Judicial Lobbying at the WTO: The Debate Over the Use of Amicus Curiae Briefs and the U.S. Experience

Padideh Ala'i, American University Washington College of Law


The continuing debate over the use of amicus curiae briefs at the World Trade Organization (“WTO”) raises interesting questions about the influence of the U.S. legal system on the WTO dispute settlement process. Specifically, it brings to the surface differences between legal cultures and the fact that the U.S. legal culture with its emphasis on procedure is not readily transferable to the WTO. Comparing the controversy regarding the use of amicus curiae briefs before WTO Panels and the Appellate Body with the history and evolution of the institution of amicus curiae before the U.S. Supreme Court may help explain the solitary support of the United States for the Appellate Body's decision to issue additional procedures for the filing of amicus curiae briefs in European Communities--Measures Affecting Asbestos and Asbestos containing Products (“E.C. - Asbestos”). This Essay first reviews the controversy surrounding the issuance of procedures for amicus curiae submissions by the Appellate Body in E.C. - Asbestos. Second, it looks at the history and practice of amicus curiae briefs at the WTO. Third, the Essay looks at how in the United States an amicus curiae has changed from being a “friend of the court” to a “judicial lobbyist,” and specifically, focusing on the procedural approach taken by the U.S. Supreme Court in addressing the negative impact of such judicial lobbying. Finally, the Essay draws certain lessons from the U.S. experience and concludes that the Appellate Body in E.C. - Asbestos adopted the U.S. Supreme Court approach in dealing with the “problem” of unsolicited amicus curiae briefs.