No to "Amicus Curiae" briefs - Analysis of the Canadian FiT case: Part I

The Canadian FiT case (WT/DS412/426) in the WTO does bring to the fore many issues concerning local content in Feed-in tariff programmes. The WTO Panel essentially found that the domestic content requirement in Ontario's Feed-in tariff program was inconsistent with Canada's obligations under GATT and TRIMS and violated the national treatment principle by providing a less favorable treatment to imported goods as compared to local goods.It however declined to hold the measure as a subsidy since it felt that no "benefit" was conferred. I have blogged on the issue here, here and here.

The WTO panel decision was the first instance where the WTO dispute settlement mechanism decided on renewable energy programs compatibility with WTO law. While the case is a fertile ground for discussion on issues of violation of national treatment, TRIMs as well as the ASCM, it has major implications for FiT programs that are implemented across the world. The applicability of the defence of Article III:8(a) GATT to a GATT and TRIMs violation has been aluded to in detail. The concepts of "financial contribution" and "benefit" in the ASCM have been authoritatively explained.  I recently completed a paper on Renewable Energy Support programs which is available here and may have to revisit the conclusions in the light of the findings here.

While the decision is almost certainly to be appealed against and will be legally dissected by experts in the coming days, I will, through a number of posts in this blog in the coming days, touch upon important issues that the panel report addressed.

Here is part I of the series. For starters, I found this interesting about the Panel report:

1. The panel was chaired by Thomas Cottier who is considered an authority on WTO law and the intersection of trade and environment. he has also extensively written on energy and WTO law.

2. Regarding amicus curiae briefs, the panel seemed to be lukewarm to several "unsolicited" briefs. It held:

"D. AMICUS CURIAE BRIEFS 

1.12 On 14 May 2012, the Panel received an unsolicited amicus curiae brief relating to both disputes from the following organizations: Blue Green Canada; the Canadian Auto Workers (CAW); the Communications, Energy and Paperworkers Union of Canada (CEP); the Canadian Federation of Students (CFS); the Council of Canadians; the Canadian Union of Public Employees (CUPE); and the Ontario Public Service Employees Union (OPSEU). On 15 May 2012, the Panel in WT/DS412 received a second unsolicited amicus curiae brief from the following organizations: the International Institute for Sustainable Development (IISD); the Canadian Environmental Law Association (CELA); and Ecojustice Canada. 

1.13 During the second substantive meeting of the Panel with the parties, Japan, the European Union and Canada recalled that it is within the discretion of the Panel to accept or reject the unsolicited amicus curiae briefs. Subsequently, and consistent with the approach taken by previous panels, the Panel informed the parties that it would take the briefs into account only to the extent the parties decided to incorporate them into their own submissions. Canada informed the Panel that it had no comments to add on this issue beyond what Canada had already stated at the second substantive meeting with the Panel, namely that it is within the discretion of the Panel to accept or reject the unsolicited amicus curiae briefs. Japan and the European Union (the "complainants") informed the Panel that they did not consider it necessary to incorporate any of the observations made in the amicus curiae briefs. In the light of the parties' views, the Panel did not find it necessary to take the briefs into account in its analysis of the claims and arguments made in these disputes."

The Panel suggested that amicus curiae briefs would be taken into account "only to the extent the parties decided to incorporate them into their own submissions."What implications does this have on the jurisprudence of the reliance of amicus curiae briefs in WTO dispute settlement proceedings. Does it imply that "independent", "non-party" (non-State/government) briefs are not acceptable to the Panel? Is this a positive sign? While reliance on amicus curiae briefs for arriving at a decision may not be necessary, is the decision not to consider them at all a step in the right direction?is here a resistance of member countries to accept amicus curiae briefs? Are amicus curiae briefs non-representational and aimed at espousing vested interests all the time? Ofcourse, amicus curiae briefs may not represent the will of the member countries but can they be important sources of expert opinion, third party interests, jurisprudence and understanding? While the terms of admissibility may be debated, can the "incorporation" by the parties of the amicus curiae vireo be the only ground for acceptance. If that were the case, there would be no need for amicus curiae briefs itself. Some scholarly works on amicus curiae briefs and WTO are found here, here, here  and here. Am I missing something here?

More on the issues of the compatibility of the Ontario FiT programme with TRIMs, GATT and the interpretation of a subsidy under the ASCM (financial contribution and benefit)in the coming days here.