Amicus Curiae

7 Key excerpts on "Amicus Curiae"

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  Shaping Nations

  • Linda Cardinal, David Headon(Authors)
  • 2002(Publication Date)
  • University of Ottawa Press

    (Publisher)

  For further discussion of the practice of citation analysis, see R. Smyth, Academic Writing and the Courts, University of Tasmania Law Review, 17 (1999): 164 and the many references cited therein. 6. A useful (Canadian) definition of the role of the Amicus Curiae was provided by Justice Ferguson of the Ontario High Court in Grice v. R (1957) 26 CLR 318, [1957] 11 DLR (2d) 699 at 702: a bystander, usually a lawyer, who interposes and volunteers information upon some matter of law. In its ordinary use the term implies the friendly intervention of counsel to remind the court of some matter of law which has escaped its notice and in regard to which it is in danger of going wrong. See also Attorney-General (Nova Scotia) v. Beaver (1984), 66 NDR (2d) 419. The seminal piece on the role of the Amicus Curiae today is Samuel Krislov's The Amicus Curiae Brief: From Friendship to Advocacy, Yale Law Journal, 72 (1963): 694-721. 7. Cf. G.A. Caldeira and J.R. Wright, Amicus Curiae Before the Supreme Court: Who Participates, When and How Much?, Journal of Politics, 52, no. 3 (1990): 782-806. In Canada and in the United States, the Supreme Courts have adopted the practice of inviting amici to appear in cases where her special expertise might assist the court in its deliberations; see further Krislov, 717-719. In those circumstances the influence of the amici might be expected. But in each of those countries and in Australia it is more typical for the ultimate court to receive applications to be heard or have the opportunity to make written submissions as a non-party intervener. 8. For example, J. Howard, Retaliation, Reinstatement and Friends of the Court, Howard Law Journal, 31 (1988): 241. 286 SHAPING NATIONS 9. For example, L. Pfeffer, Amici in Church-State Litigation, Law and Contemporary Problems, 44 (1981): 83; D.S. Ruder, The Development of Legal Doctrine Through Amicus Participation: The SEC Experience, Wisconsin Law Review, (1989): 1167.

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  The Jewish Law Annual Volume 22

  • Benjamin Porat, David C. Flatto, Benjamin Porat, David C. Flatto(Authors)
  • 2023(Publication Date)
  • Routledge

    (Publisher)

  1

  1 See: J.D. Kearney and Th.W. Merrill, “The Influence of Amicus Curiae Briefs on the Supreme Court,” University of Pennsylvania Law Review 148 (2000), 743–4; N. Hakman, “Lobbying the Supreme Court—An Appraisal of ‘Political Science Folklore’,” Fordham Law Review 35 (1966), 15.

  The Amicus practice is primarily used by third parties (such as a professional association, an individual, a commercial company, or a rights organization), who introduce legal or factual arguments that have not been presented to the court by the formal parties.2 In some cases, Amici (the plural of Amicus) are third parties that request to join the proceedings in order to introduce arguments relating to the effects of the proceedings on a broader level, or on other parties not represented in the proceedings. Sometimes, it is the court that initiates the inclusion of Amici in the proceedings, in order to present information from different fields such as religion, economy, philosophy, sociology, or environment, when this information is not readily available to the formal litigants or when they are not interested or able to introduce it to the court.3

  2 See, generally, E. Angell, “The Amicus Curiae: American Development of English Institutions,” International and Comparative Law Quarterly 16 (1967), 1017.

  3 Kearney and Merrill, note 1 above.

  The final type of Amicus, used mainly in the USA but also to some extent in Israel, is when the third party has an interest in the legal outcome and they request to join the proceedings to convince the court, as Amici, to side with the party they support (the “Modern Amicus”).4

  4 J. Bellhouse and A. Lavers, “The Modern Amicus Curiae: A Role in Arbitration?,” Civil Justice Quarterly 23 (2004), 187. H.A. Anderson, “Frenemies of the Court: The Many Faces of Amicus Curiae,” University of Richmond Law Review 49 (2015), 361. For a comparative study see Sh. Farber, “The Amicus Curiae Phenomenon – Theory, Causes and Meanings,” Transnational Law and Contemporary Problems

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  The Amicus Curiae in International Criminal Justice

  • Sarah Williams, Hannah Woolaver, Emma Palmer(Authors)
  • 2020(Publication Date)
  • Hart Publishing

    (Publisher)

  As a general matter, in criminal matters a court should be astute not to allow the submissions of an amicus to stack the odds against an accused person. Ordinarily, an accused in criminal matters is entitled to a well-defined case emanating from the state. If the submissions of an amicus tend to strengthen the case against the accused, this is cause for caution. This, however, is not an inflexible rule. But it is a consideration based on fairness, equality of arms, and more importantly, what is in the interests of justice.

  We will explore how similar considerations have influenced international criminal tribunals in their decision to admit amici curiae in proceedings.

  E. The Amicus Curiae in International Institutions

  The Amicus Curiae mechanism is also found at the international and regional level, although there is considerable variation in practice across institutions. The basic division is between those institutions that are ‘open’ to Amicus Curiae participation and those that are not.

  i. Closed Institutions: The ICJ and ITLOS

  The ICJ and ITLOS lie at the ‘closed’ end of the spectrum. Neither tribunal has a rule permitting Amicus Curiae participation in contentious proceedings and neither has relied on its inherent powers to accept Amicus Curiae briefs. Provisions in the instruments of each tribunal allow them to receive information from international organisations;150 however, this provision is restricted to intergovernmental organisations,151 which most likely includes hybrid organisations whose membership comprises mainly – but not exclusively – states.152

  This has not prevented non-state actors from filing submissions, although they have not had much success. The one occasion on which the ICJ has given permission for an amicus submission by an NGO occurred in the proceedings concerning the 1950 Advisory Opinion on the International Status of South-West Africa.153 The Court indicated that it would accept a written statement from the International League for the Rights of Man ‘which was likely to assist the Court in its examination of legal questions’.154 Yet, the League failed to meet the deadline for submission and therefore the Court took no notice of the submission.155 The Court rejected subsequent attempts by the League and others to participate as amici in the 1971 advisory proceedings on Namibia, with the exception of the application of the Organization of African Unity.156 The ICJ has also rejected requests by individuals, with the most highlighted instance being the inquiry by Michael Reisman as to whether he could make submissions as an amicus in the 1970 South-West Africa advisory proceedings.157 The proceedings concerning the two requests for advisory proceedings from the ICJ on the legality of nuclear weapons, which partly resulted from a high profile campaign by NGOs, led to an influx of unsolicited NGO briefs, reports and petitions at the Court.158 That material was placed in the Court’s library and made available to judges, but was not accepted formally or made part of the case file.159 The judges’ opinions revealed different responses to the value and appropriateness of such material. Judge Weeramantry, for example, referred to the substance of NGO materials and considered the submissions as ‘evidence of a groundswell of global public opinion which is not without legal relevance’.160 In contrast, Judge Guillaume was opposed to the involvement of NGOs, urging international institutions ‘to resist the powerful pressure groups which besiege them today with the support of the mass media’.161

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  Investment Treaty Arbitration as Public International Law

  Procedural Aspects and Implications

  • Eric De Brabandere(Author)
  • 2014(Publication Date)
  • Cambridge University Press

    (Publisher)

  79 Amicus Curiae in general international dispute settlement Statutes and regulations often contain explicit rules on the procedure of third party intervention which enable a third party to participate directly in the proceedings – thus in a different capacity than as Amicus Curiae – if the third party has a legal interest that may be affected by the decision in the case as is the case at the ICJ. 80 Such an authorization is usually also accepted when the parties consent to voluntary intervention, which is included in several arbitration rules in international commer- cial arbitration. 81 In investment treaty arbitration, certain rules exist in relation to the capacity of state parties to the investment agreement that are not party to the dispute to make submissions to the tribunal. In the NAFTA, for instance, parties to the NAFTA have the right ‘on written notice to the disputing parties, [to] make submissions to a Tribunal on a question of interpretation of this Agreement’. 82 The 2012 US Model BIT similarly provides that ‘the non-disputing Party may make oral and written sub- missions to the tribunal regarding the interpretation of this Treaty’. 83 77 Article 36(2) of the ECHR: ‘The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings’, Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222 (hereafter ‘European Convention on Human Rights’. 78 See Jo M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (Cambridge University Press, 2003), p. 214. 79 See Sarah J. Williams and Hannah Woolaver, ‘The Role of the Amicus Curiae before International Criminal Tribunals’, International Criminal Law Review, 6(2) (2006): 151, 151–89.

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  Poverty and the International Economic Legal System

  Duties to the World's Poor

  • Krista Nadakavukaren Schefer(Author)
  • 2013(Publication Date)
  • Cambridge University Press

    (Publisher)

  The role of amici curiae is usually limited to providing written submis- sions of pre-defined scope, as shown in the case analysis in the next section. Notwithstanding this, the Revised ICSID Arbitration Rules, which came into force in 2006, provide for the possibility of amici curiae to attend hearings. 36 However, since the right to attend hearings is subject to a veto right by the parties, this possibility is probably, at least in the near future, of limited practical significance. One of the concerns surrounding the participation of amici curiae in the investment arbitral process is that they are often regarded not so much as a ‘friend of the court’ than as a ‘friend of the state party’. 37 Particularly in the context of poverty concerns, amici curiae have, in practice, often promulgated views in support of the state’s defence of its actions or have expressed views and perspectives otherwise sympathetic to the state’s arguments. For that reason, investors currently regard amici curiae with scepticism and, to the extent that consent of both parties is required for any element of amici curiae participation, are likely to veto it. Moreover, the limited access granted to amici curiae to the pleadings in the dispute can result in amici giving opinions based on inaccurate or incomplete information, and therefore limit the effectiveness of their 34 Cf. generally on amici curiae J. Harrison, ‘Human Rights Arguments in Amicus Curiae Submissions: Promoting Social Justice?’ in Dupuy et al., Human Rights, pp. 396 et seq. 35 Cf. F. Francioni, ‘Access to Justice, Denial of Justice and International Investment Law’, European Journal of International Law, 20(3) (2009), 729, 740. 36 See ICSID Arbitration Rules, Rule 32(2). Cf. also for a similar rule NAFTA Free Trade Commission, Statement of the Free Trade Commission on non-disputing party partici- pation, 7 October 2003, 44 ILM 796 (2005). 37 Cf. Harrison, ‘Human Rights Arguments’, p. 405.

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  Environment and Trade

  A Guide to WTO Jurisprudence

  • Nathalie Bernasconi-Osterwalder, Daniel Magraw, Maria Julia Oliva, Elisabeth Tuerk, Marcos Orellana(Authors)
  • 2012(Publication Date)
  • Taylor & Francis

    (Publisher)

  In 1992, at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, the world community for the first time officially acknowledged public participation as a critical component to effective development. Principle 10 of the Rio Declaration on Environment and Development explicitly endorses the necessity of access to information, access to decision making, and access to justice in environmental decision making. In the decade since Rio, public involvement in domestic decision making has increased worldwide. Both countries and regions have undertaken initiatives to promote public involvement, as part of the recent emphasis on good governance. In short, people all over the world want to know what their governments are doing and to have a say in those decisions that affect their lives.

  The same is increasingly true in the area of international policy making. The public has come to conceive international institutions as functioning under outdated models of governance and diplomacy. Addressing this concern, Agenda 21, a detailed action plan for realizing the Rio Declaration’s goals, provides that the ‘United Nations system, including international finance and development agencies, and all intergovernmental organizations and forums’, should enhance or establish procedures to draw upon the expertise and views of civil society and to provide access to information.

  This chapter examines how the emerging issues relating to public participation are addressed in the World Trade Organization’s (WTO’s) dispute settlement process, with a focus on Amicus Curiae submissions.

  Public Participation in the WTO’s Dispute Settlement Process

  A fundamental characteristic of the WTO’s dispute settlement system is that it is limited to claims brought by governments against other governments. Consequently, the submission of amicus briefs is currently the only means through which non-Members, including businesses, civil society groups and individuals, can present their views directly to the WTO’s dispute settlement tribunals. An amicus brief is a written document, submitted by an Amicus Curiae (friend of the court), with the permission of the court, tribunal or dispute settlement body hearing the dispute in question. An Amicus Curiae is not a party to the dispute, but is instead an interested non-party – for example, an individual, corporation or non-governmental organization (NGO) – that wishes to bring certain matters of fact or law to the attention of the court (see

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  International Judicial Review

  When Should International Courts Intervene?

  • Shai Dothan(Author)
  • 2020(Publication Date)
  • Cambridge University Press

    (Publisher)

  2 Friends of the Court Amicus Curiae briefs are a great way for an international court to receive valuable information and legal advice. In return for these benefits, NGOs that serve as friends of the court expect to influence judicial decisions. Many international courts preserve a substantial amount of discretion on which briefs they accept and which they choose to reject. For example, the ECHR’s President is granted the authority to invite anyone who is not an applicant to submit written comments or to take part in the court’s hearings. 7 In 1982, the rules of the court first recog- nized the position of Amicus Curiae, although such interventions existed even before that date. 8 The rules of the court instruct the Chamber’s President to allow interventions that are in the interest of the proper administration of justice and to let interveners participate in hearings in exceptional circumstances. Clearly, the rules give the President wide discretion. They even allow the President to set conditions for the intervention and to exclude the brief from the case file if these conditions are violated. 9 The regulation of participation as friends of the court before the WTO AB is even less strictly defined. In fact, this court didn’t have clear rules on the issue and had to shape the relevant rules by interpretation. In the Shrimp Turtle case, the Appellate Body decided to reject the Panel’s 5 European Convention on Human Rights, Art. 33. 6 See Dragoljub Popovic, Prevailing of Judicial Activism over Self-Restraint in the Jurispru- dence of the European Court of Human Rights, 42 C L. R. 361, 372 (2009). 7 European Convention on Human Rights, Art. 36(2). 8 See L H, NGO   S  H R  E 37–38 (2011). 9 ECHR – Rules of Court, Rule 44(4).     ?  interpretation and allow NGOs to submit briefs even if they were not formally requested to do so by the Panel.

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