Résumé
The admittance of amicus curiae briefs in the US-Shrimp/Turtle dispute in 1998 stirred a debate among WTO Member States whether the dispute settlement procedure should be accessible for private individuals and entities. Developing countries firmly opposed the inclusion of amid curiae into the Disupute Settlement Understanding (DSU) and repeated their arguments frequently in cases leading to amicus submissions, fearing a further shift of power in favour of developed countries and changes in the nature of the dispute settlement system. The present article examines these concerns in light of the experience made with amicus submissions in 21 disputes. It will be argued that most of the fears expressed by developing countries are ungrounded and often base on wrong assumptions.
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Extrait
Amicus Curiae in the Wto Dispute Settlement Procedure: A Developing Country's Foe?
1 Introduction
"Imagine how you'd feel if your organization managed to convince your ... state legislature ... to enact a decent law. Then a foreign government or corporation challenged the law as illegal under international trade rules. The next thing you know, a special trade court closed to the public could decide that the law should be eliminated or weakened.It can happen. It has happened.It is called the World Trade Organization."(FRIENDS OF THE EARTH 2005, p. 4)The problem, here presented in a dramatic manner by the global environmental organization FRIENDS OF THE EARTH, is as old as the World Trade Organization's (WTO) dispute settlement procedure: representatives of the civil society challenge it as secretive and unresponsive to social concerns. As multilateral trading standards increasingly collide with different countries' legislation, nongovernmental organizations (NGOs) demand the possibility to defend a State's public choices before the panels and the Appellate Body (AB). A first step towards what some might term a more open and accessible WTO took the latter in its revolutionary ruling in US-Shrimp/Turtle: private individuals and entities now may express their opinion on a case as amid curiae.The European Communities (EC) as well as the United States (U.S.) welcomed the AB's decision, whereas developing countries feared to be put at a disadvantage in comparison to potential amid. In view of the twenty-one cases which have reached either a panel or the AB and which caused external parties to file an amicus brief, this paper inquires to what extent the fears of developing countries have been justified and whether amid curiae are indeed inimici of developing countries. After covering in the first two chapters the legal background and the reasons forwarded in the debate for and against amid, the focus lies on the analysis of the relevant disputes and the lessons that can be drawn from them. Thereby this paper contributes to the current debate firstly by giving an overview of all amicus cases and reviewing them from a developing country's perspective. Secondly and more importantly, Chapter V analyses concerns of developing countries relating to power or systemic issues, and shows why they were or were not confirmed in the past cases.2 Amicus curiae at the WTO: A Short Legal Introduction2.1 Amicus curiae DefinedAmid curiae, literally 'friends of the Court', functioned in Ancient Rome as an aide mémoire to the judges who did not dispose of today's means of information gathering (UMBRICHT 2005). Nowadays mainly a procedural feature of common law courts, notably of the U.S. Supreme Court, amicus briefs are still filed by a private person or entity not involved in the respective dispute (UMBRICHT 2005). But instead of acting as a neutral party only interested in a just outcome, today's amid curiae try to highlight factual or legal aspects associated with their specific concerns or interests. MAVROIDIS formulated this trait of amid more drastica...Voir le contenu complet de ce document
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