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Membership and its Privileges: the WTO, Civil Society, and the Amicus Brief Controversy



Abstract: In a series of rulings, beginning with the notorious Shrimp/Turtle dispute, the high court of the WTO, the so-called Appellate Body, has ruled that it, as well as the panels of first instance, may, on a discretionary basis, accept and consider amicus curiae briefs from, inter alia, non-governmental organisations and private individuals. This has been highly controversial and subject to wide and intense criticism by trade diplomats who are the political representatives of WTO Member states in Geneva; the officials have reacted with anger and hostility to the notion that governments are not exclusive gatekeepers of access to the WTO dispute settlement tribunals. This article shows that the decision that amicus briefs are admissible at the discretion of the adjudicator has a sound basis in the legal framework for WTO dispute settlement, as well as conforming to trends in the practice of international courts and tribunals more generally. The article examines various ‘due process’ issues concerning the modalities for acceptance and consideration of amicus briefs and how they have been so far dealt with by the Appellate Body, as well as how they are handled in certain proposals for reform of the legal framework of WTO dispute settlement, the Dispute Settlement Understanding (DSU).