Was the Appellate Body legitimized to request amicus curiae briefs? The Working Procedures, that are adopted in accordance with Art. 17.9 DSU, cannot of course go beyond the mandate of Art. 17 DSU. This approach is dictated by the fact that whereas the DSU is negotiated and agreed upon by the WTO Members (the principals), the Working Procedures will be drafted by the Appellate Body in consultation with the Director-General and the Chairman of the DSB (essentially, the agents). The agents lack the legitimacy needed to go beyond the mandate established and reflected in Art. 3.2 DSU (which obliges WTO adjudicating bodies to respect the balance of rights and obligations as agreed by sovereign states and reflected in the WTO contract). The Appellate Body itself has acknowledged that Art. 3.2 DSU constitutes the boundaries within which it must operate.
Art. 17 DSU, on its face, makes no allowance for amicus curiae. Is this however the end of the story? Is the Appellate Body bound only by what is explicitly stated in the DSU? If this were indeed the case, one could end up with rather perverse outcomes: for example, nowhere the DSU mentions that the Appellate Body must make an objective assessment of the matter before it. The matter comprises of course not only the facts, but also the law, as the unambiguous wording of Art. 11 DSU makes it plain. Such an obligation is imposed only on panels (Art. 11 DSU). Does the fact that such an obligation is not explicitly imposed on the Appellate Body mean that, following an a contrario interpretation, the Appellate Body should not make an objective assessment of the matter before it? Of course not. The Appellate Body cannot preach objective assessment and practice subjective superficial browsing.
The Appellate Body hence, should be allowed some discretion to conduct business before it. The key is of course that, when exercising such discretion, the Appellate Body does not undo its implicit duty to respect due process. And by the way, nowhere in the DSU is the term due process mentioned. Few would disagree that the Appellate Body has to ensure that due process has been complied with. WTO Members, in their submissions, whenever they raise a procedural concern, almost always refer to due process.
The Appellate Body can, to our mind, respect due process and still invite amicus curiae provided that it always ensures that such briefs do not extend to factual issues and parties to a dispute are given adequate opportunity to react to them.
The first requirement is imposed by the DSU itself: Art. 17 DSU makes it plain that only legal issues are properly before the Appellate Body. Amicus curiae briefs must cover only legal issues.
By covering legal issues only though, amicus curiae briefs might in practice tilt the balance in favour of one of the parties to the dispute, the side of which they are taking. Is such tilting an extra burden, for the WTO Member concerned, beyond what has been agreed in the Uruguay round agreements? Is such tilting in other words, always in contravention of Art. 3.2 DSU.
No, is the answer, if the Appellate Body observes its own case-law in this respect and develops in practice a procedural mechanism which will ensure that parties to the dispute will be given adequate opportunity to react. Let us take the substantive point first.
The Appellate Body has already emphasized the de-centralized character of WTO enforcement in this respect. In its Japan - Varietals10 case-law, faced the issue whether an argument provided by an expert witness invited to testify before a panel which had not been raised by the complaining party could still be used by the WTO adjudicating body in its ratio decidendi. The Appellate Body answered in the negative and we quote:
"However, this authority cannot be used by a panel to rule in favour of a complaining party which has not established a prima facie case of inconsistency based on specific legal claims asserted by it. A panel is entitled to seek information and advice from experts and from any other relevant source it chooses, pursuant to Article 13 of the DSU and, in an SPS case, Article 11.2 of the SPS Agreement, to help it to understand and evaluate the evidence submitted and the arguments made by the parties, but not to make the case for a complaining party".
Were the Appellate Body to adopt an approach along these lines, participation of NGOs will be in line with the agreed balance of rights and obligations of WTO Members. All amicus curiae briefs will thus be used to evaluate arguments made the parties to the dispute and not to make the case for the complainant or the defendant. With respect to NGOs' participation as amicus curiae consequently, the Appellate Body has still the opportunity to "streamline" its case-law along the lines of Art. 3.2 DSU11.
Is the concern a serious one though? Does it deserve the attention it attracted? Should WTO Members request an extraordinary session of the WTO Council for an issue like this and not, for example, for the unprecedented manner in which the Appellate Body interpreted the causality requirement in its Wheat Gluten jurisprudence?12 What if, NGOs, instead of submitting their briefs to the Appellate Body, publish it in the Financial Times, the Economist or make it available in the Internet? And what if Appellate Body judges (as hopefully is the case) read the Financial Times, the Economist and keep in track with what is going on on the Internet?
Has the Appellate Body gone too far in the Asbestos case? Other courts follow a very comparable pattern: the ICJ, its statutory language notwithstanding, seems to direct its procedures towards increased openness in this respect (Shelton, 1994). In Methanex Corporation and United States of America, a recent Chapter 11 NAFTA Arbitration, the Tribunal first offers a careful review of the manner in which various adjudicating bodies address the issue of amicus curiae and ends up concluding that, provided that due process is safeguarded, nothing prohibits it from accepting such briefs the silence in the language of the applicable law notwithstanding.13
Undeniably, the Appellate Body contributed to this mess by inventing interpretations of Art. 13 DSU which are unsustainable under the Vienna Convention on the Law of Treaties, moving into Art. 16(1) of its Working Procedures and not referring, right from the start, to due process. Its initiative however, did give the WTO a momentary (it seems) new lease of life: some eyebrows were raised and people beyond government circles noted with interest that the WTO does not want to live in clinical isolation from the rest of the world anymore.
All this trouble created following the Appellate Body's initiative in the Asbestos case is Much Ado About Nothing. Panels might still get flooded with unsolicited briefs. Appellate Body members will continue (hopefully) to be exposed to points of view expressed in the modern world. So, why all this fuss? Probably it reflects the fact that delegations in Geneva are not preoccupied with other more serious business. The new round cannot come soon enough ...
10 Japan - Measures Affecting Agricultural Products, WT/DS76/AB/R, 22 February 1999.
11 For a critical view of the way the Appellate Body has handled this issue, see Appleton (2000). Howse (2000) and (2001) on the other hand, places the accent on the need to have thoughtful opinions and engages in parallels with the concept of deliberative democracy. In these two papers, Howse makes a persuasive case that not only political but also legal considerations should not cast doubt on the way the Appellate Body initially at least handled the issue of amicus curiae briefs.
12 In Wheat Gluten, the Appellate Body, against the unambiguous wording of the WTO Safeguards Agreement (Art. 4.2) held for the proposition that it suffices that imports are one and not the exclusive cause of injury. Contingent protection will not look the same from now on, unless this interpretation is corrected.
13 Art. 15(1) of the UNCITRAL Arbitration Rules, which was applied in the case at hand requests from adjudicating bodies to conduct judicial review in the manner they deem appropriate respecting due process. There is no explicit reference to amicus curiae briefs.