The WTO Appellate
Body’s (AB’s) acceptance of an amicus curiae brief in the landmark US-Shrimp
case raised a debate over the legitimacy of such briefs under the WTO dispute
settlement mechanism. Proponents of permitting non-governmental organizations
(NGOs) to make briefs as amicus curiae participation highlight the expertise
offered by NGOs, increased transparency and enrichment of dialogue as grounds
to justify their presence. It has also been argued that NGOs have greater
freedom than the governments, and therefore comprehensively enhance the dispute
proceedings. Such arguments have been vehemently opposed by developing
countries such as India, Brazil, and Pakistan, which cite the systemic bias
which would creep in by allowing the NGOs to act as amicus curiae. This is
because of the disproportionate influence and funding which the NGOs in the
Global North possess relative to such organizations in the developing
countries. Concerns have also been raised over the increased administrative
burden on the Secretariat and the absence of a well-defined procedure to permit
briefs to the Panel. Reference is made to the General Council Meeting of 22
November 2000 and the Guidelines laid down by the General Council for Relations
with NGOs in 1996. The absence of a functioning AB further merits re-evaluation
of procedural mechanisms, including those relating to amicus curiae, to assess
whether it can play a role in addressing institutional lacunas while protecting
the member-driven WTO framework.
The present article
examines the necessity and permissible scope of NGOs as amicus curiae in WTO
proceedings. This is done in light of the role served by the amicus curiae in
the broader framework of public international law (PIL), assessing the benefits
and concerns raised in institutions such as International Court of Justice
(ICJ), International Tribunal for the Law of the Sea (ITLOS) and European Court
of Human Rights (ECHR), where amicus curiae briefs are accepted. Relevant GATT
1994 and Dispute Settlement Understanding (DSU) provisions are analysed.
Special emphasis is laid over Article 13 of the DSU, which enables the Panel to
seek information from ‘any individual or body’ it deems fit, and Article 12.1
which allows for deviance from the procedure under Appendix 3 and thereby
permits even unsolicited advice to be entertained. This is done keeping in view
the concept of state sovereignty in international law, and the member-oriented
framework of the WTO. Additionally, jurisprudence from cases like EC – Asbestos
and US – Lead and Bismuth II is scrutinized, along with diverse scholarly
perspectives. A distinction is drawn between the binding briefs of WTO experts
as amicus curiae under Article 4.5 of the Agreement on Subsidies and
Countervailing Measures and the DSU provisions. Ultimately, the article
explores how the current DSU system could achieve a balance between the
potential benefits and risks of amicus curiae briefs, seeking to improve WTO
dispute settlement for all parties involved.