Articles pertaining to the WTO

G Marceau and M Stilwell: Practical Suggestions for Amicus Curiae Briefs Before WTO Adjudicating Bodies, Journal of International Economic Law, Volume 4, Issue 1 (JIEL 4(1) 2001), pp. 155-187: Abstract:

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.

AE Appleton: Amicus Curiae Submissions in the Carbon Steel Case: Another Rabbit From the Appellate Body's Hat?, Journal of International Economic Law, Volume 3, Issue 4 (JIEL 3(4) 2000), pp. 691-699; Abstract:

In the Carbon Steel decision, the Appellate Body finally explains its legal authority to accept amicus curiae submissions. From a legal perspective this explanation is neither entirely satisfactory nor convincing, raising questions concerning the manner in which the Appellate Body exercises the authority vested in it by the Members. Despite possible misgivings among the Members, because of the automaticity principle, amicus curiae submissions are here to stay. There is therefore a need to establish rules and a timetable governing the Appellate Body's treatment of such submissions

Issues of Amicus curiae submissions: note by the editors, Journal of International Economic Law, Volume 3, Issue 4 (JIEL 3(4) 2000), pp. 701-706.

AE Appleton: Shrimp/Turtle: Untangling the Nets, Journal of International Economic Law, Volume 2, Issue 3 (JIEL 2(3) 1999), pp. 477-496: Abstract:

The Appellate Body's decision in the Shrimp/Turtle case has important political, systemic and procedural implications for the WTO and its dispute settlement system. From a political perspective this decision satisfies a public relations objective - reducing the distrust of the WTO which exists in the environmental community. This task is accomplished without seriously compromising the trade rights guaranteed under the WTO Agreement. From the systemic and procedural perspective, this decision clarifies certain points concerning the legal requirements of a notice of appeal and the right of non-members to make submissions to panels. However, the decision also raises questions concerning the scope of the Appellate Body's review powers, the manner in which GATT Article XX(g) and chapeau should be interpreted, the authority of the Appellate Body to consider non-member submissions, and possible inadequacies in the Dispute Settlement Understanding.

Denise Prévost, "WTO Subsidies Agreement and Privatised Companies: Appellate Body Amicus Curiae Briefs", Legal Issues of Economic Integration, Volume 27 (3) (2000).

Reactions pertaining to the EC Asbestos decisions

• Joint Statement, 14 March 2001 of FIELD, IBAS, Greenpeace, WWF: NGOs Welcome AB Asbestos Decision but Remain Skeptical on WTO Dispute Settlement Process.
  
  
• THE WTO: WHO NEEDS FRIENDS? by Laurie Kazan-Allen, November 2000.

Monographs

Lee Epstein, Courts and Interest Groups, in THE AMERICAN COURTS: A CRITICAL ASSESSMENT 335, 345 (John B. Gates & Charles A. Johnson eds., CQ Press, 1991). Available at Law Library

JAMES W. MOORE ET AL., 20A MOORE'S FEDERAL PRACTICE, §329.01 (Mathew Bender, 3d ed.). Available at Law Library

STEVEN PURO, THE ROLE OF AMICUS CURIAE IN THE UNITED STATES SUPREME COURT: 1920-1966, (Ph.D. Dissertation, State University of New York at Buffalo, 1971).

Steven Puro, The United States as Amicus Curiae, in COURTS, LAW, AND JUDICIAL PROCESSES 220 (S. Sidney Ulmer ed., Free Press, 1981). Available at law library

REAGAN W. SIMPSON, THE AMICUS BRIEF : HOW TO WRITE IT AND USE IT EFFECTIVELY (Tort and Insurance Practice Section, American Bar Association, 1998) Available at law library

ROBERT L. STERN ET AL., SUPREME COURT PRACTICE, § 6.40 and § 13.13 (Bureau of National Affairs, 7th ed. 1993). Available at law library

CHARLES A. WRIGHT, ET AL., 16A FEDERAL PRACTICE AND PROCEDURE § 3975.1 (West Group, 3d ed. 1999). Available at Law Library

Articles in General

Lucius Barker, Third Parties in Litigation: A Systemic View of the Judicial Function, 29 J. POL. 41 (1967).

Robert C. Bradley & Paul Gardner, Underdogs, Upperdogs and the Use of the Amicus Brief: Trends and Explanations, 10 JUST. SYS. J. 78 (1985).

Gregory A. Caldeira & John R. Wright, Amici Curiae Before the Supreme Court: Who Participates, When, and How Much?, 52 J. POL. 782 (1990).

Gregory A. Caldeira & John R. Wright, Organized Interests and Agenda Setting in the Supreme Court, 82 AM. POL. SCI. REV. 1109 (1988).

Bruce J. Ennis, Effective Amicus Briefs, 33 CATH. U. L. REV. 603 (1984).

Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743 (2000).

Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 YALE L.J. 694 (1963).

Michael K. Lowman, The Litigating Amicus Curiae: When Does the Party Begin After the Friends Leave?, 41 AM. U. L. REV. 1243 (1992).

Ellis Margolis, Beyond Brandeis: Exploring the Uses of Non-legal Materials in Appellate Briefs, 34 U. S. F. L. REV. 197 (2000).

Karen O'Connor & Lee Epstein, Amicus Curiae Participation in U.S. Supreme Court Litigation: An Appraisal of Hakman's "Folklore," 16 LAW & SOC. REV. 311 (1981-82).

Stephen A. Plass, The Foreign Amici Dilemma, 1995 BYU L. REV. 1189.

Donald R. Songer & Reginald S. Sheehan, Interest Group Success in the Courts: Amicus Participation in the Supreme Court, 46 POL. RES. Q. 339 (1993).