The Amicus Curiae and the WTO Dispute Settlement Mechanism (notice n° 565569)
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| Language code of text/sound track or separate title | fre |
| 042 ## - AUTHENTICATION CODE | |
| Authentication code | dc |
| 100 10 - MAIN ENTRY--PERSONAL NAME | |
| Personal name | Zambelli, Mirko |
| Relator term | author |
| 245 00 - TITLE STATEMENT | |
| Title | The Amicus Curiae and the WTO Dispute Settlement Mechanism |
| 260 ## - PUBLICATION, DISTRIBUTION, ETC. | |
| Date of publication, distribution, etc. | 2005.<br/> |
| 500 ## - GENERAL NOTE | |
| General note | 9 |
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| Summary, etc. | One of the most controversial issues related to the dispute settlement mechanism of the WTO is whether panels and the Appellate Body may accept and consider unsolicited submissions received from entities that are not a party or are third party to the dispute. This question is closely linked to the issue of whether private entities, in particular civil society, may participate in WTO dispute settlement procedures, which were originally conceived as an inter-state mechanism. This paper analyzes the current status of amicus curiae as well as possible scenarios for its future development, notably in relation to current WTO negotiations as part of the Doha Round. In a first part, the paper examines the status of amicus curiae as it has been developed in the case rulings by the Appellate Body, starting with US-Shrimp, in which the Appellate Body stated that panels may accept and consider unsolicited submissions, US-Lead and Bismuth II in which the Appellate Body decided that it also has the authority to accept and consider any information it considers pertinent and useful, and the adoption of an additional procedure in EC-Asbestos. Even if the Appellate Body confirmed these rulings again and again, the issue remains highly controversial among WTO member states. In particular, the EC-Asbestos decision provoked a strong reaction among members, which was formally expressed during a special meeting of the General Council of the WTO in November 2000 and led to the well-known crisis of 2001/2002. In fact, amicus curiae as developed by the Appellate Body remains subject to criticism from both a legal and a political point of view. At the same time, it has to be recognized that the real impact of amicus curiae remains modest. The use of unsolicited submissions is very rare in practice, and even in the case of the admission of these submissions in specific cases, their influence on the final decision is limited. As regards possible future developments, the Doha Mandate includes a negotiation on the Understanding on Rules and Procedures governing the Settlement of Disputes. So far, members have been unable to reach agreement on the topics under discussion, probably because the WTO dispute settlement mechanism has shown its ability to deal with disputes. In fact, it is difficult to imagine that the question of amicus curiae will become an item for negotiations in the near future. Therefore, despite the creation of a legal status quo by the Appellate Body, the reality is that both members and the WTO Secretariat face a legal vacuum. Even if the Appellate Body established a set of criteria for amicus curiae, these would remain the subject to criticism by the majority of members. There is a need for general and clear rules on amicus curiae if we are to ensure that unsolicited submissions constitute a positive contribution to the system. In our view, the question is not whether or not amicus curiae should be accepted in the WTO dispute settlement mechanism, though it surely should be if the aim is to improve the participation of private entities and thus contribute to a more democratic international system. Rather, the question is how to elaborate clear rules in order to channel these submissions. In reality, it seems highly improbable that amicus curiae will disappear from the WTO legal system. In any case, should members prove unable to reach an agreement, the Appellate Body might also adopt general rules on the procedure of amicus curiae in cases of disputes between members. |
| 690 ## - LOCAL SUBJECT ADDED ENTRY--TOPICAL TERM (OCLC, RLIN) | |
| Topical term or geographic name as entry element | K 330 |
| 690 ## - LOCAL SUBJECT ADDED ENTRY--TOPICAL TERM (OCLC, RLIN) | |
| Topical term or geographic name as entry element | amicus curiae |
| 690 ## - LOCAL SUBJECT ADDED ENTRY--TOPICAL TERM (OCLC, RLIN) | |
| Topical term or geographic name as entry element | Subject Descriptors ( Econlit Classification System) : F 130 |
| 690 ## - LOCAL SUBJECT ADDED ENTRY--TOPICAL TERM (OCLC, RLIN) | |
| Topical term or geographic name as entry element | K 230 |
| 690 ## - LOCAL SUBJECT ADDED ENTRY--TOPICAL TERM (OCLC, RLIN) | |
| Topical term or geographic name as entry element | dispute |
| 690 ## - LOCAL SUBJECT ADDED ENTRY--TOPICAL TERM (OCLC, RLIN) | |
| Topical term or geographic name as entry element | civil society |
| 690 ## - LOCAL SUBJECT ADDED ENTRY--TOPICAL TERM (OCLC, RLIN) | |
| Topical term or geographic name as entry element | WTO |
| 690 ## - LOCAL SUBJECT ADDED ENTRY--TOPICAL TERM (OCLC, RLIN) | |
| Topical term or geographic name as entry element | transparency |
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| Note | Revue internationale de droit économique | XIX2 | 2 | 2005-06-01 | p. 197-218 | 1010-8831 |
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| Uniform Resource Identifier | <a href="https://shs.cairn.info/journal-revue-internationale-de-droit-economique-2005-2-page-197?lang=en&redirect-ssocas=7080">https://shs.cairn.info/journal-revue-internationale-de-droit-economique-2005-2-page-197?lang=en&redirect-ssocas=7080</a> |
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