General Council meet on Appellate Body and NGO amicus petitions

by Chakravarthi Raghavan

Geneva, 19 Nov 2000 -- The actions of the WTO’s Appellate Body (AB), and of the WTO secretariat, in enabling and ‘inviting’ non-governmental organizations to file amicus curiae briefs in disputes is to be addressed at a special session of the General Council on Wednesday.

The AB division hearing the Canadian appeal against the panel decision over French import ban on asbestos and asbestos products sent on 8 May a communication to the DSB setting out the additional procedure it had established in this dispute for filing of amicus curiae briefs by non-government organizations. The AB division set out a two-stage process, first for the NGOs to seek permission to file such briefs, and when permitted to file briefs. The WTO secretariat (presumably at the instance of the AB secretariat), put this procedure on its website and drew the attention of over 600 NGOs on its roster (but not the media) to this.

Several NGOs in their electronic mail bulletin boards viewed the procedure and the communication to them as an ‘invitation’.

[According information with some trade diplomats Monday, none of the NGOs, who sent in a communication about themselves and their desire to file briefs, have been granted permission to file such briefs!]

The special session of the General Council has been convened at the instance of the chair of the informal developing country grouping at the WTO, Amb. Fayza Aboulnaga of Egypt, who conveyed to the chairman of the General Council the concerns of the developing countries on this issue and the need for the General Council to address the question.

Trade diplomats said Friday that not only developing countries, but a number of developed countries, in fact all save the United States, have become concerned over the way AB was undertaking ‘legislative’ roles and were very critical of the dispute panels and the Appellate Body encroaching on the prerogatives of the WTO members and the General Council, in deciding such matters.

It is not very clear what the General Council would do - given that the views of members on a number of instances when the issue had figured at the DSB and members were highly critical of the actions of the panels and the Appellate Body in receiving and taking note of amicus curiae briefs have been ignored by the AB.

[In May 1998, at the end of the 2nd Ministerial Conference in Geneva, where protestors against globalization and WTO had besieged the meeting, then Director-General Renato Ruggiero in courting some of the NGOs had stressed at the final press conference that “even without formal decisions, he and the secretariat were passing on to the dispute settlement panels the ‘briefs’ and ‘views’ of NGOs on disputes.”

The issue came up forcefully at the DSB when the Appellate Body, in the shrimp-turtle case criticised the panel for not accepting amicus curiae briefs, and had said in effect that the power of panels to ‘seek’ information from others, included ‘receiving’ unsolicited information.  A range of members strongly criticised the AB for these views and for encroaching on the rights of members to decide these questions.]

But these overwhelmingly critical views of members have been ignored by the panel system and the AB, with the AB (in the EC-US dispute over US restrictions on specialized steel imports), reasserting its right to receive such briefs and information.

In some other rulings, the AB has in effect asserted that it could do whatever it is not forbidden to do under the rules - in a case of the WTO system and the rights of sovereign members of the WTO (even in areas where they have no expressly ceded sovereignty) being hijacked by the Appellate Body and the secretariat.

On a straight reading of the Marrakesh agreement, while the first sentence of Art.IX.1 has a statement that the WTO ‘shall continue the practice of decision-making by consensus under GATT 1947’, it appears to be clearly exhortatory.

For, the next sentence of Art.IX.1 says that except where otherwise provided (as in the case of the DSB, for negative consensus, and changes to the DSU needing consensus), “when a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting.”

However in the 'Alice-in-the-Wonderland' world of the WTO, a view is being promoted, and accepted by many, that whether or not to proceed to a vote in such a case has to be decided by ‘consensus’!

The AB’s action in enabling such amicus curiae briefs, and the special procedures set up by the AB in the particular dispute, figured briefly at the meeting of the Dispute Settlement Body (DSB) on 17 November, when Canada made a brief statement under any other business.

Canada said it had been ‘invited’ by the AB division to give its views on the criteria to follow when deciding whether to allow non-parties to submit briefs. The communication of the AB to the DSB about the ‘additional procedures’ said these had been adopted ‘after consultations with the parties and third parties’ to the dispute, giving rise to the impression that all the parties and third parties had agreed to the special procedure.

While Canada was sympathetic of non-members, the issue had important systemic and institutional implications for the WTO and could not be characterized as “exclusively procedural”. It was for the membership as a whole, and not the AB, to decide how the issue should be dealt with in the future. Members had “to ensure that the government-to-government nature of the dispute settlement system is not compromised by the procedural initiatives of the officials or of the Appellate Body.” Canada was therefore concerned that the AB had decided to adopt these procedures.

Earlier, before Canada spoke, the chairman of the DSB, Mr.Stuart Harbinson of Hong Kong China, gave ‘personal reflections’ and referred to the impending special session of the General Council and the ‘public attention’ it was bound to attract, and said this should be addressed as a ‘systemic’ issue, and hoped the General Council discussions would help “enhance the communication between the membership and the Appellate Body.”

Harbinson said he had been advised by the WTO’s legal division that the issue of amicus curiae briefs had arisen only in eight cases, and only three of them did the matter become an issue at the Appellate stage.

The AB procedure, and ‘invitation’ to the NGOs came to the notice of the members during an informal consultation on 9 May (by the Chairman of the General Council) on ‘external transparency’ issues as part of the ‘confidence-building measures’ (following the debacle of the failure of the Seattle Ministerial Conference) agreed in February.

A number of members at the 9 November meeting noted that the main mandate to the General Council of improving internal transparency and effective participation was still to be resolved by agreed measures, and criticised the way the ‘external transparency’ issues and proposals to open up the dispute process to ‘civil society’ was being pushed.

In that context, they also criticised the AB for the special procedure set up and acting in effect to preempt the decisions of the members.

Speaking at the informal consultations, Egypt’s Amb. Fayza Aboulnaga said that a large number of countries shared her view that the General Council was not in a position to undertake an exercise on external transparency nor did they have any legal basis to engage in such a discussion.

The clear mandate that the General Council got from the Seattle meeting of ministers was “to improve internal transparency and effective participation of all members in the decision-making process.” It was a matter of “keeping the house in order” rather than engage in an “outreach activity”. The discussions on internal transparency issues had been concluded “without adopting or even rendering concrete comprehensive measures.”

While there had been some improvement on ‘informal consultations’, there was still a need to discuss specific measures on the “informal open-ended consultations, limited consultations known as the ‘Green Room’ or plurilateral consultations, and their relationship thereof, reviving the role of the formal mode as the sole negotiating and drafting exercise, the format of the negotiations, role of the Chairman, duration and frequency of negotiating meetings and many other elements raised by many delegations.”

“We need to take decisions or adopt guidelines on those issues that will be binding on all of us and govern our work in the future,” the Egyptian ambassador said (in a text of her intervention made available later).

The objective of external transparency was to establish procedures for consultations with NGOs at a multilateral level, while their aim should be “to facilitate the task of each WTO members to do so at national level by enhancing internal transparency.”

The WTO was an inter-governmental organization and a forum for multilateral trade negotiations and should remain member-driven as such “unless we want to embark on another exercise on the nature of the Agreement establishing the Organization.”

At the WTO in Geneva, “there is no role for national parliamentarians or judicial authorities. Each member is accountable back home. We do not think that this should be a matter of concern for the Organization.”

Rushing to concrete proposals on external transparency was a matter of concern to Egypt. “We strongly believe that our priority should remain internal transparency so that we can reach a level playing field among WTO members and ensure their full participation before reaching out for outside players. We are not ready yet to get into out-reach activities, web-casting of meetings or opening them to non-governmental entities.  Moreover, we are not sure of the legal aspects involved in doing so, let alone its legitimacy or justification.”

Mrs. Aboulnaga said she did not see any need to adopt specific decisions or proposals relating to direct participation of the civil society in the WTO.

“There was not even a common understanding of what was meant by the term ‘civil society’? And which civil society? Is it NGOs? Is it the private sector? Is it the business community or corporations? Or is it a combination of all of that? Are the structures and components of civil society the same everywhere? The answer of course is no.”

It was ironic, the Egyptian ambassador said, “that we are asked to open up this organization to NGOs and civil society when the requests for participation of many relevant intergovernmental and regional organizations as observers in the WTO are stalemated.”