Common Approaches to Amicus Curiae Submissions in ICTs [2]: The Power to Accept AC Briefs

In what ways, if any, might unsolicitednamicus curiae submissions assist an international court or tribunal inndetermining the case before it? To what extent do you consider the currentnrules appropriate? Is there any justification for creating common approaches tonthe treatment of such submissions across different international courts andntribunals?

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See also: Common Approaches to Amicus Curiae Submissions in ICTs [I]

Note: this essay will consider the participationnof non-governmental organizations as non-party amicus curiae to furnish informationnto the courts or tribunals.

The first issue to be considered is whetherncommon approaches exist as to whether ICTs have the power or even duty tonaccept submissions by non-parties (especially NGOs).Governing instruments of some ICTs either explicitly prohibitnor allow submission of amicus curiae briefs (by NGOs). In ICJ, ITLOS, for example, only intergovernmentalnorganizations can make amicus-type submissions.While Rules of procedure of internationalncriminal tribunal explicitly allow amicus curiae briefs by non-parties (RulenArt. 74 of RPE of ICTY/R, Rule 103 of RPE of ICC) and governing instruments ofnhuman rights courts (ECHR Art. 36(2)).

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What is controversial is whether othernICTs, the governing instruments are silent about whether amicus curiaensubmissions are allowed or prohibited, has such a power. There are generallyntwo approaches as demonstrated by WTO DSB panels and Appellate Bodies and NAFTAntribunals in this regard. The first approach is based on general terms for thentribunals to seek information from any sources relevant to the dispute (eg.nArt. 13 of DSU). In US-ImportnProhibition of Certain Shrimp and Shrimp Products, for example, the ABnrejected the finding by the panel (which treated Art. 13 to mean that amicusncuriae briefs may only be accepted upon request by the penal or be integratednin the submissions of parties) and found that a panel has a discretion tonaccept amicus curiae briefs regardless of whether such briefs are requested bynit. The same ruling can be found in Argentina-MeasuresnAffecting Imports of Footwear, Textiles, Apparel and Other Items. Innrelation to the power to accept amicus curiae briefs by the Appellate Body, thenapproach is different, it is based on the general terms authorizing AB to adoptnprocedural rules not inconsistent with DSU or other agreements concerned. In Lead and Bismuth case, fornexample, the AB, based on Art. 17.9 of DUS which confers its power to issuenfill gaps in procedural rules, found that although it has no duty to acceptnamicus curiae briefs (as they are not parties to the dispute), it nonethelessnhas the discretion to accept or consider them. A similar approach is adopted innNAFTA arbitral tribunals. In Methanexnv. USA, for example, the tribunal found its discretion to accept amicusncuriae briefs based on Art. 15(1) which intends to provide the broadestnprocedural flexibility within fundamental safeguards. Like Lead and Bismuth case, it stressed that it has no power tongrant party status to amicus curiae but accepting amicus curiae briefs is notnequivalent to granting them party status. The ruling in Methanex case was laternconfirmed again by UPS v. Canada,nwhich restates that accepting amicus curiae briefs is a matter of power by thentribunal rather than a duty as amicus curiae is not a party to the arbitration.nBased on the above analysis, several common features can be found in relationnto ICTs』 power to accept amicus curiae briefs. Firstly, amicus curiae arenallowed to submit their briefly only as non-parties, they do not enjoy the statusnand accompanied privileges as parties (i.e. the ICTs have no duty to acceptntheir submissions, they have not right to request briefs submitted by partiesnor participate in oral proceedings). Secondly, except the ICJ and ITLOS, mostnother ICTs either explicitly allow amicus curiae submissions or find they havendiscretion to accept amicus curiae briefs based on general terms of thengoverning instruments. A third common factor is that amicus curiae should alwaysnin some way assist the court in addressing the disputes before it, and if thencourts found the amicus curiae unnecessary, they are free to reject thensubmissions.

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