International and Comparative Law Quarterly

Articles

THE SEPARATION OF POWERS IN THE WTO: HOW TO AVOID JUDICIAL ACTIVISM

Lorand Bartels*

Abstract

As with other legal systems based on a separation of powers, the World Trade Organization is marked by a degree of tension between its political organs and its quasi-judicial organs, in particular the Appellate Body. In late 2000 this tension spilled out into the public domain, when the Appellate Body announced a procedure for the filing of amicus curiae briefs in the EC-Asbestos case.1 The question of public participation in WTO dispute settlement proceedings is sensitive to many WTO Members, and in expressly encouraging the submission of amicus briefs in this way the Appellate Body was felt to be overstepping its functions.2 In the end, this dispute settled with a draw, the Appellate Body deciding that it had no need to consider any of the amicus briefs submitted in that particular case, and yet still maintaining that panels and the Appellate Body have the right to take unsolicited amicus briefs into account, should they so choose.

Footnotes

* Lecturer in International Economic Law, University of Edinburgh. A draft of this paper was presented at the Symposium on Dispute Settlement Reform, College of Europe, 5–6 Dec 2003. I am very grateful to the participants at this Symposium for their reactions. I have also been privileged to receive comments from Dapo Akande, Alan Boyle, Steve Charnovitz, Ignacio Garcia Bercero, Bill Davey, Ret Eeckhout, Lothar Ehring, Paolo Garzotti, Rob Howse, Petros Mavroidis, Edmond McGovern, Federico Ortino, Philip Pierros, and Soren Schonberg. All errors are my own.