Recent Trends and Perspectives for Non-State Actor Participation in World Trade Organization Disputes

Recent trends in World Trade Organization (WTO) disputes show non-state actors play an increasingly significant role in the resolution of disputes between WTO Members. First, the Appellate Body has interpreted the Right to Seek Information in Article XIII of the Dispute Settlement Understanding (DSU) as permitting non-state actors, particularly non-governmental organizations, to submit amicus curiae briefs in WTO disputes. Second, non-governmental legal counsel has played active roles in recent disputes. Third, private counsel to business interests have played an indirect role in dispute settlement, by assisting in formulation of legal strategy in WTO disputes. Because the WTO is reviewing the DSU before any new negotiation or reform of the dispute settlement mechanism occurs, the incorporation of non-state actors in WTO dispute settlement is a relevant concern. Similarly, the mass protests by movements representing civil society at Seattle in 1999 demonstrate non-state voices have an interest in WTO developments. Labor, human rights, and environmental groups expressed strong interest in participating in the WTO. There is a nexus between international trade and the objectives of private business and Non-Governmental Organizations (NGOs). This nexus has caused the WTO dispute resolution mechanism to incorporate the participation non-state actors. This essay answers the question: whether the WTO dispute resolution mechanism incorporates non-state actors? This essay first examines the interest non-state actors, business and NGOs, have in the WTO. Second, this essay analyzes the functions of WTO dispute Panels, the Appellate Body, and the Dispute Settlement Body, as decided in the DSU and recent WTO disputes. Third, there is an examination of the increasing role of private counsel in WTO dispute resolution. Fourth, this essay explores the important function of amicus curiae participation by NGOs in international courts. Amicus curiae briefs provide non-state actors a way to express their concerns regarding the resolution of WTO disputes. Fifth, there is an examination of how amicus curiae briefs have been used in WTO dispute proceedings. The content of these briefs points to new potential avenues for non-state actors in WTO disputes. Sixth, in conclusion this essay argues that amicus curiae briefs provide for valuable incorporation of non-state actors into the WTO dispute resolution mechanism