"In the interest of fairness and orderly procedure in the conduct of an appeal, where a procedural question arises that is not covered by these Rules, a Division may adopt an appropriate procedure for the purpose of that appeal only provided that it is not inconsistent with the DSU, the other covered agreements and these Rules".
Now this is the appropriate moment to take stock of what the Appellate Body has ruled on the amicus curiae issue: Panels, under Art. 13 DSU, can accept unsolicited briefs. However, they are -according to the current state of affairs, at least-under no legal duty to either respond to the sender or to reflect the content of the briefs received in their findings. They should (the Appellate Body was expressing a wish and was not reflecting an obligation) consult with the parties whether they should accept briefs and nothing more. Practice shows that panels will ask the parties to a dispute whether they would like to incorporate what has already been stated in a brief. But panels do not have to ask this question under the DSU. In a nutshell, they can throw to the bin amicus curiae briefs sent to them and they will be behaving perfectly along the wishes of the Appellate Body as long as they do just that (that is, throw the brief to the bin) and not, when throwing amicus curiae briefs to the bin, they also issue a decision whereby they reject the (thrown to the bin) unsolicited briefs because they were not solicited.
The Appellate Body on the other hand, has the legal authority under Art. 16(1) of its Working Procedures to accept briefs. Such briefs can be solicited, if the Appellate Body decides to exercise its prerogative under Art. 16(1) and formally invite briefs. The words "for that appeal only" in the body of Art. 16(1) make it clear that the Appellate Body will solicit briefs on an ad hoc basis.
So we know the legal provision that allows panels to accept amicus curiae briefs (Art. 13 DSU). We also know the legal provision that allows the Appellate Body to request submission of amicus curiae briefs (Art. 16(1) of the Appellate Body's Working Procedures). But we still do not know the provision that allows the Appellate Body to accept unsolicited amicus curiae briefs. It cannot be Art. 13 DSU, since this provision refers to panels only.4 Can it be Art. 16(1)? Most likely, not. Art. 16(1) is about ad hoc solutions and does not reflect a general right. On the other hand, if we interpret Art. 16(1) along the lines of the Appellate Body's interpretation of Art. 13 DSU, then yes, the Appellate Body under Art. 16(1) has the legal authority to accept unsolicited briefs which must be an implied authority in view of the explicit authority vested upon the Appellate Body to request amicus curiae briefs. The Appellate Body however so far has not advanced this interpretation. Hence, it is still unclear whether Art. 16(1) will be interpreted along the lines of Art. 13 DSU.
The legal authority to accept unsolicited briefs could also lie somewhere in Art. 17 DSU, since it is Art. 17 DSU that describes how the Appellate Review will take place. And, as the Appellate Body in the Asbestos case noted, it cannot lie in Art. 17.9 DSU which regulates new working procedures (which is not the case, as the Appellate Body maintains, when we talk of amicus curiae briefs). Why however should we be searching for the answer? Is it not the Appellate Body's task to explain itself on the issue? Well, the Appellate Body did not. Hence, the search.
What followed added to and did not detract at all from the story. The Appellate Body, in its request for submission of amicus curiae briefs, laid down seven (7) easy-to-meet procedural conditions (having mostly to do with the size of the submission) that petitioners requesting leave should meet. It further promised to respond whether petitioners requesting leave will be heard. Any notion of due process would lead to the inescapable conclusion that, if somebody requesting leave could fulfil the seven (7) easy-to-meet procedural conditions, he/she would be heard by the Appellate Body. A number of hopefuls5 submitted. None was admitted. All seventeen failed, obviously, to meet the seven (7) easy-to-meet procedural requirements that the Appellate Body itself had imposed. All seventeen?
Meanwhile, some WTO Members saw the request of the Appellate Body which was circulated on November 8, 2000. They were not entirely in agreement with the initiative of the Appellate Body and requested an extraordinary meeting of the WTO General Council. On November 22, 2000, the meeting took place. And there, with very very few exceptions, WTO Members showed what they thought of the Appellate Body's initiative. I quote from the Minutes6:
"Uruguay believed that the practical effect had been to grant individuals and institutions outside of the WTO a right that Members themselves did not possess" (§ 7 of the Minutes).
Egypt, speaking on behalf of the Informal Group of Developing Countries (IGDC) stated that the Appellate Body's decision "went far beyond the Appellate Body's mandate and powers" (§ 12 of the Minutes).
India, adding a dramatic tone, first noted that "the disquiet and anxiety generated among the Membership by the Appellate Body's communication was so great that convening this special meeting of the General Council on short notice was more than justified" (§ 29 of the Minutes). It reproduced what had been stated before and added that "when an overwhelming number of the Members were clearly of the view that even accepting unsolicited amicus curiae briefs was a substantive issue that could not be dealt with under Rule 16(1), it was totally unjustified by the Appellate Body to proceed on the basis that soliciting amicus curiae briefs was not a substantive matter and that they could deal with it under Rule 16(1)" (§ 32 of the Minutes, italics in the original).
Brazil, "was also concerned with the notion that panels and the Appellate Body would be deciding who had a right to file written briefs on the basis of the applicant's membership, legal status, objectives, interests, nature of activities, sources of financing, or relationship with parties or third-parties to the dispute. If jurisprudence advanced in this direction, the dispute settlement mechanism could soon be contaminated by political issues that did not belong to the WTO, much less to its dispute settlement mechanism" (§ 46 of the Minutes).
Mexico noted that the Appellate Body's démarche would lead to an "unmanageable number of requests", and would add to the delay (§ 51 of the Minutes).
Switzerland noted that the issue "should be solved through negotiations" and that "failing to do this, the division between the legislative and the judicial functions would remain blurry" (§ 64 of the Minutes).
Costa Rica noted that "such a measure represented a risk for developing countries as it would put them in a situation where they would be sort of possibilities of defence" (§ 70 of the Minutes).
On the other side, the United States "believed that the Appellate Body had acted appropriately" (§ 74 of the Minutes), whereas the EC stated that there was a need for rule-making on this issue, and that "if the legislative fell short in legislating, the judiciary arm had the tendency to fill the gap" (§ 96 of the Minutes).
The Appellate Body was hence accused of: giving non-institutional players more rights than it is prepared to acknowledge to WTO members; going against the popular perception with respect to the status of amicus curiae in WTO law; opening up WTO dispute settlement to intense politicking; disproportionately increasing the workload for panels and itself; prejudicing developing countries' interests; and finally, trespassing its own mandate and becoming a legislator.
Of all the charges voiced during the meeting only the last is meritorious. For if the Appellate Body acted within its mandate, all of the other charges automatically fall.
The comedy of errors however does not stop here. Following this meeting and having now clearly established that the majority of WTO Members are hostile to its initiative, the Appellate Body went ahead and issued an un-motivated communication whereby it rejected all amicus curiae submitted to it. The world learned from journalists7, that the motivation for rejections would come with the final report. It is never too late. Or is it sometimes?
By opening up the process for submission briefs and immediately closing it following the November WTO Council meeting, the Appellate Body managed to alienate all of the WTO constituency: the WTO Members, the NGOs8 and some of us who continue to write on WTO issues.
Before I respond to the question whether the Appellate Body was
legitimized to behave the way it did, I ask the question why would a
non-institutional player participate as amicus curiae.
1 United States - Import prohibition of certain shrimp and shrimp products, WT/DS58/AB/R, 12 October 1998.
2 See Appellate Body report on United States - Imposition Of Countervailing Duties On Certain Hot-Rolled Lead And Bismouth Carbon Steel Products Originating In The United Kingdom, WTO Doc. WT/DS138/AB/R of 10 May 2000.
3 European Communities - Measures affecting asbestos and products containing asbestos (DS135/R) and (DS135/R/Add.1). Document inviting briefs: DS135/9.
4 Unless of course, the Appellate Body can show that the term "panels" also encompasses the term "Appellate Body", an approach that would not necessarily go down easily with all members of the Appellate Body.
5 We come back to this point in a moment.
6 See WTO Doc. WT/GC/M/60 of 23 January 2001.
7 See, The Economist, December 10, 2000: according to Debra Steger, Director of the Legal Affairs Division of the Appellate Body, full motivation for every rejection will be provided when the final report comes out in April 2001.
8 On an anecdotal basis, we should mention that Robert Howse, Professor of Law at the Un. of Michigan, expressed his wonder at a conference held in Geneva (December 2000) as to the wisdom of students to spend substantial amounts of money to learn WTO law from someone who cannot comply with seven procedural requirements.