Opening the Doors or Skewing the Balance: Amicus Curiae in the WTO and the Quest for Equitable Justice

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.