Common Approaches to Amicus Curiae Submissions in ICTs [I]

In what ways, if any, might unsolicitednamicus curiae submissions assist an international court or tribunal inndetermining the case before it? Is there any justifications for creating commonnapproaches to the treatment of such submissions across different internationalncourts and tribunals?

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Reference: Ruth Makenzie, 『The Amicus Curiae innInternational Courts: Towards Common Approaches?』 , in T. Treves et al. eds, 『CivilnSociety, International Courts and Compliance Bodies』, 2005.

The common approaches to amicus curiaensubmission arise from the need in almost all ICTs to balance differentnfunctions of international adjudication. On one hand, amicus curiae participationnrepresents the socializing function of international adjudication by considering broader interest more than that of parties tonthe dispute, and it may also be important in enhancing the legitimacy and transparencynof international adjudication. One the other hand, it may cause tension to thenother function. For example, many objectors to amicus curiae submissions would arguenthat it by allowing non-party participation changes the nature of internationalnadjudication, extending it beyond the function of solving disputes betweennparties. Under this background, this essay will firstly analyse the objectionsnto amicus curiae submissions before consideringnto what extent common procedural approaches exist to balance as a way to balance the negative sides against thenpositive sides of amicus curiae.

I. Concerns in relation to negative sidesnof amicus curiae submissions

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Several objections of the need of amicusncuriae submissions should be considered to before addressing common approaches.nFirst, the necessity of amicus curiae briefs may be questioned, as thennecessary information required by the court could either be submitted bynparties or the court may request assistance from experts if it needs. Often,nthe submissions made by amicus curiae just duplicate the submissions of one party.nThus, it might be necessary to have some common approaches to filter thosenunnecessary submission. Secondly, amicus curiae briefs may add extra burden onnboth the court and the parties and influence the efficiency of disputensettlement (this is particularly important for WTO, as efficiency and speed arenconsidered central attributes to WTO dispute settlement system). For example,nthe doubt is raised in Mathanex v. USAnthat the large amount of amicus curiae submissions in favour of one party mayncause negative effects on the other party. Thus the common approaches mightnneed to consider restrictions on, among others, the scope, length, language ofnthe amicus curiae submissions. The third doubt is about identity of potentialnamicus curiae. Concerns in this regard have been raised by some developingnstates in the context of WTO who might worry about the resources needed tonrespond to amicus curiae submitted by well-resourced 『Northern』 NGOs. Thenidentity of amici would also raise other problems, such as potentialnpoliticization of the dispute settlement process, interests represented by thenamici (eg. some amicu curiae submissions may seems only intend to lobby orncampaign certain interest), or even may influence the impartiality of the courtn(eg. in Furundzija case, judge Mumba』s previous link with one of the amicinraise doubt on her impartiality). Thus common approaches to amicus curiaensubmissions should consider what kind of individuals and qualifications arenqualified to make submissions. The final concern of amicus curiae submissionsnis about confidentiality and transparency. Amicus curiae submissions may be anproblem in proceedings which were designed not to be open to public (eg.nArbitration). For example, in Mathanexnv. USA, it is argued that based on the agreements of confidentiality, somendocuments should not be made available to NGOs seeking to submit amicus curiaenbriefs. In UPS v. Canada, thenamici argued that they were prejudiced from specifying their interest clearlyndue to the unavailability of particular claims of the parties. Thus, commonnapproaches should cover procedures to balance between the competing demands of confidentialityn(e.g. to protect commercial secrets) and interest of the public.

II. Common approaches in response to the negative sides of AC

A. Filtering Mechanism

Filtering mechanism is generally adopted by ICTs whennaccepting amicus curiae briefs. It will address a number of issues, such asninterest and expertise of the potential amicus, the potential value of thenamicus curiae to the court, etc. (Mathanex case) The filtering mechanism adopted by ICTs have common features as follows:

Firstly, the filtering mechanism generally requires that the amicusncuriae submissions will add some benefits to the court. For example, ECtHR requires that AC to be 『in the interest of proper administration of justice』 (ECHR,nArt. 36(2)) For ICCs, it is required that AC is 『desirable for proper determination of the case 『 (Guidancenissued by the ICTY) In, WTO AB Asbesto Additional Procedure, it require the AC to specify why it would be desirable innsatisfactorily settlement of dispute.

Secondly, filtering mechanism generally requires that the submissionnwill not simply duplicate evidence or arguments submitted by parties (eg. UPS v. Canada, Asbesto Additional Procedure)

Thirdly, where filtering mechanism exists, an accompanied questionnwill arise as to whether the parties to the dispute should be given annopportunity to respond. In almost all ICTs where AC is accepted, parties havensuch a right. (eg. ECHR, NAFTA Statement of Free Trade Commission, ICTR, Additional Procedure by WTO AB in Asbesto)

However, when it comes to right of amici to receivenresponse,as it pointed out in the UPS v. Canada and Methanex v. USA, AC is not parties to the dispute can shall not enjoy privileges given to the parties. However, failure to grant response to AC gave rise to criticism in Asbesto.

As a result, amicu curiae briefs could introduce public interest beyond thatnof the parties to the proceedings, while they also add burdens to the partiesnto the dispute, thus filtering mechanism is adopted as a common approach tonbalance the public interest and burdens on the parties and the court.

2. Procedural rules to clarify thenrole of amicus curiae brief

Common procedures may be needed to address issues like rightnof parties to respond, whether the court must address the claims, whether thencourt must specify the its consideration of the amicus curiae brief in the judgmentnetc. Asbesto procedure in WTO answers the questions in negative. It is the samenwith other WTO practice (eg. Bismuth and Lead). However, by contrast, some humannright courts have referred specifically to amicus curiae submissions in theirnjudgments.

3. Identity of the amicus curiae:ndisclosure of interests and affiliations

Filtering mechanism may also address thenidentity of the potential amicus curiae by considering their qualifications,nexpertise, interests. Some domestic proceeding to AC, Eg. disclose authorshipnand funding, is used in WTO proceedings (Asbestos). ICTY also requires the amicusncuriae to demonstrate and explain any relationship with the parties to thencase. Same with the statement of Free Trade Commission (para. 3(d) and (e)).

4. Other common procedures

Common approaches also exist in providing time limits, limits of scope and nature, potential subject matter of submission, lengths, languages used in the AC submissions, etc. The cost of AC submission is also addressed by some ICTs (eg. ICTY requires AC to meet its own cost, while WTO DSU provides a fund to assist AC). Common approach also exists to address confidentiality and transparency. Eg. in Mathanex, the tribunal found AC no right to receive pleadings of parties while either party is at liberty to disclose. the approach is also used in many other proceedings not open to the public. (UPS v. Canada).

To conclude, the need for common approaches arise from the need to balance different functions of AC and ICTs, as well as balancing the positive and negative sides of AC submissions.