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INDIA PROTESTS AT WTO APPELLATE BODY MOVE INVITING AMICUS BRIEFS

Date : 23 Nov 2000
Location : New Delhi
 

At a special meeting of the General Council of the World Trade Organisation (WTO) held in Geneva, on 22nd November, India joined a vast majority of WTO members in protesting against the Appellate Body’s decision to invite amicus curiae (literally meaning "friends of the court") briefs* in the case relating to "European Communities -- Measures affecting Asbestos and Products Containing Asbestos ".

India's statement at the meeting by India's Ambassador to the WTO, Shri S Narayanan, made it clear that India did not regard this issue as a procedural one, as viewed by the Appellate Body, but a substantive matter in which the Appellate Body's approach was totally unjustified. In his statement Shri Narayanan dwelt at length on how the Appellate Body's approach to accept unsolicited briefs as well as to invite submissions from any source on the most sensitive of all issues in the WTO, namely dispute cases, amounts to changing the inter-governmental character of the WTO. For one thing, the ultimate compliance is to be done by Governments, not by others. Furthermore, Governmental position in disputes are arrived after consultations with all domestic stake holders. If Governments know that their non-governmental agencies have a further chance to influence the dispute settlement mechanism, then, they would pay less attention to finalising their positions and even worse, there may be implications for compliance by the Governments themselves, he said. Shri Narayanan also said that the Appellate Body's approach would also have the implication of putting the developing countries at an even greater disadvantage in view of the relative unpreparedness of their own non-governmental agencies who have much less resources and wherewithal either to send briefs without being asked for or to respond to invitations for sending such briefs. Looking at the record of the WTO Appellate Body, Shri Narayanan said that the Appellate Body was at its best when it confined itself to its mandate i.e. deal with issues of law and legal interpretation. When it went beyond its mandate and started making rules or amending rules and thus encroached into what was admittedly Members' territory, it created a problem for itself and the entire membership. In conclusion, Shri Narayanan said that the Appellate Body should show deference to the conviction of almost the entire Membership that in accepting unsolicited amicus curiae briefs and seeking amicus curiae briefs, the Appellate Body was acting without mandate and to take appropriate measures to remedy the situation.