WORLD TRADE
ORGANIZATIONWT/GC/38
4 December 2000
(00-5238)
Original:  Spanish
DECISION BY THE APPELLATE BODY CONCERNING
AMICUS CURIAE BRIEFS
Statement by Uruguay at the General Council
on 22 November 2000
The following statement was made by the delegation of Uruguay at the meeting of the
General Council held on 22 November 2000 with regard to amicus curiae  briefs, with the request that
it be circulated to Members.
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Before beginning the substantive part of our statement, we should like to thank you and the
Secretariat for the factual report that has been made available to us.  This has proved useful for our
analysis, although it has not essentially changed it.  In fact, it has given rise to some additional
concerns that we shall mention below and it identifies the moment when, in our opinion, a different
procedure should have been followed.
I should also like to thank the Ambassadress of Egypt who, in her capacity as coordinator of
the Informal Group of Developing Countries, requested this meeting and introduced the subject.We shall develop further some of her arguments from our own point of view.
The delegation of Uruguay supported the calling of this special meeting of the General
Council since it believes that this is a subject of fundamental systemic importance for the World
Trade Organization.  We consider that this is the proper forum to debate it, since it is the highest bodyof the Organization when the Ministerial Conference is not in session, and the only body authorized to
interpret the Agreements.
The dispute settlement system of this Organization has been described as the "jewel" of the
achievements of the Uruguay Round.  We must not allow this jewel to lose its brilliance or its value.If the Members cease to have confidence in this dispute settlement system – which is unique at the
international level – they will lose a fundamental tool for the defence of their interests and will find
themselves worse off than before.
It is for this reason that we view this debate not as a means of questioning the Dispute
Settlement Understanding nor as an attempt to weaken  the institutions that govern this process, but as
a way of clarifying and reaffirming the powers or terms of reference of each of the parts that allow the
multilateral trading system to operate.  In concrete terms, we are initiating a process which, we hope,
will help to carry out the task of interpreting th e Agreements and consequently strengthen the WTO.
The WTO is an agreement of a contractual nature that is qualitatively different from other
international agreements in the sense that the obligations that flow from this contract include the strictWT/GC/38
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fulfilment of the decisions of the Dispute Settlement Body to the extent of diminishing the decision-
making capacity of the Members.  Insofar as the Members are mainly States, the political effect of this
situation is of no little consequence.
It is for this reason that any decision by the bodies that make up the system cannot be taken
lightly, but must be firmly based on the provisions of the Agreements that were duly signed and
ratified by the respective governments and parliaments.
It is in this context that we view with very great concern the appearance and mass circulation
outside the Organization of document WT/DS135/9 in which the Appellate Body has established an
additional procedure for the submission of written briefs from persons or institutions that are neither
parties nor third parties in a particular dispute that is at the appeal stage.  Our concern is based on thefact that notwithstanding the positive intention that  inspired this document its form, its substance and
the way it has been handled  affect the rights and obligations of the Members of the Organization and,
moreover, alter the relationship between the bodies within the system.
Let us consider the following points:
1. Article V.2 of the Agreement Establishing the WTO states:  "The General Council may make
appropriate arrangements for consultation and cooperation with non-governmental organizations
concerned with matters related to those of the WTO".  In our opinion, that means that it is the General
Council which has the statutory right to decide th e forms that relations with NGOs will take, including
those concerning the settlement of disputes.
2. Article IX.2 of the same Agreement provides that the General Council shall have
"the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade
Agreements".  This is a point that we have already mentioned.
3. Article 17.3 of the Dispute Settlement Understanding states that the Members shall elect to
the Appellate Body "persons of recognized authority, with demonstrated expertise in law,
international trade and the subject matter of the covered Agreements generally".  We have no doubt
whatsoever as to the suitability and expertise of those persons presently serving on the
Appellate Body.
4. Article 17.6 of the DSU also states that an appeal shall be limited to "issues of  law covered in
the panel report and legal interpretations developed by the panel".  The concrete and specific function
of the Appellate Body is thus clearly determined.5. Paragraph 9 of this same Article states that the working procedures of the Appellate Body
shall be drawn up in consultation with the Chairman of the DSB and the Director-General.
The application of this provision is a matter of great importance.
Let us now examine the situation taking these provisions into account.
Although this document is presented to us as an explanatory note under Rule 16(1) of the
Working Procedures, its practical effect is that the Appellate Body is adopting decisions on relations
with NGOs, and such decisions, as we have already noted, statutorily belong to the General Council.
Consequently, this is not a matter of clarifying procedures, but of upsetting the balance of the
functions of each body involved.
In view of this practical outcome, we do not agree that it is a matter of procedure, but rather,
in our opinion, a matter of substance which affects the working procedures and which should at leastWT/GC/38
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be subject to consultation with the Chairman of the DSB and the Director-General, in accordance with
the above-mentioned Article 17.9.
So much for the question of form.
As for the substance, we believe that the practical effect has been to grant individuals and
institutions outside the Organization a right that th e Members themselves do not possess.  In fact, this
procedure allows such institutions to present their points of view and possibly even influence a purely
legal and interpretative decision of the rules in a specif ic case, while that right is reserved solely to the
parties and third parties to a dispute, even being refused to the other Members of the Organization.
We consider this to be highly inappropriate because it alters an Agreement negotiated and adopted
multilaterally and, in particular, because this subject was discussed during the negotiations of the
Uruguay Round, but was not incorporated into the DSU.
Furthermore, the procedure limits the rights of the parties and third parties.  The last
paragraph of Section 1 of the factual background note states that the decision gives the parties and the
third parties a full and adequate opportunity to comment on and respond to the submissions.
However, the fact is that this is not possible within the short and mandatory time-limits which theAppellate Body has to meet in its work.
Moreover, we believe that the members of the Appellate Body have the capacity, knowledge
and experience necessary to take the legal decisions incumbent upon them without any outside help.
We come now to the way this communication has been handled.  The Secretariat in its factual
background note draws attention to its own pro cedures for increasing the knowledge and
understanding of the interested institutions and individuals.  We are not questioning these procedures
per se .  However, we believe that the Secretariat cannot act on "automatic pilot" on sensitive issues,
especially in the case of the procedures for the settlement of disputes.  Secretariat officials need tohave a fine sense of how to adapt their communications to needs and know when they should be
proactive and when they should exercise self control or show moderation.  The different divisions
cannot act in ignorance of what is happening in the areas of competence of other divisions and still
less in ignorance of the atmosphere prevailing in the Organization and the feelings of its Members.
In conclusion, Mr. Chairman, the preceding analysis, although extensive, has been necessary
to justify the following positive conclusions:
(a) The decision of the Division of the Appellate Body in this case, despite its
praise-worthy intentions, together with premature action on the part of the Secretariat,
has had the practical effect of altering the agreements, which it is not in its terms of
reference to do.
(b) The Appellate Body must restrict itself to establishing whether a Panel has correctly
applied or interpreted the rules in a specific case.  However, insofar it knows that its
decisions will set precedents, when it identifies difficulties that arise from the wider
interpretation of the Agreements it should inform the General Council so that thelatter may take the decisions incumbent upon it.  [Thus, we believe that in the US –
Shrimp  case, referred to in the Secretariat's background document, when the
Appellate Body decided to reject the Panel's interpretation of its powers under
Article 13 of the DSU, it should have informed the General Council of this situation
so as to obtain an interpretation that could be applied in other cases].
(c) The General Council has begun today its consideration of the amicus curiae  briefs
sent to the Panels and the Appellate Body.  This is a matter of interpretation havingWT/GC/38
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systemic effects that is the responsibility of the General Council.  Consequently, we
request that this matter be placed on the regular agenda of the General Council and
that the Chairman take the appropriate measures in the case so that this Council can
adopt an interpretation of general application.
(d) Panels and the Appellate Body should refrain from acting in this matter until the
General Council has given its interpretation.
I request that this statement be published as an official document of the General Council and
circulated as a background document when this matter is discussed at the forthcoming meetings of the
General Council.
Thank you very much.
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