L'amicus curiae dans le règlement des différends de l'omc : état des lieux et perspectives

One of the most controversial issues of dispute settlement mechanism of the World Trade Organization is whether panels and the Appellate Body may accept and consider unsolicited submissions they receive from entities not a party or third party to the dispute. This question is closely linked to the issue of whether private entities, in particular civil society may participate in WTO dispute settlement procedures, which originally have been conceived as an inter-state mechanism. This article analyses the current status of amicus curiae as well as possible ways of its future development, notably taking into present negotiations at the WTO (Doha Round). In a first part, the paper examines the actual status of amicus curiae, as it has been developed in the case law of the Appellate Body, starting with US ? Shrimp ? where the Appellate Body stated that panels may accept and consider unsolicited submissions ?, US ? Lead and Bismuth II ? where the Appellate Body decided that it also has the authority to accept and consider any information it considers pertinent and useful ? and the adoption of an additional procedure in EC ? Asbestos. Even if the Appellate Body confirmed these rulings several times, the issue remains highly controversial among WTO Members. The EC ? Asbestos decision provoked a strong reaction by Members, formally expressed during a special meeting of the General Council of the WTO in November 2000, and leading to the well known « crisis» of 2001/2002. In fact, amicus curiae ? as developed by the Appellate Body ? remains, from a legal and a political point of view, subject to criticism. At the same time, it has to be recognized also that the real impact, at present, of amicus curiae remains modest. The use of unsolicited submissions is very rare in practice and, even in the case of the admission of these submissions in a specific case, their influence on the final decision is quite limited. As for possible future developments, the Doha Mandate includes a negotiation on the « Understanding on Rules and Procedures governing the Settlement of Disputes ». So far, Members were not able to reach an agreement on the topics under discussion, probably because the WTO dispute settlement system has showed its ability to deal with disputes. In fact, it is difficult to imagine that the question of amicus curiae will become an item for negotiations in the very next future. Therefore, despite the creation of a « legal status quo » by the Appellate Body, the reality is that both the Members and the WTO Secretariat are confronted with a « legal vacuum». Even if the Appellate Body established a set of criteria for amicus curiae, these will remain subject to criticism by the majority of the Members. There is a need for general and clear rules on amicus curiae, in order to ensure that unsolicited submissions constitute a positive contribution to the whole system. In our view, the question is not whether amicus curiae should be accepted or not in the WTO dispute settlement mechanism ? of course it should be if the aim is to improve the participation of private entities and thus to contribute to a « more democratic » international system ? but how to elaborate clear rules in order to canalise these submissions. In reality, it seems quite improbable that amicus curiae will disappear from the WTO legal system. Anyway, should Members be unable to reach an agreement, the Appellate Body might also adopt general rules on the procedure of amicus curiae on the occasion of a dispute between Members.