Chinese Journal of International Law Advance Access originally published online on April 26, 2005
Chinese Journal of International Law 2005 4(1):85-120; doi:10.1093/chinesejil/jmi003
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© The Author 2005. Published by Oxford University Press. All rights reserved.
The Amicus Brief Issue at the WTO
The near-exclusive attention which many commentators have given to the importance of analysing the amicus brief issue in terms of transparency and accountability, often accompanied by accusations of a lack of democratic status on the part of the countries that have objected to the admission of such briefs, is misplaced. The World Trade Organization (WTO) Members that have objected most strenuously to amicus brief submissions have been developing countries—ironically, the most vocal proponents of an independent, strong "trade court". Why should developing countries complain if the issue is really one of strategic and political interests? After all, a "court" that takes it upon itself to accept amicus briefs despite the protestations of the majority of the WTO Membership is, in this sense, a "strong court". What this article aims to provide is a very close account of the views of the Members in the political debates on this issue. On that basis, it seems that abstract arguments based on the positive role that non-governmental organizations (NGOs) can play are unlikely to assuage developing countries' concerns. They only address the supposition that developing countries are morally mistaken in their political views, or are suffering from a false consciousness of the (real) threat of trans-boundary non-governmental moral entrepreneurs. Instead, the concerns of these and other Members have to do with estimations about the likely impact of WTO Appellate Body activism on the misapplication (and consequent unpredictability) of negotiated trade rules. These concerns should be taken seriously, for they go to the original intent at Uruguay of having an impartial body which would impartially apply negotiated rules, with an eye towards the avoidance of political controversy. According to this view, fundamental gaps in trade regulation should be resolved by the Members—not the Appellate Body.
* Of the Faculty of Law, National University of Singapore (email: lawlimcl{at}nus.edu.sg). I have endeavoured to state the law as it appeared to me on 31 December 2004.