Several developing countries have again criticised the dispute panels and the Appellate Body for the way the jurisprudence on accepting amicus curiae briefs was developing, with WTO members being treated less favourably than NGOs.

by Chakravarthi Raghavan

Geneva, 27 July 2000 -- Several developing countries again criticised Thursday at the WTO, the dispute panels (and the Appellate Body) for the way the jurisprudence on accepting amicus curiae briefs was developing, with WTO members being treated less favourably than ‘non-governmental’ organizations.

Hong Kong China, India, Mexico, Malaysia and Australia voiced their systemic concerns and criticisms at the meeting of the Dispute Settlement Body when it adopted the report of the ruling in the dispute over US Copyright law brought by the European Communities.

The panel got a copy of a brief/information provided by one of the law firms in the US to the US Trade Representative’s office, treated it in effect as an amicus curiae brief, and said that while not rejecting outright the information in the letter from the law firm, the panel had not relied on it for its reasoning or findings.

At the DSB meeting, Hong Kong China and India voiced their strong criticism of the way these issues were developing and being handled, with outside actors being treated on a higher footing than even WTO members. Mexico, Malaysia and Australia supported the Indian statement.

The dispute relates to the US Copyright law (Section 10) enabling ‘reproduction’ by a class of establishments of copyrighted music without payment of royalties. A ‘business exemption’ enables three-quarters of all restaurants and bars, and nearly half of all retail stores in the US to play music and television broadcasts in their establishments without paying any royalties to three US collecting societies that authorize reproduction and collect royalties on behalf of owners of such copyrights.

The panel ruled this exemption to be contrary to the WTO obligations of the US, but allowed another exemption enabling establishments that use ‘homestyle’ amplification without payment of royalties.

In the dispute, the 3-member panel received from the legal firm of one of the collection societies (the ASCAP), the copy of a letter it had provided to the US Trade Representative, giving some information asked by the USTR on questions addressed to the US by the panel.

The panel received the copy from the law firm, and forwarded it to both the US and EC (parties to the dispute). The US distanced itself from the views of the ASCAP’s law firm, stressed that it had no probative value for the panel, since it contained no factual data not already provided by either party. However, the US supported the right of private parties to make their views known to WTO dispute panels.

The EC had no substantive comments on the letter, found that no new element had been introduced which was not already submitted by the parties. The EC then cited the Appellate Body ruling in the shrimp-turtle case (where the right of panels to seek information was converted by the Appellate Body into a duty to receive) and said that the authority of the panels was limited to factual information and technical advice by individuals or bodies alien to the dispute, “and thus did not include the possibility for a panel to accept any legal argument or legal interpretation from such individuals or bodies.”

The present panel cited Art.13 of the DSU (about the right of a panel to seek information) and the AB’s ruling in the shrimp-turtle case to the effect that “the authority to seek information is not properly equated with a prohibition on accepting information which has been submitted without having been requested by a panel. A panel has discretionary authority to accept and consider or to reject information and advice submitted to it, whether requested by a panel or not...”(para 108 of the AB report in the US shrimp dispute).

Hong Kong China, in its intervention Thursday at the DSB said that the jurisprudence developing from the shrimp case would open the flood-gates of the dispute settlement system to non-requested information, that will come to it especially from law firms. This would increase the work load of the panels and the system, and reduce efficiency. There were also serious systemic consequences. The non-governmental organizations now seemed to enjoy more rights than the members of the WTO.

India said it had a systemic interest on the issue of amicus curiae briefs that had been dealt with by this panel on the basis of the earlier Appellate Body ruling. India was concerned with the implications of the jurisprudence that was developing on the subject.

“In the shrimp-turtle dispute,” India recalled, “the so-called non-profit benevolent voluntary organizations sought to intervene in the WTO panel proceeding. In the recent Bismuth steel case, a powerful business association sought to intervene. Now, it is the turn of a legal firm representing a business establishment directly interested in the outcome of the panel proceedings, to present a copy of its brief to the panel.”

India recognized that the panel’s decision on the amicus curiae brief in this case was based on the AB’s ruling in the shrimp-turtle case.  The panel had asserted that it would not reject the law firm’s brief, but that it did not consider it because the brief was not addressed to it directly and because the information provided was already available with the panel.

But assuming that the brief had been addressed directly to the panel and that it developed certain legal arguments contrary to those of its national government, or raised altogether a new argument not addressed by parties, “should the panel consider those arguments and determine accordingly?”

The EC (a party to the dispute) India noted had raised this issue, but the panel had not dealt with the question.

At the time of the adoption of the shrimp-turtle ruling in the DSB, on 6 November 1998 (see SUNS #4320), India and several members had questioned the AB’s interpretation of Art.13 of the DSU, especially the meaning of the word “seek”. Again at the meeting on 7 June, when the reports on the US-Bismuth Steel case was adopted (SUNS #4684), excepting for one (the US), all other members of the DSB had expressed strong views on the AB’s treatment and acceptance of amicus curiae briefs.

India shared the concerns now expressed by Hong Kong China on the implications of the jurisprudence that was developing on amicus curiae briefs for the membership as a whole. “It appears to us that in the matter of proceedings before the panels and the Appellate Body, the Members are treated less favourably than the non-governmental organizations,” India said.

If a member wanted to be a third party before a panel, the Member concerned has to reserve its third party rights within 10 days (not 15 days as erroneously reported in SUNS #4718 p 7). If this is not done within the time period stipulated, the Member loses his right to be a third party before a panel. “We know of a Member who made a request to be a third party in a dispute after the lapse of the 10 day period, and was informed that since he did not make a request to be a third party within the stipulated 10 day period, he has lost his right:”

But “no time limit of any kind seems to apply to NGOs submitting amicus curiae briefs to panels. It appears that NGOs can send their briefs to the panel any time during the course of the panel proceedings, and that the panels have the discretion to take them into consideration.”

As for the position of members and NGOs in the Appellate Body proceedings, a Member can be a third party before the Appellate Body, only if it was a third party in the relevant panel proceedings. There was no way a Member could become a third party before the AB if it was not a third party before the panel. India recalled that some delegations had expressed concerns about this situation some time back. There could be a situation where a Member might have concerns about the report of a panel before which it was not a third party. But even in such a situation that Member was not permitted to become a third party before the AB. Moreover, even if a Member is a third party in an appeal by virtue of having been a third party before the relevant panel, the member has an obligation to make written submissions within a time limit prescribed by the AB.

But, “the disciplines which apply to the Members in respect of AB proceedings do not seem to apply to NGOs. An NGO can submit amicus curiae briefs directly to the AB, even though it did not make any submission before the panel proceedings. Moreover, under the current dispensation, NGOs can submit amicus curiae briefs to the AB any time they choose, definitely at least till the date of the oral hearing by the AB.”

“In view of the jurisprudence developed by panels and the AB with regard to amicus curiae briefs,” India added sarcastically, “a situation is developing in which Members have to demand, in such proceedings, treatment no less favourable to the treatment being accorded to NGOs!”

Though India had reservations about the AB ruling on the shrimp-turtle case (over amicus curiae briefs), the question it was raising now was not the appropriateness of that decision.

“What we are raising today is the question of restricted rights enjoyed by members in dispute settlement proceedings as compared to rights enjoyed by NGOs. This is a serious systemic issue.” While India had no ready solutions to offer, the members had to work collectively to find a solution to this unfortunate situation, India concluded.-SUNS4719

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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