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

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 ofamicus curiaebriefs in theEC-Asbestoscase.1The question of public participation in WTO dispute settlement proceedings is sensitive to many WTO Members, and in expressly encouraging the submission ofamicusbriefs in this way the Appellate Body was felt to be overstepping its functions.2In the end, this dispute settled with a draw, the Appellate Body deciding that it had no need to consider any of theamicusbriefs submitted in that particular case, and yet still maintaining that panels and the Appellate Body have the right to take unsolicitedamicusbriefs into account, should they so choose.