Amicus curiae participation in WTO dispute settlement: reflections on the past decade

Abstract

Introduction The advent of the WTO has triggered countless debates regarding sovereignty. The process of conforming domestic laws for the purpose of WTO accession and the obligation to comply with a dispute panel or Appellate Body decision have both fuelled fears that an international organization such as the WTO compromises Members' domestic authority and international sovereignty. Amicus curiae participation in WTO disputes has been evolving against this context. Amicus curiae participation has been described by critics as inappropriately elevating the status of private actors – no matter how big or small – to that of a government. In contrast, proponents of amicus curiae participation argue that transparency and participation will strengthen public support for the WTO, and thus ultimately strengthen the institution. As we review this issue at the tenth anniversary of the WTO, the jurisprudence and experience to date should silence the initial fears. The nightmare scenarios simply have not become reality. Like other international tribunals, WTO dispute panels and the Appellate Body have displayed active restraint in accepting and considering amicus curiae briefs. The WTO adjudicative bodies have respected the pre-eminence of the WTO Members themselves, quieting the fear that the sovereignty and interests of each Member will be hijacked by the views of private actors through the medium of amicus briefs.