Who participates as amicus curiae in World Trade Organisation dispute settlement and why?

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Abstract

Following criticism of the closed and confidential character of dispute settlement at the World Trade Organisation (WTO), in 1998 the Appellate Body controversially recognised its own and the panels' discretionary authority to admit amicus curiae briefs submitted by civil society. While supporters of their inclusion welcomed the decision as a much-needed reform that would improve the quality and legitimacy of decisions, many developing states remain opposed on the grounds that it favours participation by civil society from developed countries and further entrenches their interests and priorities. Despite the extensive literature around the WTO amicus curiae, there has been no close and systematic analysis of who participates as amici curiae and whose interests are represented. This article fills that gap. I classify the 99 amici curiae submissions from 162 civil society participants made in disputes reported between 1996 and 2014 according to their interest type and geopolitical background to provide an empirical basis on which to discuss these questions. Of particular concern is whether amicus curiae participation enables the presentation of public interest perspectives and whether these presentations include civil society from developing countries. I argue that while the identified patterns of civil society participation point to the dominance of a group of key repeat-players from developed countries, their submission of joint amicus briefs with NGOs from developing countries indicates the potential for amicus curiae participation to widen the knowledge bases and perspectives presented in WTO dispute settlement.
Original languageEnglish
Article number6
Pages (from-to)337-364
Number of pages28
JournalNew Zealand Universities Law Review
Volume27
Issue number2
Publication statusPublished - Dec 2016

Keywords

  • Civil society, WTO, international trade law, dispute settlement, amicus curiae

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