Comparative Study of Amicus Curiae

INTRODUCTION

A Comparative study of amicus curiae is the study of differences and similarities between the laws of different countries. More specifically, it involves study of the different existing legal systems in the world, including the common law, the civil law, It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative study of amicus curiae law has increased enormously in the present age of internationalism, economic globalization and democratization. Comparative study of Amicus Curiae law is an academic study of separate legal systems, each one analyzed in its constitutive elements; how they differ in the different legal systems, and how their elements combine into a system. Comparative study of amicus curiae law is different from the fields of general jurisprudence (legal theory), international law, including both public international law and private international law (also known as conflict of laws). Despite the differences between comparative study law and these other legal fields, comparative study of amicus curiae law helps inform all of these areas of normatively. Comparative law may contribute to legal theory by creating categories and concepts of general application. The comparative study of the various legal systems may show how different legal regulations for the same problem function in practice.

Several disciplines have developed as separate branches of comparative study of amicus It appears today the principal purposes of comparative study of amicus curiae law are:

  • to attain a deeper knowledge of the legal systems in effect
  • to perfect the legal systems in effect
  • possibly, to contribute to a unification of legal systems, of a smaller or larger scale.

Followings are the Initial work by Various Country which is the basis of claiming for my research uniqueness.

1) LEGAL REGIME AND LEGISLATIVE FRAMEWORK OF INDIA

Amicus Curiae Status In India Legal System, Supreme court has defined the term Amicus curiae under Supreme Court jurisdiction “If a petition is received from the jail or in any other criminal matter if the accused is unrepresented then an Advocate is appointed as amicus curiae by the Court to defend and argue the case of the accused. In civil matters also the Court can appoint an Advocate as amicus curiae if it thinks it necessary in case of an unrepresented party; the Court can also appoint amicus curiae in any matter of general public importance or in which the interest of the public at large is involved “, Legal status of amicus curiae is not wider as understand from above legal frame work & it does work under the limitation.

The Hon’ble High court of Delhi also defined the term of Amicus Curiae “Translated from the Latin as ’friend of the Court’. An advocate appears in this capacity when asked to help with the case by the Court or on volunteering services to the Court.”

In innumerable cases in India, the courts have allowed, or, on its own motion, have asked various people to act as amicus curiae to the proceedings. There is a growing trend where practitioners have started turning towards the academia. Presently, there are academicians in India who have had practical experience in the past such as Anil Rai (former Luthra & Luthra Corporate Partner and presently visiting professor at National Law University, Delhi), and many others who have had practical exposure and possess the necessary skills to make such academic interventions. These instances indicate a healthy development which can facilitate transfer of knowledge from industry and academia and vice-versa, legal understanding. Apart from serving public interest, these amicus appearances can also gain for these academicians recognition and future employment or consultancy opportunities in the private sector.

2) LEGAL REGIME AND LEGISLATIVE FRAMEWORK OF SOUTH AFFRICA

The participation of amicus curiae in litigation is a well-established practice in South African legal history. Indeed, the South African courts “are increasingly recognizing that certain matters must necessarily involve the perspectives and voices of organizations or entities that may not have a direct legal interest in the matter…” In South Africa, non-parties may make submissions as amici curiae in the Constitutional Court, the Supreme Court of Appeal,55 the Labour Appeal Court, the High Court, the Land Claims Court, and the Labour Court. The rules for amici in the Constitutional Court appear to serve as models for the rules in the lower courts. The Constitutional Court Rules require that a non-party seeking to be admitted as an amicus curiae have an “interest in any matter before the Court”. The potential amicus must describe this interest in the initial submission to the Court. The Constitutional Court has held that this interest is not the same as the “direct interest” required for intervention. Unlike the Constitutional Court, the Supreme Court of Appeal permits an interested party to be admitted as amicus curiae without the Court’s permission if the amicus obtains the parties’ consent. If the potential amicus fails to obtain this consent, he or she may still apply to the President of the Court. Amicus submissions are permitted in the High Courts of South Africa under Rule 16A, which requires that a party who seeks to raise a constitutional issue give notice to the Registrar when he files the relevant affidavit or pleading.

3) LEGAL REGIME AND LEGISLATIVE FRAMEWORK OF EUROPEAN COMMISSION

In this case, the Commission sought to intervene as Amicus Curiae pursuant to Article 15(3) of Regulation 1/2003 in the appeal procedure before the Gerechtshof te Amsterdam. On 12 September 2007, the court referred the case for a preliminary ruling to the European Court of Justice (ECJ). In its judgment of 11 June 2009 (Case C-429/07), the ECJ held that the Commission was competent to submit, on its own initiative, written observations in proceedings relating to the deductibility from the taxable profit of a fine for an infringement of EU competition rules (Articles 81 and 82 EC, now Articles 101 and 102 TFEU). Following this judgment of the ECJ, the Commission submitted its observations as Amicus Curiae before the Gerechtshof te Amsterdam. In its judgment of 11 March 2010, the Gerechtshof te Amsterdam set aside the judgment of the first instance court. It held that the fines imposed by the European Commission are not deductible from taxes and follows thereby the line suggested by the European Commission in its Amicus Curiae intervention.

Another development concerning the activities of the European Commission as Amicus Curiae is that the Commission has decided to submit written observations pursuant to Article 15(3) of Regulation 1/2003 to the Irish High Court in the BIDS case .This is the fourth time that the Commission will intervene as Amicus Curiae before a national court.

Pursuant to Article 15 (3) of Regulation 1/2003, the Commission may seek to intervene as Amicus Curiae and submit written observations to court of the Members States where the coherent application of Articles 101 or 102 TFEU (previously, Articles 81 and 82 EC) requires doing so.

4) LEGAL REGIME AND LEGISLATIVE FRAMEWORK OF AUSTRALIA

Amicus curiae are limited to the presentation of argument, often at the specific request of the court, on a matter which it seeks or is prepared to receive assistance. Rule 9.06(b) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) allows the Court to add, as a party to proceedings:

  • a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
  • a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding.

5) LEGAL REGIME AND LEGISLATIVE FRAMEWORK OF NEW ZEALAND

In New Zealand, the term amicus curiae are used to cover a wider range of circumstances where counsel is appointed to assist the court. They have been appointed: (a)to present legal arguments for a party who does not or cannot appear; (b)for a class of persons that might be affected by a judgment; (c)where a party to a proceeding is not represented by counsel in certain circumstances, such as where he or she is unfit to represent him or herself, or is unable to obtain representation; (d)where the case raises complex issues such as matters of human rights or international law.

6) LEGAL REGIME AND LEGISLATIVE FRAMEWORK OF UNITED KINGDOM

In the United Kingdom, a memorandum issued to judges in 2001 makes it clear that the role of the amicus in that country is expressly rooted in assistance to the court. The court may seek the assistance of an amicus (renamed an “advocate to the court”) when there is a danger of an important and difficult point of law being decided without the court hearing relevant argument. The function of the advocate to the court is to give the court assistance on the relevant law and its application to the facts of the case. It is not his or her function to represent anyone.

Where cases of public importance are decided by the courts, therefore, it is surely right that the courts should not be restricted to hearing from only the parties in the case before them. And in recent years, UK courts have begun to allow third party interventions – applications by public bodies, private individuals or companies, or NGOs to make submissions which raise some issue of public importance. Indeed, since 1996 when the House of Lords allowed the first intervention by an NGO in the case of R v Khan, the practice of third party interventions in the higher courts has grown considerably. There were, for instance, about 45 interventions in the Court of Appeal in 2005, And in its last full year of operation, nearly of third of the cases decided by the Appeal Committee of the House of Lords involved at least one intervener.

7) LEGAL REGIME AND LEGISLATIVE FRAMEWORK OF U.S.A

BRIEF FOR AN AMICUS CURIAE PROCEDURE UNDER SUPREME COURT OF UNITED STATE OF AMERICA (RULE-37): It is laid down in the provision of rule of supreme court of United state of America that procedure & application to appoint a amicus curiae is widely consider by international community to resolve the dispute & other matter before the court and thusforth UNO has passed the charter in WTO to work as dispute mechanism & to help widely hype cases of international law. An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favoured. An amicus curiae brief may be filed only by an attorney admitted to practice before this Court as provided in Rule 5.

BRIEF OF AN AMICUS CURIAE UNDER RULE 29. FEDERAL RULES OF APPELLATE PROCEDURE, USA: A brief of an amicus curiae may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof, or by a State, Territory or Commonwealth. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. Save as all parties otherwise consent, any amicus curiae shall file its brief within the time allowed the party whose position as to affirmation or reversal the amicus brief will support unless the court for cause shown shall grant leave for a later filing, in which event it shall specify within what period an opposing party may answer. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons.

8) LEGAL REGIME AND LEGISLATIVE FRAMEWORK OF CANADA

In the Canadian system, the equivalent of amicus status is permitted through public interest intervention. The Canadian Supreme Court rules for interveners substantially resemble the South African rules on the admission of amici. Indeed, several of the South African rules appear to have been copied nearly verbatim from the Canadian system. Both the Federal Court of Appeal and the Federal Court also permit such interveners. Under Rule 109(1) of the Federal Court Rules, which apply to both courts, the court may, on an applicant’s motion, grant the applicant leave to intervene. The notice of the motion seeking leave to intervene must “describe how the proposed intervener wishes to participate in the proceeding and how that participation will assist the determination of a factual or legal issue related to the proceeding”. If the motion is granted, the court must give directions regarding the intervener’s role, including costs, rights of appeal, and any other procedural matters; it must also give instructions regarding the service of documents.

9) LEGAL REGIME AND LEGISLATIVE FRAMEWORK OF FRANCE

France, as well as French academics and organisations, have already acted as “friend of the court” in various proceedings. The influence of this British concept in France is not limited to a few interventions before foreign courts. Indeed, French courts have already used it and it is slowly becoming part of the French procedural system. The Paris Court of Appeal resorted to the concept of amicus curiae for the
first time in 1988. When requested to rule on an issue relating to the application of rules governing the profession of lawyer, the Court asked the President of the Paris Bar, “as amicus curiae”, to “provide, in the presence of all interested parties, all the observations that may enlighten. the court in its process of solving the dispute” (Paris Court of Appeal, 21 June and 6 July 1988, Gaz. Pal. 1988, 2, 700, Note Laurin). On this occasion, the Court provided a negative definition of the role of amicus curiae by specifying that the amicus curiae is neither a witness nor an expert and is not subject to the rules of the French Code of Civil Procedure relating to objections to members of the court. the amicus curiae must not be mistaken for a party to the trial, notably a voluntary or forced intervener, as, within the meaning of the French Code of Civil Procedure, he/she does not have any interest in acting.

CONCLUSION

The experiences of South Africa, Canada, and the United States and other country demonstrate the utility of amici curiae and provide models for a system of rules governing the practice. The principles proposed here seek to create a workable system that can allow courts access to the knowledge of interested organizations and experts whilst also controlling the admission of amici to ensure that their submissions will be appropriate and will not entail excessive or repetitive argument. Far from burdening the courts, amicus inputs can help ensure the fair administration of justice and vindicate the rights of all citizens.

 

Submitted By:

Sunny Kumar, Pursuing Ph.d,
Mewar University, Chittorgarh