Common Approaches to Addressing Amicus Curiae Submission in International Courts and Tribunals

An amicus curiae is someone who is not a party to a case, but who assists a court by offering information that bears on the case. The common approaches to amicus curiae submission are related to the need in almost all International Courts and Tribunals (ICTs) to balance different functions of international adjudication. On one hand, amicus curiae participation represents the socializing function of international adjudication by making ICTs consider broader interest than that of parties to the dispute, and it may also be important in enhancing the legitimacy and transparency of international adjudication. One the other hand, it may cause tension to the other functions. For example, many objectors to amicus curiae submission would argue that by allowing non-party participation it changes the nature of international adjudication, extending it beyond the function of solving disputes between parties. Against this background, the essay will firstly consider whether common approaches exist as to whether ICTs have the power or even duty to accept submissions by non-parties (especially NGOs). Then the essay will address the negative sides of amicus curiae submissions before considering to what extent common procedural approaches exist as a way to balance the negative sides against the positive sides of amicus curiae submission.

Common Approaches to Accepting Amicus Curiae Submissions

Governing instruments of some ICTs either explicitly prohibit or allow submission of amicus curiae briefs (by NGOs). In ICJ, ITLOS, for example, only intergovernmental organizations can make amicus-type submissions, while Rules of Procedure of international criminal tribunals (Rule Art. 74 of RPE of ICTY/R, Rule 103 of RPE of ICC) and governing instruments of human rights courts (ECHR Art. 36(2)) explicitly allow amicus curiae briefs by non-parties.

What is controversial is whether other ICTs, the governing instruments of which are silent about whether amicus curiae submissions are allowed or prohibited, have such a power. There are generally two approaches as demonstrated by panels of WTO DSB and Appellate Bodies and NAFTA tribunals in this regard. The first approach is based on general terms for the tribunals to seek information from any sources relevant to the dispute (eg. Art. 13 of Dispute Settlement Understanding [DSU]). In US-Import Prohibition of Certain Shrimp and Shrimp Products, for example, the Appellate Body rejected the finding by the panel (which treated Art. 13 of DSU to mean that amicus curiae briefs may only be accepted upon request by the panel or be integrated in the submissions of parties) and found that a panel has a discretion to accept amicus curiae briefs regardless of whether such briefs are requested by it. The same ruling can be found in Argentina-Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items. In relation to the power to accept amicus curiae briefs by the Appellate Body (AB), the approach is different; it is based on the general terms authorizing AB to adopt procedural rules not inconsistent with DSU or other agreements concerned. In Lead and Bismuth , for example, the AB, based on Art. 17.9 of DSU which confers its power to issue fill gaps in procedural rules, found that although it has no duty to accept amicus curiae briefs (as they are not parties to the dispute), it nonetheless has the discretion to accept or consider them. A similar approach is adopted in NAFTA arbitral tribunals. In Methanex v. USA, for example, the tribunal found its discretion to accept amicus curiae briefs based on Art. 15(1) which intends to provide the broadest procedural flexibility within fundamental safeguards. Like Lead and Bismuth, the tribunal stressed that it has no power to grant party status to amicus curiae but accepting amicus curiae briefs is not equivalent to granting them party status. The ruling in Methanex v. USA was later confirmed again by UPS v. Canada, which restates that accepting amicus curiae briefs is a matter of power by the tribunal rather than a duty, as amicus curiae is not a party to the arbitration.

Based on the above analysis, several common features can be found in relation to ICTs』 power to accept amicus curiae briefs. Firstly, amicus curiae are allowed to submit their briefs only as non-parties, they do not enjoy the status and accompanied privileges as parties (i.e. the ICTs have no duty to accept their submissions, and amicus curiae have not right to request briefs submitted by parties or participate in oral proceedings). Secondly, except the ICJ and ITLOS, most ICTs either explicitly allow amicus curiae submissions or find they have discretion to accept amicus curiae briefs based on general terms of the governing instruments. A third common factor is that amicus curiae should always in some way assist the court in addressing the disputes before it, and if the courts found the amicus curiae unnecessary, they are free to reject the submissions.

Concerns in Relation to Negative Sides of Amicus Curiae Submissions

Several objections of the need of amicus curiae submissions should be considered before considering whether common approaches should exist to balance the positive and negative sides of amicus curiae. Firstly, the necessity of amicus curiae briefs may be questioned, as the necessary information required by the court could either be submitted by parties or the court may request assistance from experts if it needs. Often, the submissions made by amicus curiae just duplicate the submissions of one party. Thus, it might be necessary to have some common approaches to filter those unnecessary submissions. Secondly, amicus curiae briefs may add extra burden on both the court and the parties and influence the efficiency of dispute settlement (this is particularly important for WTO, as efficiency and speed are considered central attributes to WTO dispute settlement system). For example, the doubt was raised in Mathanex v. USA that the large amount of amicus curiae submissions in favour of one party may cause negative effects on the other party. Thus the common approaches might need to consider restrictions on, among others, the scope, length, and language of the amicus curiae submissions. The third doubt is about identity of potential amicus curiae. Concerns in this regard have been raised by some developing states in the context of WTO who might worry about the resources needed to respond to amicus curiae submitted by well-resourced 『Northern』 NGOs. The identity of amici would also raise other problems, such as potential politicization of the dispute settlement process, interests represented by the amici (eg. some amicus curiae submissions may seems only intend to lobby or campaign certain interest), or even may influence the impartiality of the court (eg. in Furundzija, judge Mumba』s previous link with one of the amici raised doubt on her impartiality). Thus common approaches to amicus curiae submissions should consider what kind of individuals and qualifications are qualified to make submissions. The final concern of amicus curiae submissions is about confidentiality and transparency. Amicus curiae submissions may be a problem in proceedings which were designed not to be open to public (eg. Arbitration). For example, in Mathanex v. USA, it is argued that based on the agreements of confidentiality, some documents should not be made available to NGOs seeking to submit amicus curiae briefs. In UPS v. Canada, the amici argued that they were prejudiced from specifying their interest clearly due to the unavailability of particular claims of the parties. Thus, common approaches should cover procedures to balance between the competing demands of confidentiality (e.g. to protect commercial secrets) and interest of the public.

Common Approaches in Response to the Negative Sides of Amicus Curiae Submissions

1. Filtering Mechanism

Filtering mechanism is generally adopted by ICTs when accepting amicus curiae briefs. The mechanism will address a number of issues, such as interest and expertise of the potential amicus, the potential value of the amicus curiae to the court, etc. (Mathanex v USA) The filtering mechanism adopted by ICTs have common features as follows:

Firstly, the filtering mechanism generally requires that the amicus curiae submissions will add some benefits to the court. For example, ECtHR requires that amicus curiae to be 『in the interest of proper administration of justice』 (ECHR, Art. 36(2)) For ICCs, it is required that amicus curiae is desirable for 『proper determination of the case』 (Guidelines issued by the ICTY, para 4(f)). In Asbesto Additional Procedure issued by WTO AB, it requires the amicus curiae to specify why it would be desirable in satisfactorily settlement of dispute.

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

Thirdly, where filtering mechanism exists, an accompanied question will arise as to whether the parties to the dispute should be given an opportunity to respond. In almost all ICTs where amicus curiae brief is accepted, parties have such a right. (eg. ECHR, NAFTA Statement of Free Trade Commission, ICTR, Additional Procedure by WTO AB in Asbestos)

However, when it comes to right of amici to receive response, as it pointed out in the UPS v. Canada and Methanex v. USA, amicus curiae are not parties to the disputes, thus shall not enjoy privileges given to the parties. However, failure to grant response to amicus curiae gave rise to criticism in Asbestos.

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

2. Procedural rules to clarify the role of amicus curiae brief

Common procedures may be needed to address issues like right of parties to respond, whether the court must address the claims, whether the court must specify the its consideration of the amicus curiae brief in the judgment etc. Asbesto procedure in WTO answers the questions in negative. It is the same with other WTO practice (eg. Bismuth and Lead). However, by contrast, some human right courts have referred specifically to amicus curiae submissions in their judgments.

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

Filtering mechanism may also address the identity of the potential amicus curiae by considering their qualifications, expertise and interests. Some domestic proceedings to amicus curiae (eg. disclosure of authorship and funding) are used in WTO proceedings (Asbestos). ICTY also requires the amicus curiae to demonstrate and explain any relationship with the parties to the case, which is the 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 amicus curiae submissions etc. The cost of amicus curiae submission is also addressed by some ICTs (eg. ICTY requires amicus curiae to meet its own cost, while WTO DSU provides a fund to assist amicus curiae). Common approaches also exist to address confidentiality and transparency. For example, in Mathanex, the tribunal found amicus curiae have 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 amicus curiae and ICTs, as well as balancing the positive and negative sides of amicus curiae submissions.

References:

-tRuth Mackenzie, 『The Amicus Curiae in International Courts: Towards Common Procedural Approaches?』, in Treves et al (eds.), Civil Society, International Courts and Compliance Bodies (TMC Asser Press: The Hague, 2005)

-tPhillip Sands, 『Reflections on International Judicialization』 (2016) 27 European Journal of International Law 885.

-tICTY, Information Concerning the Submission of Amicus Curiae Briefs, IT/122, 27 March 1997 ("Amicus Curiae Guidelines"), available at: http://www.icty.org/x/file/Legal%20Library/Miscellaneous/it122_amicuscuriae_briefs_en.pdf

-tStatement of the Free Trade Commission on non-disputing party participation, available at: https://www.state.gov/documents/organization/38791.pdf

-tUS-Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS/58/AB/R, 12 October 1999, paras. 99-110, available at: http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds58_e.htm

-tUS – Imposition of Countervailing Duties on Certain Hot Rolled Lead and Bismuth Carbon Steel Products Originating in the UK, Report of the Appellate Body, WT/DS138/AB/R, 10 May 2000, paras. 36-42, available at: dispute settlement - the disputes - DS138

-tWTO, European Communities – Measures Affecting Asbestos and Asbestos-containing Products – Communication from the Appellate Body, WT/DS135/9, 8 November 2000: Additional Procedure Adopted under Rule 16(1) of the Working Procedures for Appellate Review (『Asbestos Additional Procedure』), available via http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds135_e.htm

-tMethanex Corporation v. USA, Decision of the Tribunal on Petitions for Third Persons to Intervene as 「Amici Curiae」, 15 January 2001, available at: http://naftaclaims.com/Disputes/USA/Methanex/MethanexDecisionReAuthorityAmicus.pdf

-tUPS v. Canada, Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae, 17 October 2001 and Procedural Directions for Amicus Submissions, 4 April 2003, available at: http://www.naftalaw.org/disputes_canada_ups.htm

-tAguas Argentinas S.A., Suez, Sociedad General de Aguas de Barcelona, S.A .and Vivendi Universal, S.A. v. Argentine Republic (ICSID Case No. ARB/03/19), Order in Response to a petition for Transparency and Participation as Amicus Curiae, 19 May 2005, available at http://ita.law.uvic.ca/documents/AguasArgentinasVivendiOrderAmicusCuriae.pdf

-tICTY, Prosecutor v. Anto Furundzija, Appeals Chamber, Judgment of 21 July 2000, at paras. 164-215, available at: http://www.icty.org/action/cases/4