Role and Limitation of Amicus Curiae

INTRODUCTION

This article is mainly concerned with the Role and Limitation of amicus curiae. We have plotted the below two legal rules of amicus curiae, how it’s effective as dispute mechanism which enacted through law. In Current Scenario, Amicus Curiae under international law in general, are being enforced through a treaty system. The states take it upon themselves to follow the treaties they have signed. This is hardly a fool-proof system. But it has evolved over the years with the aid of different types of compliance mechanisms. One such mechanism is WTO Dispute Settlement body for Amicus Curiae. Their creation, purpose, enforcement mechanisms and effectiveness will be analyzed. Finally, this study will be put into perspective with the aid of the theory of cultural relativism and the analysis of some of the current issues and possible solutions of Amicus Curiae law today.

BRIEF OF AMICUS CURIAE UNDER INTERNATIONAL COURT OF JUSTICE

The submission of amicus curiae briefs can be found in the practices and procedures of international courts and tribunals, and also in the dispute settlement proceedings of the WTO. In the International Court of Justice (ICJ),the amicus curiae briefs submissions are clearly accepted as designated in Article 34(2) of the Statute of the International Court of Justice, although the provision indicates that amicus curiae briefs submissions can only be made by international governmental organisations. This might seems to argue that NGOs, as important non-party amicus curiae, are excluded. The International Tribunal for the Law of the Sea (ITLOS), also provides similar provisions to those of the ICJ. Examination of amicus curiae briefs issues in the ICJ and ITLOS proceedings is beyond the scope of this article. In WTO dispute settlement proceedings, the issue of amicus curiae briefs submission is extremely controversial. It appears that the Panel and the Appellate Body may accept submissions by amicus curiae subject to consideration of due process, but they may not request them.

CORE PROVISION FOR AMICUS CURIAE BRIEFS IN THE WTO (DISPUTE SETTLEMENT UNDERSTANDING)

The issues of amicus curiae briefs participation in the WTO dispute settlement proceedings lies in Article 13 of the DSU. Under Article 13 of the DSU, the provision provides that each panel shall have the right to seek information and technical advice from any individual or body which it deems appropriate. Article 13(2) then provides that the panel may seek information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter. In summary, it can be seen that Article 13 of the DSU makes it very clear the right of panels to seek information and advice relevant to the dispute before it. However, the provision does not mention the submission of amicus curiae briefs issue. The wording of Article 13 of the DSU is so ambiguous in the context of amicus curiae briefs issues. Specifically, The term seek in Article 13 reflects the idea that panels only have the initiative to request information. Thus, it can be argued that the submission of amicus curiae briefs cannot be made if the panels do not request them.

Exclusively, the three remarkable cases, namely the US-Shrimp case, the US-Steel case and the EC-Asbestos case on the admissibility of amicus curiae briefs in the WTO are taken into account in this section. the genesis of amicus curiae briefs participation in the WTO dispute settlement proceedings occurred for the first time in the US-Shrimp case. In this case, two environmental organisations submitted briefs to the Panel, although the Panel refused to accept such briefs on the ground that it had not requested them. However, the Panel noted that if any party could put forward all or part of these briefs as part of its own submission, the Panel would then be willing to accept them.

POSSIBLE CONCERN AND LIMITATIONS

Despite the many advantages of amici curiae, the use of amici can present legitimate concerns.

Waste precious judicial resources by arguments and extra material.

In terms of volume, the admission of amicus curiae can generate a lot of work for the courts. In the United States, for example, at least one amicus brief was filed in 85% of cases heard by the Supreme Court in 1986-1995. Indeed, amicus participation in the US Supreme Court has risen drastically over the course of the twentieth century, from 531 briefs in the decade between 1946 and 1955 to nearly 5000 in the decade between 1986 and 1995. Still, the United States remains the exception, with an exceptionally high number of amicus filings – and this is due to in part to the US Supreme Court’s policy of permitting “essentially unlimited amicus participation”. Rules that more strictly limit amicus participation or courts more disciplined in their use of amici would substantially address the concern that Indian courts would be overwhelmed by the sheer volume of amici.

Duplicate arguments seem misplaced or overstated.

Although many amicus briefs do repeat information or arguments presented by the parties, research in the United States found that the majority also contained new arguments, and that approximately a quarter of amicus briefs filed were composed entirely of new information and arguments that parties did not include or address. Moreover, the US Supreme Court appears to find the information and arguments presented in amicus briefs useful; its decisions referenced one or more amicus briefs in approximately 28% of the cases in which such briefs were filed between 1946 and 1995.In fact, the percentage of cases in which amicus briefs were filed that referenced those briefs actually rose over time, to just under 37% of cases with amicus filings between 1986 and 1995.This suggests that the Supreme Court finds amicus briefs useful – perhaps increasingly so – rather than repetitive.

Overwhelm the original issues in the litigation.

It is unclear how legitimate this concern is in practice, as no examples are cited of cases in which the courts actually lost track of the original issues between the parties. Canada and South Africa address this potential problem by requiring that an amicus have an “interest” in the case; new causes of action raised by amicus counsel can be key to understanding the full implications of a case. However, the introduction of new causes of action can also be regulated by requiring the court’s permission for this. Courts could also follow the South African example and decline to admit an amicus where this would prejudice the existing parties or require the joinder of a new party. New arguments could also be disfavoured if they would require new evidentiary submissions or additional fact finding. In cases where amici were permitted to raise new causes of action, the parties could be given an opportunity to submit additional heads of argument in response.

Scholars have also expressed the concern that disproportionate filing of amicus submissions in support of one side may create the appearance of favouritism or “the perception that the other side was being ganged up on”. In Jaffee v Redmond,for example, Justice Scalia of the US Supreme Court noted that “the Court was the beneficiary of no fewer than amicus briefs supporting respondents,” while not a single amicus brief was filed in support of the petitioner. Justice Scalia implied that the Supreme Court had, in essence, allowed itself to be swayed by this surge of interest from professional organisations. In practice, however, there is no evidence of any such favouritism in the US system: parties with amicus curiae support do not win substantially more often than those without. Thus, although the US Supreme Court may take advantage of the expertise or legal arguments of particular amici, there is no evidence that the mere fact that one side has more amicus support than the other affects the outcome of a case. Moreover, Jaffee itself seems to be a unique case; as of 1999, “no other case had a disparity of at least fourteen briefs on one side and zero on the other”.

Some may worry that parties who should or could be interveners will use the amicus role to escape an award of costs. In South Africa, Canada, and the United States, a party who could in theory be joined or intervene, can apply to submit arguments as an amicus curiae instead. In South Africa and Canada, such a status would permit the party to escape an award of costs if his side loses. Both jurisdictions, however, permit the party to make this strategic choice. An analysis of the costs and benefits of the different statuses reveals that the amicus status has sufficient costs and inconveniences to prevent abuse. First, a potential amicus must seek the permission of the court or the parties in order to be admitted; thus a party who elects to seek amicus status rather than intervening as a matter of right risks being shut out of the litigation altogether. Second, an amicus cannot submit record evidence, but is restricted to evidence that is of common cause or otherwise incontrovertible. An amicus also has no right to make oral submissions and must obtain the permission of the parties or the court to advance oral argument. Perhaps most importantly, an amicus has no opportunity to have his interests adjudicated; although the rule of law handed down may affect his rights, the court will not specifically address them or take them into consideration in handing down its ruling. In other words, parties avoiding intervention to escape adverse costs awards would ultimately give up significant advantages that would better allow them to protect their own interests. They could not simply abuse the amicus system by preserving the same rights as interveners whilst escaping costs.

CONCLUSION

I conclude based upon the above discussion that the Role of Amicus Curiae is very functional and limitation to be avoidable in terms of achieving of initial goal and letter on it will be our endeavoured to resolve the concern or to mitigate the risk under limitation.

Submitted By:

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