Joseph Keller


In today’s increasingly interdependent global society, international institutions formerly committed to operating as insular systems recognizing only states as legitimate participants have come under pressure to open their processes to public view and participation. The World Trade Organization (WTO) in particular has been widely criticized for its lack of transparency and democratic participation. Nowhere has this criticism been more prevalent than in the arena of dispute settlement. The controversy over the acceptance of amicus briefs at the WTO reflects the tensions among WTO members and non-members concerning greater public access to dispute settlement proceedings. This battle has been fought primarily through the Appellate Body and its important series of decisions on amicus briefs.

Panels and the Appellate Body govern dispute settlement at the WTO. Panels are established by the Dispute Settlement Body, which consists of all WTO members. Panels are essentially tribunals, and consist of three or sometimes five experts from different countries who render decisions in a given trade dispute between member states. Members of a panel are chosen in consultation with the countries that are parties to a dispute (if the parties cannot agree, the WTO director-general appoints them). Panelists serve in their individual capacities and cannot receive instructions from any government. A party may appeal the ruling of a panel to the Appellate Body. There are seven members of the Appellate Body, and each member serves a four-year term. These individuals are experts in the area of trade law and must not be affiliated with any government. Three members of the Appellate Body hear each appeal of a panel ruling.

This article argues in favor of increased amicus participation in WTO dispute settlement and is divided into four parts. Part I briefly examines the history of Appellate Body decisions concerning amicus briefs. Part II examines the significant new developments in the Sardines case, including the acceptance of amicus briefs from governments that are non-parties to a dispute. Part III explains why amicus practice is desirable at the WTO and analyzes some important procedural suggestions for handling the submission of amicus briefs. Part IV proposes and evaluates new possibilities for amicus participation in WTO dispute settlement. These new possibilities include participation by government agencies and international organizations, and the emergence of a category of briefs relied upon by the panels and Appellate Body.