THE SEPARATION OF POWERS IN THE WTO: HOW TO AVOID JUDICIAL ACTIVISM
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jats:pAs 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 ofjats:italicamicus curiae</jats:italic>briefs in thejats:italicEC-Asbestos</jats:italic>case.jats:sup1</jats:sup>The question of public participation in WTO dispute settlement proceedings is sensitive to many WTO Members, and in expressly encouraging the submission ofjats:italicamicus</jats:italic>briefs in this way the Appellate Body was felt to be overstepping its functions.jats:sup2</jats:sup>In the end, this dispute settled with a draw, the Appellate Body deciding that it had no need to consider any of thejats:italicamicus</jats:italic>briefs submitted in that particular case, and yet still maintaining that panels and the Appellate Body have the right to take unsolicitedjats:italicamicus</jats:italic>briefs into account, should they so choose.</jats:p>
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1471-6895