Amici curiae in civil law jurisdictions.

• Author: Kochevar, Steven

Amicus briefs are an ancient legal instrument, originating in Roman law and appearing early in the common law tradition. (1) They are now used frequently in common law jurisdictions around the world, particularly the United States. (2) In recent decades, they have become well established in international adjudicatory proceedings as well. (3) These two developments--the use of amicus briefs in common law courts and in international proceedingshave been well documented and much discussed. (4) However, a more recent trend seems to have evaded thorough treatment by commentators (5): amicus briefs in civil law courts that historically have not accepted them.

This Comment seeks to document this development and to suggest some factors that may be responsible for it. In particular, this Comment points out that courts in civil law countries in different regions around the world now accept amicus briefs. In addition, nongovernmental organizations (NGOs) routinely submit amicus briefs to civil law jurisdictions that do not officially accept them. This Comment offers some explanations for these trends, including the global influence of NGOs, the long reach of international law, and the distinctly civil law aspects of amicus submissions.

1. BACKGROUND AND DEFINITION

   At the outset, it should be noted that the purpose and form of amicus briefs have not been stable across time or across the different jurisdictions in which they appear. In the United States, for example, amicus briefs have shifted "from a source of neutral information to a flexible tactical instrument available to litigants and third parties." (6) This instability has been facilitated by the wide discretion given to most courts over when and how to accept amicus briefs. Often, the procedural rules providing for amicus briefs offer little in the way of standards for their form or use. (7)

   Nonetheless, ifamicus briefs are to be examined at any level of generality, it is necessary to establish some defining characteristics. This Comment proposes the following definition: "amicus briefs" are documents voluntarily submitted to a court (1) by an entity other than a party to a dispute or an officer of the court, (8) (2) such that the entity retains substantial discretion over the content of the submission. This definition aims to capture the meaningful aspect of amicus submissions, namely that disinterested parties may offer input in court proceedings, while still allowing for a broad range of procedural and functional diversity. Accordingly, it contains no procedural element, nor does it specify any role for judges in soliciting or filtering amicus materials. The definition performs reasonably well at formalizing intuitive categorizations of different actors as amici curiae. For example, the definition includes third-party submissions to adjudicatory proceedings at the World Trade Organization (WTO) at both the panel and Appellate Body levels. (9) However, the definition excludes the activities of court officers who submit neutral information or research to courts, usually in civil law jurisdictions, such as the Advocates General of the Court of Justice of the European Union (ECJ), (10) rapporteurs publics in France, (11) or Vertreter des offentlichen Interesses ("representatives of the public interest") in Germany. (12) It also excludes responses to subpoenas duces tecum, answers to interrogatories, and expert testimony, as well as their analogues in inquisitorial courts.

2. THE FIRST TWO DEVELOPMENTS: AMICUS ACTIVITY IN COMMON LAW JURISDICTIONS AND INTERNATIONAL ADJUDICATORY SYSTEMS

   1. Amicus Briefs in Common Law Jurisdictions

      Essentially every common law jurisdiction in the world, from Australia13 to Kenya (14) to Hong Kong, (15) recognizes some form of amicus participation. The widespread recognition of amici across common law legal systems is not particularly remarkable, given these systems' shared historical origins.

      One aspect of amicus practice in common law courts should be remarked upon, however. Amicus briefs constitute a fundamental departure from the traditionally adversarial methods of common law courts. Gorod argues that "there has been no effort to square the [U.S. Supreme] Court's reliance on amicus briefs with its purported commitment to an adversarial system of justice." (16) Moreover, "amicus practice presents, at best, a limited and ad hoc opportunity for the presentation of adversarial ideas, not the structured opportunity for give-and-take presented by the party-centered adversarial system." (17) In this way, the acceptance of amicus submissions appears more similar to the fact-gathering methods of some inquisitorial civil law courts. Particularly in common law jurisdictions such as the United Kingdom (18) or Canada, (19) where courts may appoint amici curiae to gather and submit research, amicus activity constitutes a civil law moment-one in -which a court can gather facts without relying on the efforts of the disputing parties before it. (20)

   2. Amicus Briefs in International Courts

      Many international courts and adjudicatory bodies, such as the Inter-American Court of Human Rights (IACrtHR) (21) and the European Court of Human Rights (ECtHR), (22) accept amicus materials. Amicus participation is also allowed in many international investment arbitrations. (23) For example, Chapter 11 tribunals under the North American Free Trade Agreement (NAFTA) may accept amicus briefs. (24) One aspect of amicus activity at the international level that deserves special mention is the role of nongovernmental organizations (NGOs). NGOs, often based in the developed world, (25) regularly offer input as amici in international proceedings. (26) More importantly, NGOs played a key role in convincing international tribunals to begin accepting amicus briefs. Professor Shelton, for instance, identifies NGOs as some of the earliest actors that asked to submit amicus materials at the ECtHR and IACrtHR. (27) The role of NGOs was even more pronounced in the international investment arbitration context: "[t]he early cases to grant third-party intervention rights in investment disputes overwhelmingly involved NGOs and civil society groups." (28) However, the involvement of NGOs as amici in international proceedings has been sharply contested. Debate concerning the proper role of NGOs at the WTO and in international investment arbitrations has been particularly intense. (29) Supporters claim that amicus activity by NGOs helps to remedy deficits of participation and legitimacy at the international level. (30) With such benefits in mind, some commentators have cited amicus activity as a component of evolving global administrative law norms. (31) Opponents, including many developing countries, argue that amicus participation by NGOs gives these organizations too much influence and unfairly benefits developed countries. (32) To the extent that the common law correlates with economic development, (33) the common law origins of amicus activity also map onto this dispute. One commentator has stated that "the introduction of amici participation into investment arbitration may be seen as representing a victory of the common law over the civil law, and of the developed world over the developing world." (34)

3. THE THIRD DEVELOPMENT: CIVIL LAW AMICUS CURIAE

   Historically, amicus briefs did not appear in modern civil law jurisdictions. Today, although civil law amicus practice is by no means universal, amicus briefs appear, formally or informally, in civil law courts around the world. This broad development can be split into two trends. First, various civil law jurisdictions have formally recognized amicus activity through rules, statutes, or court decisions. Second, NGOs regularly submit amicus briefs to civil law courts, even when such courts have adopted no formal mechanisms to accept their submissions. Both trends are interregional and relatively recent.

   1. Formal Recognition of Amicus Briefs in Civil Law Courts

      Latin America, in particular, has seen a number of court systems alter their procedural rules to formally accept amicus briefs. In 1999, Brazil passed legislation authorizing amicus practice in the Brazilian constitutional court. (35) However, it appears amicus practice existed in Brazil prior to this legislation in various forms, including in the requirement that different Brazilian government agencies, such as the Brazilian securities commission, appear in cases pertaining to their area of expertise. (36) In 2004, the Supreme Court of Argentina (37) and the Constitutional Court of Peru (38) explicitly allowed the use of amicus briefs. In Argentina, as in Brazil, this move may not have represented profound change so much as formal recognition of past, although still fairly recent, informal practice. (39) Finally, Mexico amended its civil procedure code to authorize amici curiae in 2011. (40)

      Across the Atlantic, the national courts of every member state of the European Union must recognize a form of amicus participation: under European Council regulations, the antitrust authorities of the member states as well as the European Commission may submit written observations to national courts on proceedings related to antitrust. (41) The antitrust authorities or the Commission may also provide oral observations with court permission. (42) In addition, the national courts may request amicus submissions from competition authorities or the Commission in antitrust proceedings. (43) The Netherlands, for example, has implemented these Council regulations through legislation because its civil procedure law did not previously allow amicus curiae. (44)

      European Council regulations aside, some countries in Europe have formally recognized amicus briefs more broadly. In France, amicus briefs have gradually spread through the nation's different court systems. (45) A lower court requested and received an amicus brief in 1988, (46) and...