Amicus Briefs CSP

COMPARATIVE STATE PRACTICE ON
AMICUS CURIAE PARTICIPATION

Legal Memorandum

2012

Comparative State Practice on Amicus Curiae Participation, 2012

COMPARATIVE STATE PRACTICE ON AMICUS CURIAE PARTICIPATION

Executive Summary

The concept of amicus curiae allows a court to permit third parties, who are
not otherwise involved in proceedings, to provide legal or factual information
relevant to proceedings before it. In recent decades it has become an established
practice which has enabled a range of third party participants, including
individuals, foreign governments, and non-governmental organizations to
participate in legal proceedings.

A significant number of domestic and international courts and tribunals
permit amicus participation. The procedure and requirements for third party
participation varies among these courts. It is therefore helpful to examine the
procedure and practice in certain jurisdictions in order to understand how amicus
participation has developed and aided courts and tribunals in the administration of
justice.

That exercise also helps in identifying the principal benefits of amicus
participation, which may be summarised as follows:

(a) it may provide information not otherwise available to the court;
(b) it may provide relevant legal arguments not otherwise
submitted by the parties;
(c) it may provide insights into the broader implications of a
decision that are not immediately relevant to the parties; and
(d) it may display openness by the court and permits citizens to
actively participate in the judicial process.

This is not to say that amicus participation is universally popular as it has
been subject to some criticism. However, there are reasonable arguments in
response to such criticisms.

Comparative State Practice on Amicus Curiae Participation, 2012

TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Overview of the Adoption of Amicus Briefs and Third Party Participation 2
Common Law Jurisdictions 2
England and Wales 2
United States 5
Canada 8
Civil Law Jurisdictions 9
Germany 9
France 11
Argentina 13
Romania 14
Other Eastern European and Balkan Jurisdictions 15
International Courts 15
European Court of Human Rights (ECtHR) 15
Inter-American Court of Human Rights (IAC) 16
United Nationas Criminal Tribunals 16
The World Trade Organization (WTO) 17
The International Centre for the Settlement of Investment Disputes
(ICSID) 17
Institutions of the European Union 18
Domestic Courts Seeking Amicus Participation 19

The Benefits of Amicus Participation 20
The Provision of Information 20
The Provision of Legal Opinion 21
Informing Courts of the Interests of Those Other Than the Parties 22
Openness and Access to Justice 23
Constitutional and Supreme Courts 23

Objections to Amicus Participation 24
Costs and Workload 25
Character of the Amicus 26

Conclusion 27

Comparative State Practice on Amicus Curiae Participation, March 2012
1

COMPARATIVE STATE PRACTICE ON AMICUS CURIAE PARTICIPATION

Statement of Purpose

Third party briefs are filed as amicus curiae in judicial proceedings before
common and civil law jurisdictions as well as international tribunals. The purpose
of this memorandum is to identify the types of arguments in favour of amicus
participation to be used in court submissions.

Introduction

The concept of amicus curiae (literally friend of the court in Latin, the
plural of which is amici
1
) allows a court to permit third parties to provide legal or
factual information relevant to proceedings before it.
2
The practice has its
foundations in Roman law, but it is in recent decades that it has become established
in domestic and international courts and tribunals.
3
Amicus participation is a
means to assist courts and tribunals in gathering information or hearing legal
argument that the parties to the proceedings may not otherwise present.
4
Amicus
participation generally takes the form of written submissions, although amici may
be permitted or requested to make oral submissions.
5

Amicus participation has not been limited to any one particular group and
has involved a range of participants, including individuals, foreign governments,
and non-governmental organizations (NGOs). It is recognized that amici are no
longer disinterested parties. The amicus may be a potential litigant in similar
proceedings, an ally of one of the parties, or the representative of an interest not
otherwise represented.
6
An amicus is distinct from a party to proceedings. A
party, whether plaintiff or defendant, appellant or respondent, or prosecutor or
accused, has an immediate and direct interest in the outcome of the case. An
amicus does not.

Generally, permission to participate as an amicus has been a matter of grace
rather than right.
7
Courts and tribunals have commonly avoided a precise
definition of the conditions justifying permitting such participation. Indeed, many

1
Pronounced uh-mee-kee.
2
Amicus Curiae, AMICUS CURIAE, available at http://amicuscuriae.org/.
3
4
5
Amicus Curiae, AMICUS CURIAE, available at http://amicuscuriae.org/
6
Gregory S. Coleman, Amicus Curiae Briefs, 1 (2003), available at http://tex-app.org/articles/amicusbriefs.pdf.
7
Gregory S. Coleman, Amicus Curiae Briefs, 1 (2003), available at http://tex-app.org/articles/amicusbriefs.pdf.
2

systems that permit amicus participation require only that the courts consider the
interests of justice, leaving the matter to the complete discretion of the judges.
8

This has not only increased judicial discretion, but has also given maximum
flexibility to amicus participation.

Certain jurisdictions operate mechanisms for third party participation,
which, although not termed amicus curiae, provide a functional equivalent. As
outlined below, England, Wales, and Germany are prime examples. For the
purposes of this memorandum, references are made to amicus participation
regardless of how that form of participation may be termed in each specific
jurisdiction.

Overview of the Adoption of Amicus Briefs and Third Party Participation

The procedure and requirements for third party participation vary among
different domestic and international jurisdictions. These requirements are explored
below in: (i) common law jurisdictions; (ii) civil law jurisdictions; and (iii)
international courts and tribunals. The purpose of this overview is not to provide a
detailed analysis of the procedure in each court or tribunal. Rather, it is intended to
demonstrate how amicus participation has developed in certain jurisdictions, what
standards for participation are required, and how such participation has aided
courts and tribunals in the administration of justice. It is also helpful to understand
how widely amicus participation has been adopted and embraced by domestic legal
systems, international courts, and tribunals.

Common Law Jurisdictions

England and Wales
Amicus curiae under English law originally developed as an instrument of
the court to be utilized in cases in which the court felt that the parties themselves
were not able to help the court resolve the case.
9
The amicus was therefore a
neutral figure invited to assist the court with submissions on a point of law, for
example the interpretation of foreign law.
10
The amicus curiae is now referred to

8
Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 FLORIDA STATE UNIVERSITY LAW REView 315
(2008), available at .http://law.fsu.edu/journals/lawreview/downloads/352/garcia.pdf.
9
Jason Chandler, Foreign Law A Friend of the Court: An Argument For Prudent Use of International Law in
Domestic, Human Rights Related Constitutional Decisions, 34 SUFFOLK TRANSNATIONAL LAW REVIEW 117, 137
(2011).
10
Jason Chandler, Foreign Law A Friend of the Court: An Argument For Prudent Use of International Law in
Domestic, Human Rights Related Constitutional Decisions, 34 SUFFOLK TRANSNATIONAL LAW REVIEW 117, 137
(2011).
3

as an Advocate to the Court and remains a non-partisan figure who is
appointed by the Attorney General at the request of the court.
11

The functional equivalent in England and Wales to an amicus curiae in other
jurisdictions is now the intervener.
12
The term intervener is often used to
include both amicus curiae and third parties who intervene to protect their
interests.
13
Third party intervention is a relatively recent development in England
and Wales. The earliest third party interventions were by public bodies and
intergovernmental organizations in the 1970s, evidenced by the Equal
Opportunities Commission being invited to intervene.
14
This coincided with a
growth in public interest litigation before the English Courts.
15
The House of
Lords did not permit intervention by an NGO until 1995, when it granted leave to
the NGO Liberty to intervene and make written submissions on Article 8 of the
European Convention on Human Rights in the case of R v Khan.
16
Since then, the
number of third party interventions has grown steadily each year.
17
One factor
identified as potentially contributing to the increase in third party interventions in
the late 1990s is the passing of the Human Rights Act of 1998, which incorporated
the European Convention on Human Rights into English law.
18
This may be
because the English Courts were mindful of the significantly more generous
arrangements for amicus participation before the European Court of Human Rights
(discussed below) when considering applications to intervene before them. The
procedure for third party intervention varies between different English Courts, with
the procedural rules of some courts containing no specific provisions. In brief
overview:

In judicial review proceedings any person may apply to the Court for
permission to file evidence or make representations at the hearing.
19
The

11
Memorandum from the Lord Chief Justice and the Attorney General, para. 1 (December 2001), available at
http://www.attorneygeneral.gov.uk/Publications/Documents/Advocates%20to%20the%20Court%202007.pdf.
12
Roger Smith, Why Third-Party Interventions in the Judicial Process Benefits Democracy, LAW SOCIETY
GAZETTE, available at http://www.lawgazette.co.uk/opinion/columnists/third-party-interventions-judicial-process-
are-good-democracy.
13
George Williams, The Amicus Curiae and the Intervener in the High Court of Australia: A Comparative Analysis,
28 FEDERAL LAW REVIEW 365, 366 (2000).
14
Shields v E Coomes (Holdings) Ltd, (1978) 1 WLR 1408.
15
Allen Hays, The Role of Interest Groups, DEMOCRACY PAPERS, available at
http://www.ait.org.tw/infousa/zhtw/DOCS/Demopaper/dmpaper9.html.
16
R v. Khan (1996) 3 WLR 162.
17
To Assist the Court Third Party Interventions in the UK, JUSTICE, 11, 13 (October 2009), available at
http://www.justice.org.uk/resources.php/32/to-assist-the-court.
18
To Assist the Court Third Party Interventions in the UK, JUSTICE, 12 (October 2009), available at
http://www.justice.org.uk/resources.php/32/to-assist-the-court.
19
Civil Procedure Rules art. 54.17 (United Kingdom, 2011), available at
http://www.justice.gov.uk/courts/procedure-rules/civil/pdf/parts/part54.pdf.
4

application must be prompt
20
and must be made by letter to the Administrative
Court identifying the applicant and why and how the applicant wishes to
participate in the hearing.
21
There are no formal criteria for deciding whether to
grant leave to intervene, and the judge decides each application on its own merits.
22

There are no specific provisions for third party intervention in the Court of
Appeal. However, third party interventions may be achieved through the filing of
a formal application notice under Part 23 of the Civil Procedure Rules or a letter to
the Civil Appeals Office.
23
In either case, the applicant must set out the reasons for
the proposed third party intervention and provide details thereof. The applicant
should demonstrate that the parties consent was sought (although their refusal is
not determinative of the application) and that the applicant has information to offer
beyond the parties submissions.
24
The application is first reviewed by the Civil
Appeals Office and, if approved, then is reviewed by a single Court of Appeal
judge.
25
Again, there are no formal criteria for deciding whether to grant leave to
intervene.

Rule 15 of the Supreme Court Rules 2009 (SI 2009/1603) provides for third
party interventions.
26
Applications for leave to intervene are decided on the
papers, or without a hearing, and the standard of admission is the same as was in
the House of Lords, the UK Supreme Courts predecessor.
27
The approach of the
House of Lords is summarised by Lord Hoffman:

It may however be of some assistance in future cases if I comment on
the intervention by the Northern Ireland Human Rights Commission.

20
Civil Procedure Rules art. 54.17 (United Kingdom, 2011), available at
http://www.justice.gov.uk/courts/procedure-rules/civil/pdf/parts/part54.pdf; Practice Direction to Rule 54.17, para.
13.5 (United Kingdom, 2012), available at http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part54a.
21
Practice Direction to Rule 54.17, para. 13.3, (United Kingdom, 2012), available at
http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part54a.
22
http://www.justice.org.uk/data/files/resources/32/To-Assist-the-Court-26-October-2009.pdf.
23
http://www.justice.org.uk/data/files/resources/32/To-Assist-the-Court-26-October-2009.pdf; Civil Procedure Rules
art. 23 (United Kingdom, 2011), available at http://www.justice.gov.uk/courts/procedure-
rules/civil/pdf/parts/part54.pdf.
24
25
To Assist the Court Third Party Interventions in the UK, JUSTICE, 16-17 (October 2009), available at
26
The Supreme Court Rules 2009, Rule 15 (May 2009) available at http://www.supremecourt.gov.uk/files/UK-
Supreme-Court-Rules-2009.pdf.
27
The Supreme Court Rules 2009, Rule 15 (May 2009) available at http://www.supremecourt.gov.uk/files/UK-
Supreme-Court-Rules-2009.pdf.
5

In recent years the House has frequently been assisted by the
submissions of statutory bodies and non-governmental organisations
on questions of general public importance. Leave is given to such
bodies to intervene and make submissions, usually in writing but
sometimes orally from the bar, in the expectation that their fund of
knowledge or particular point of view will enable them to provide the
House with a more rounded picture than it would otherwise obtain.
The House is grateful to such bodies for their help.
28

An example of both the usefulness and potential impact of third party
intervention is provided by the recent UK Supreme Court case of Jivraj v
Hashwani.
29
In that case, the UK Supreme Court had to decide whether an
arbitrator was an employee for the purposes of Employment Equality (Religion or
Belief) Regulations 2003.
30
The London Court of International Arbitration and the
International Chamber of Commerce both intervened arguing that an arbitrator is
not an employee.
31
The UK Supreme Court agreed with this view and overturned
an earlier Court of Appeal decision.
32
Had the Court of Appeals decision been
upheld, a significant number of arbitral awards and arbitration agreements may
have been rendered void.
33
The specialist knowledge of the interveners regarding
arbitration practice and the potential impact of the UK Supreme Court judgement
went well beyond the parties knowledge and expertise.

United States
Of all the common law jurisdictions, the courts of the United States now
have the most robust practice of amicus participation. For a relatively long period
of time, the courts of the United States were reluctant to allow the participation of
amicus curiae.
34
However, by the 19
th
Century, amicus participation had become
established, and the first adversarial amicus participation in the United States was
in the 1823 case of Green v. Biddle.
35
Amici were historically viewed as impartial
individuals whose role was to advise the court rather than to advocate for a

28
Re E (a child) (2008) UKHL 66 at 2, available at
http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081112/inrea-1.htm.
29
Jivraj v. Hashwani (2011) UKSC 40, available at http://uslf.practicallaw.com/5-507-1339?q=&qp=&qo=&qe=.
30
31
32
Jivraj v. Hashwani (2011) UKSC 40, para. 76, available at http://uslf.practicallaw.com/5-507-
1339?q=&qp=&qo=&qe=.
33
Richa Lalwani, Jivraj v. Hashwani: Deflecting the Implications of Declaring an Arbitrator as an Employee,
ARBITRATION LAW JOURNAL, available at http://arbitrationandconciliation.org/2012/03/04/jivraj-v-hashwani-
deflecting-the-implications-of-declaring-an-arbitrator-as-an-employee/.
34
Wayne W. Shmidt, History, Purpose and of Amicus Advocacy: The AELE Amicus Brief Program, AELE,
available at http://www.aele.org/history.html.
35
Green v Biddle, 21 U.S. 1 (1823), available at http://supreme.justia.com/cases/federal/us/21/1/case.html.
6

particular party, but this description became outdated long ago.
36
The first NGO
to appear as as amicus before the US Supreme Court was the Chinese Charitable
and Benevolent Association of New York in 1904.
37
From then on, amicus
participation has flourished; the modern amicus brief arose out of a history of third
parties making amicus submissions that included extensive background material
on the broader implications of court decisions.
38
Amici have played a key role in
a significant number of cases in the United States, including those relating to
matters of significant public importance. Perhaps the best instance of this is the
role played by amici in the civil rights movement in the 1960s as is shown by the
Supreme Courts acceptance of the American Jewish Committees amicus brief in
Brown v. Board of Education.
39

The submission of amici is governed at the appellate level by Rule 29 of the
Federal Rules of Appellate Procedure, and district courts commonly look to this
rule for guidance.
40
Rule 29 provides that a private party may file an amicus brief
if all of the parties to the case consent or if the court gives its consent.
41
However,
federal courts have complete discretion in deciding whether to permit the
participation of an amicus.
42
The success of an application to file an amicus brief
therefore depends on the attitude of the court.
43
Courts have historically exercised
great liberality in permitting amicus participation,
44
although in recent years
some judges have made a point of insisting that amici must provide some type of

36
Neonatology Associates, P.A. v. Commissioner of Internal Revenue, 293 F.3d 128, 131 (3d Cir. 2002), available
at http://law.justia.com/cases/federal/appellate-courts/F3/293/128/521988/.
37
Ah How v United States, 193 U.S. 65 (1904), available at http://supreme.justia.com/cases/federal/us/193/65/.
38
To Assist the Court Third Party Interventions in the UK, JUSTICE, 47 (October, 2009), available at
39
Howard Sachar, Jews in the Civil Rights Movement, MY JEWISH LEARNING, available at
http://www.myjewishlearning.com/history/Modern_History/1948-1980/America/Liberal_Politics/Black-
Jewish_Relations/Civil_Rights_Movement.shtml.
40
Leigh v. Engle, 535 F. Supp. 418, 422 (N.D. Ill. 1982), available at
http://scholar.google.com/scholar_case?case=13429771086574571897&q=Leigh+v.+Engle,+535+F.+Supp.+418&h
l=en&as_sdt=2,10&as_vis=1; Martinez v. Capital Cities/ABC-WPVI, 909 F. Supp. 283, 286 (E.D. Pa. 1995),
available at
http://scholar.google.com/scholar_case?case=17154802679764707622&hl=en&as_sdt=2&as_vis=1&oi=scholarr.
41
Rule 29. Brief of an Amicus Curiae, LEGAL INFORMATION INSTITUTE, available at
http://www.law.cornell.edu/rules/frap/rule_29.
42
Fluor Corporation v. United States, 35 Fed. Cl. 284, 285 (1996).
43
P. Stephen Gidiere III, The Facts and Fictions of Amicus Curiae Practice in the Eleventh Circuit Court of
Appeals, 5 SETON HALL CIRCUIT REVIEW 1, 12 (2008), available at
http://www.balch.com/files/Publication/47f3de25-b575-4124-b083-
3686fbf9c303/Presentation/PublicationAttachment/8fa07cff-b2ed-4873-842d-
392d269eee05/Gidiere,%20The%20Facts%20and%20Fictions%20of%20Amicus%20Curiae%20Practice%20in%20
the%20Eleventh%20Circ.pdf.
44
United States v. State of Louisiana, 751 F. Supp. 608, 620 (E.D. La. 1990), available at
http://www.leagle.com/xmlResult.aspx?page=5&xmldoc=19901359751FSupp608_11249.xml&docbase=CSLWAR
2-1986-2006&SizeDisp=7.
7

unique contribution to the proceedings rather than merely recycle the arguments of
the parties.
45
However, a leading practice guide concludes that [t]here is little
evidence that such views are widely shared.
46

District courts have identified similar relevant factors. In Fluor
Corporation,
47
the court asked, among other things, whether the parties opposed
the amicus motion, whether the proposed amicus had an interest in the case,
whether the proposed amicus was partisan, and whether the parties were
adequately represented.
48
Similarly, in Sciotto v. Marple Newtown School
District,
49
a district court applied the following four criteria: (i) whether the
proposed amicus had a special interest in the case; (ii) whether the proposed
amicuss interest was being represented competently, or at all; (iii) whether the
proffered information was timely and useful; and (iv) whether the proposed
amicus was partisan.
50

The first specific rules permitting amicus participation in US Supreme Court
proceedings were introduced in 1937.
51
Rule 37 of the US Supreme Court Rules
sets out the guidelines for such participation.
52
Private third parties must first seek
permission from both parties to the proceedings to participate, which is normally
granted.
53
If one or both of the parties refuses permission, the third party may
apply to the court for leave to file.
54
It is rare for the Court to decline permission.
55

Unlike private amici, representatives of federal and state governments are not

45
Voices for Choices v. Illinois Bell Telephone Company, 339 F.3d 542, 545 (7th Cir. 2003), available at
http://law.justia.com/cases/federal/appellate-courts/F3/339/542/603399/.
46
16AA Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE sec. 3975 (4th ed.).
47
Fluor Corporation v. United States, 35 Fed. Cl. 284, 285 (1996)
48
Fluor Corporation v. United States, 35 Fed. Cl. 284, 285-86 (1996).
49
Sciotto v. Marple Newtown School District, 70 F. Supp. 2d 553, 555 (E.D. Pa. 1999), available at
http://www.leagle.com/xmlResult.aspx?xmldoc=199962370FSupp2d553_1572.xml&docbase=CSLWAR2-1986-
2006.
50
Sciotto v. Marple Newton School District, 70 F. Supp. 2d 553, 555 (E.D. Pa. 1999), available at
http://www.leagle.com/xmlResult.aspx?xmldoc=199962370FSupp2d553_1572.xml&docbase=CSLWAR2-1986-
2006.
51
Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 FLORIDA STATE UNIVERSITY LAW REView 315,
321 (2008), available at .http://law.fsu.edu/journals/lawreview/downloads/352/garcia.pdf.
52
Rules of the Supreme Court of the United States, 48 (January 2010) available at
http://www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf.
53
54
55
8

required to obtain permission from the parties to file amicus briefs.
56
Amicus briefs
are now filed in the significant majority of cases heard by the US Supreme Court
each year.
57
Studies have shown that in some years amicus curiae participated in
over 90 percent of the cases before the US Supreme Court.
58

The Government of Kosovo has itself sought to participate in proceedings in
the United States. In 2003, the Government of Kosovo submitted an amicus brief
in Wood Industries LLC v. The United Nations Mission in Kosovo and Kosovo
Trust Agency.
59
The brief argued that the District Court for the Southern District
of New York should dismiss the claim on the basis of either the doctrine of state
immunity or the doctrine of forum non conveniens.
60

Canada
The federal and provincial rules of civil procedure specifically provide for
the appointment of amicus curiae in Canada.
61
The case law also provides
guidance on the jurisdiction of the court to appoint amicus curiae in criminal
proceedings.
62
In R. v. Imona-Russel,
63
the Ontario Court of Appeal discussed
Section 24(1) of the Canadian Charter of Rights and Freedoms (the Charter) as
giving courts jurisdiction to appoint amicus curiae where an accused is
underrepresented or representing him/herself.
64
Section 24(1) of the Charter
provides that: Anyone whose rights or freedoms, as guaranteed by this Charter,
have been infringed or denied may apply to a court of competent jurisdiction to
obtain such remedy as the court considers appropriate and just in the
circumstances.
65
The remedy referred to in Section 24(1) would allow a court to

56
57
Stephen M. Shapiro, Amicus Briefs in the Supreme Court, APPELLATE.NET, available at
http://www.appellate.net/articles/amicusbriefs.asp.
58
Paul Collins, FRIENDS OF THE SUPREME COURT: INTEREST GROUPS AND JUDICIAL DECISION MAKING 46 (2008).
59
Wood Industries, LLC v. The U.N. Mission in Kosovo and Kosovo Trust Agency, Case No:03-CV-7935
(S.D.N.Y. 2003), available at http://pbosnia.kentlaw.edu/amicus/Amicus%20Brief-posted-web.htm.
60
Brief of Amicus Curiae Government of Kosovo in Support of Defendant KTAs Motion to Dismiss, Kentlaw.edu,
available at http://pbosnia.kentlaw.edu/amicus/Amicus%20Brief-posted-web.htm.
61
Manitoba Court of Queens Bench Rules, Man. Reg. 553/88, R. 13.02 (2012), available at
http://www.canlii.org/en/mb/laws/regu/man-reg-553-88/latest/part-1/man-reg-553-88-part-1.html; Saskatchewan
Queens Bench Rules, R. 75 [am. Sask. Gaz., Pt. 1, November 13, 1987]; Rules of Civil Procedure, R.R.O. 1990,
Reg. 194, r. 13.02; O. Reg. 186/10, s. 1 (2008), available at
http://www.qp.gov.sk.ca/documents/English/Rules/qbrules.pdf.
62
R. v. Imona-Russel (2008) 104 O.R. (3d) 721, available at http://www.criminallawyers.ca/pdf/R_v_Imona-
Russel.pdf.
63
R. v. Imona-Russel (2008) 104 O.R. (3d) 721, available at http://www.criminallawyers.ca/pdf/R_v_Imona-
Russel.pdf.
64
R. v. Lariviere (2001) 3 S.C.R. 1013, available at http://scc.lexum.org/en/2001/2001scc93/2001scc93.pdf.
65
Canadian Charter on Rights and Freedom, Sect. 24(1) (1982), available at http://laws-
lois.justice.gc.ca/eng/charter/.
9

appoint an amicus curiae for the purposes of granting an accused a fair trial under
Section 7 of the Charter.
66

The court has sole discretion whether to grant the application for amicus
participation and does not require the consent of any of the parties.
67
Case law in
Canada provides guidance as to the circumstances in which leave will be granted.
In Incredible Electronics Inc. v. Canada (Attorney General), the Ontario Supreme
Court ruled that at least one of the following criteria must be met: (i) the third party
has a real, substantial, and identifiable interest in the subject matter of the
proceeding, (ii) the third party has an important perspective distinct from the
immediate parties; or (iii) the third party is a well-recognized group with special
expertise and a broad identifiable membership base.
68
In Childs v. Desormeaux,
the Ontario Court of Appeal suggested that the burden to participate as amicus is
much higher as one moves from the constitutional end of the spectrum towards the
private end.
69
In Faro (Town) v. Carpenter, a case involving a human rights
intervener that brought an application to appoint amicus curiae to assist the
complainant, the Yukon Territory Supreme Court provided that three issues must
be considered in determining whether an amicus should be appointed: (a) the
seriousness of the interests at stake; (b) the complexity of the proceedings; and (c)
the capacities of the person (including the ability of the judge to assist the person
within the limits of the judicial role).
70

Traditionally, an amicus was only permitted in cases that involve a matter of
importance and a matter that could affect many other individuals.
71
The amicus
may assist the court to prevent injustice and may remind the court of matters which
may be overlooked, represent the underrepresented, or call the courts attention to
a potential error in the proceedings.
72
Amici may also be persons who appear in an
action to protect their own interests.
73
While traditionally, the amicus took the role
of a neutral, the role of amicus has evolved from that of a neutral objective person
making submissions to the court, to that of an advocate on behalf of a particular
person or point of view in many cases.
74

66
Canadian Charter on Rights and Freedom, Sect. 7 (1982), available at http://laws-lois.justice.gc.ca/eng/charter/.
67
David Scriven & Paul Muldoon, Intervention as Friend of the Court: Rule 13 of the Ontario Rules of Civil
Procedure, 6 ADVOCATES QUARTERLY 448 (1986).
68
Incredible Electronics Inc. v. Canada (2006) 80 O.R.(3d) 723, 147 C.R.R. (2d) 79.
69
Childs v. Desormeaux (2003) 67 O.R. (3d) 385.
70
Town of Faro v. Carpenter and Yukon Human Rights Commission (2007) YKSC 33, 8.
71
Canadian Encyclopedic Digest, V.2.(e), 582.
72
Canadian Encyclopedic Digest, V.2.(e), 582; V.4.(b) 163; R. v. Grice (1957) 11 DLR (2d) 699, 702.
73
Canadian Encyclopedic Digest, V.2.(e), 582.
74
Bhajan v. Bhajan (2010) ONCA 560, 322 D.L.R. (4th) 332, available at
http://www.canlii.org/en/on/onca/doc/2010/2010onca560/2010onca560.html.
10

Civil law jurisdictions

There remains a misconception that amicus participation is limited to the
courts of common law jurisdictions and although it is correct to observe that
amicus participation is more embedded in common law practice, there are a
number of examples of amicus participation in civil law jurisdictions.

Germany
The German Constitutional Court permits knowledgeable third persons to
submit written briefs in proceedings before it.
75
Legal commentators in Germany
have suggested that the knowledgeable third person is analogous to the amicus
curiae under US constitutional law.
76
Although there are no statistics publicly
available, this mechanism appears to have been used frequently in constitutional
procedure. Further, third persons commonly send opinions to the Constitutional
Court without being asked to do so, hoping to be heard.
77

In common law jurisdictions without an amicus curiae, the knowledgeable
third person does not have a right to be heard. There is also no formal application
procedure for participation. This has been subject to criticism on the basis that it
does not ensure equal treatment of individuals or groups interested in expressing
their views.
78
In German constitutional procedure, knowledgeable third persons
are generally used to ascertain facts rather than to provide legal opinion. The
knowledgeable third person is under no obligation to render an opinion, even if
asked to do so. Technically, an opinion submitted by a knowledgeable third person
does not even have to be accurate or true.
79
Knowledgeable third persons are not
considered to be experts and do not have to be objective.
80
Examples of the types
of organizations that may participate as knowledgeable third persons include
unions, churches or other religious institutions, refugee organizations,
representatives of the government or administration, and university professors.
81

75
Bundesverfassungsgerichtsgesetz (Procedural Code for the German Constitutional Court, BVerfGG), Section 27a.
76
Dollinger, in: Umbach/Clemens/Dollinger (ed.), BUNDESVERFASSUNGSGERICHTSGESETZ
MITARBEITERKOMMENTAR 27a ann. 5, 2nd ed. (2005).
77
78
79
80
MITARBEITERKOMMENTAR 27a ann. 8, 25, 2nd ed. (2005).
81
MITARBEITERKOMMENTAR 27a ann. 16, 20, 2nd ed. (2005).
11

The German Constitutional Court has always considered it necessary to
assess the impact of its judgments on the public as a whole and has not restricted
its reasoning to the position of the parties to the proceedings only. Accordingly, it
permitted briefs before there was a specific statutory basis to do so. The statutory
basis was not introduced until 1998. The legislative materials, unfortunately,
record little reasoning for formal adoption of this mechanism of amicus
participation which was already an established practice within the judiciary.
82

France
Amicus participation is relatively new in France and remains uncommon.
83

The practice of amicus curiae was introduced for the first time by a court decision
in 1988.
84
Although, it remains broadly uncodified in the French Civil Courts, a
recent provision formally introduced the practice into Administrative Court
proceedings.
85

The term amicus curiae was used for the first time in a decision of the Paris
Court of Appeal on 21 June 1988.
86
In order to assist in the settlement of a dispute
relating to the activities of French avocats, the court decided to invite the President
of the Paris Bar Order (Btonnier de lOrdre) as amicus curiae to submit, in the

82
Bundestagsdrucksache (BT-Drucks), 13/7673, 10 (2009), available at
http://dipbt.bundestag.de/doc/btd/13/076/1307673.pdf.
83
Gaetan Klein, Instead of the Amicus Curiae in French and German Civil Procedure (translated), Universite Paris
Ouest, available at http://translate.google.com/translate?hl=en&sl=fr&u=http://m2bde.u-paris10.fr/content/la-place-
de-l%25E2%2580%2599amicus-curiae-en-proc%25C3%25A9dure-civile-fran%25C3%25A7aise-et-allemande-par-
ga%25C3%25ABtan-
klein&ei=JG5fT_TxHMGWgwfDvoCPCA&sa=X&oi=translate&ct=result&resnum=1&ved=0CCQQ7gEwAA&pre
v=/search%3Fq%3Damicus%2Bcuriae%2Bin%2Bfrance%2B1988%26hl%3Den%26biw%3D1061%26bih%3D543
%26prmd%3Dimvns.
84
ga%25C3%25ABtan-
%26prmd%3Dimvns.
85
Dcret n2010-164 du 22 fvrier 2010 relatif aux comptences et au fonctionnement des juridictions
administratives, available at
http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000021862544&categorieLien=id.
86
ga%25C3%25ABtan-
%26prmd%3Dimvns.
12

presence of all the interested parties, every observation likely to enlighten the
Court as to the search for a solution to the dispute.
87
This participation was
subject to challenge, but the Paris Court of Appeal issued a second decision on July
6, 1988 upholding its decision and inviting further third party specialists to
intervene as amici curiae.
88
This was the first instance of amicus participation in
the French Civil Courts.

This practice of amicus participation was subsequently adopted by the
French Cour de Cassation in 1991 when it invited the President of the National
Committee of Ethics to provide an opinion in a case relating to surrogate
mothers.
89
Subsequent cases that have benefited from amicus participation include
one relating to abortion
90
and, more recently, insurance contracts.
91
There is no
prescribed procedure for amicus participation in the French Civil Courts.
Accordingly, one has to look at the cases in which French courts have permitted
such participation upon the invitation of the Court. In the absence of clear
provisions regarding the admission of amicus curiae participation in civil
procedure, the position remains flexible. The only firm requirements appear to be
that the amicus must: (i) have the agreement of all parties to the dispute; and (ii)
respect the adversarial principle, the right of the parties to fashion their claims in
the way they choose.
92

The Paris Court of Appeal has stated that the amicus curiae is not a witness,
nor an expert, and does not fall under the scope of the Code of Civil Procedure
provisions regarding the challenge of experts.
93
However, the knowledge of the
amicus curiae must be consistent with the objective given to it by the Court.
94

Accordingly, not only does the amicus need to be qualified in the field relevant to
the case, it must also be in a position to answer the Courts questions.
95

87
ga%25C3%25ABtan-
%26prmd%3Dimvns.
88
Cour dappel de Paris, (July 1988).
89
Cass. Ass. Pln., (May 1991).
90
Cass. Ass. Pln., (June 2001).
91
Cass. mixte, (November 24, 2004).
92
Leila Arkhoshashvili, Some Pecularities of the Adversarial Principle in the Civil Procedure Relations, 28
(February 2012) available at http://www.eujournal.org/esj_feb_spec_2012/4.pdf.
93
Cour dappel de Paris, (July, 6 1988).
94
Denis Mazeaud, Lexpertise de droit travers lamicus curiae, 109 (1995).
95
Denis Mazeaud, Lexpertise de droit travers lamicus curiae, 109 (1995).
13

The possibility of amicus participation in administrative court proceedings
was introduced in Article R625-3 of the Code of Administrative Justice by a decree
dated 22 February 2010.
96
Article R625-3 provides: The trial panel may invite
any person, whose competence or knowledge would be useful to resolve the
litigation, to produce general knowledge on the points she determines. The
opinion is to be given in writing. It is to be communicated to the parties. Under
the same conditions, any person may be invited to present oral submissions in front
of the trial panel or the trial bench with the parties duly convened.
97

Article R625-3 is therefore silent as to the possibility of a third party seeking
to participate as amicus curiae on its own initiative. It should be noted that the
first instance of amicus participation in front of administrative courts was in March
2010 when a research organization submitted an amicus brief without any
invitation from the Conseil dEtat, who advises the Government on the preparation
of bills, ordinances, and certain decrees.
98
However, the admissibility of such a
submission and the practice of amicus curiae in administrative court proceedings
more generally remains an unresolved issue.
99

Argentina
Argentina represents a civil law jurisdiction whose courts have adopted
amicus participation. Notwithstanding that there were no express rules or
regulations with regard to amicus curiae, the Argentine Courts historically
accepted amicus briefs in numerous proceedings.
100
The Supreme Court of Justice
of the Nation formally recognized the procedure in 2004 with the passing of the
Acordada 28/04 of 14 July 2004.
101
The regulation set out the basis for the
recognition, describing amicus curiae as an important instrument of democratic
participation in the exercise of power that allow[s] citizens to participate in the

96
http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000021862544&categorieLien=id (administrative
regulation issued by the French presidency).
97
http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000021862544&categorieLien=id (administrative
regulation issued by the French presidency).
98
The Council of State, available at http://www.conseil-etat.fr/en/.
99
Conseil dEtat, submission by Centre de Recherches et Dtudes sur les Droits Fondamentaux de luniversit de
Paris-Ouest-Nanterre-La Dfense (CREDOF) (18 March 2010).
100
Ibanez Manuel Leandro and Others v. Undetermined Financial Institutions Federal n 7 Sec 14 (1983), available
at http://www.essex.ac.uk/tjn/documents/Amicus%20Banks%20(final-English%20version)March24.pdf.
101
14

administration of justice.
102
In addition, the amicus curiae has been integrated
into Argentinas civil law system.
103

Romania
Although the Romanian Courts do not appear to permit amicus participation
generally in proceedings, a specific exception is made in respect of cases relating
to discrimination.
104
NGOs that have a legitimate interest in the field of
antidiscrimination may engage either on behalf, or in support of, the complainant,
in any judicial and/or administrative discrimination procedure.
105
The NGOs
engagement is regulated by Article 28 of the Antidiscrimination Law.
106
It
constitutes one of only a limited number of exceptions under Romanian civil
procedure whereby a third party may intervene in proceedings.
107

NGOs involvement may take the form of representation, intervention, or
amicus curiae.
108
Although no provisions are made for amicus participation, the
Courts have accepted amicus briefs and adopted the arguments set out in such
briefs.
109
The role of NGOs in the antidiscrimination process in Romania has been
described as very important for the overall effectiveness of the legislation
addressing racial or ethnic discrimination.
110
NGOs can use their procedural role
to raise awareness or to advocate law and policy changes. It may be easier for
NGOs to take on discrimination procedures rather than individuals, groups, or
communities affected by discrimination. Such a strategy appears to be effective as
the rate of success is higher in cases where the NGOs are involved on behalf of or
in support of the alleged victims.
111

102
103
Amicus Curiae, ARTICLESBASE (2009) availale at http://www.articlesbase.com/law-articles/amicus-curiae-
1458934.html.
104
Romania, FRA, 10 (2011), available at http://fra.europa.eu/fraWebsite/attachments/access-to-justice-2011-
country-RO.pdf.
105
Romania, FRA, 10 (2011), available at http://fra.europa.eu/fraWebsite/attachments/access-to-justice-2011-
country-RO.pdf.
106
Romania/ Ordonan!a Guvernului Nr. 137/2000, Art. 28 (February 2007).
107
Romania, FRA, 10 (2011) available at http://fra.europa.eu/fraWebsite/attachments/access-to-justice-2011-
country-RO.pdf.
108
country-RO.pdf.
109
country-RO.pdf.
110
European Union Agency for Fundamental Rights, Access to Justice in Europe: An Overview of Challenges and
Opportunities, Romania, 12 (2011), available at http://fra.europa.eu/fraWebsite/attachments/access-to-justice-2011-
country-RO.pdf.
111
European Union Agency for Fundamental Rights, Access to Justice in Europe: An Overview of Challenges and
Opportunities, Romania, 12 (2011), available at http://fra.europa.eu/fraWebsite/attachments/access-to-justice-2011-
country-RO.pdf.
15

Other Eastern European and Balkan jurisdictions
There is very little publicly available information as to which Eastern
European and Balkan jurisdictions permit amicus participation or, where they do,
the reasons for them doing so. However, some materials indicate that amicus
participation is allowed in some form in the constitutional courts of the Czech
Republic,
112
Slovakia,
113
and Latvia.
114
The procedural rules for the constitutional
courts of these jurisdictions do not include any specific provisions with regard to
amicus participation. In some cases, parties point to the right to intervene at the
European Court of Human Rights as support for their right to intervene as well.
115

In addition, some constitutional courts have even requested the use of amici.
116

International Courts

A significant number of international courts have established and well-used
practices and procedures to permit amicus participation.

European Court of Human Rights
The European Court of Human Rights (ECtHR) has a well-established
tradition of allowing amicus participation. In the early 1980s, it began to permit
intervention by a variety of groups on a wide range of issues in order to promote
the proper administration of justice.
117
By the mid-1990s, amicus participation by
NGOs had become a common feature as evidenced by the 1996 case of Cahill v.
United Kingdom, where five NGOs, including Amnesty International and Liberty,
intervened.
118

112
Coalition Urges Czech Court to Strike Down Discriminatory Voting Laws, MDAC, (February 2010) available at
http://mdac.info/news/coalition-urges-czech-court-strike-down-discriminatory-voting-laws.
113
Interest of Amici Curiae, Case: PL. US 12/01 available at
http://www.eclj.org/PDF/071202_ECLJ_ACLJ_Slovakian_Amicus_10_25_07.pdf.
114
SORAINEN, Latvia Prepares Overview of Constitutional Court Judgment on the Treaty of Lisbon, (April 2009)
available at http://www.sorainen.com/en/News/139/sorainen-latvia-prepares-overview-of-constitutional-court-
judgment-on-the-treaty-of-lisbon.
115
In the Constitutional Court of the Slovak Republic, Center for Reproductive Rights (April 2007), available at
http://reproductiverights.org/sites/crr.civicactions.net/files/documents/Slovakia_CC_Brief_ENG.pdf.
116
Amicus Curiae Brief for the Constitutional Court of The Former Yugoslav Republic of Macedonia on
Amendments to Several Laws Relating to the System of Salaries and Remunerations of Elected and Appointed
Officials, Venice Commission (December 2010), avaialble at http://www.venice.coe.int/docs/2010/CDL-
AD(2010)038-e.pdf.
117
ECHR: Amicus Curiae, PICT RESEARCH MATRIX, available at http://www.pict-
pcti.org/matrix/discussion/echr/echr_amicus.htm.
118
Cahill v. United Kingdom (1996) 23 EHRR 413.
16

Specific provisions to permit amicus participation were introduced in 1994
following the adoption of Protocol 11.
119
Prior to the Protocol, there had been no
explicit reference to amicus participation in the European Convention on Human
Rights. Following the adoption of Protocol 11, article 36(2) of the Convention
states that: The President to the Court may, in the interest of the proper
administration of justice, invite . . . any person concerned who is not the applicant
to submit written comments or take part in proceedings.
120

The ECtHRs Rules of Court include further provisions for amicus
participation.
121
The President may in the interests of the proper administration of
justice permit amicus participation either by way of a written brief or in
exceptional cases by contributing to hearing itself.
122
Generally, in
circumstances where a reasoned application is made within the time limit, leave to
participate as amicus curiae is granted.

Inter-American Court of Human Rights
The Inter-American Court of Human Rights (IAC) has perhaps the most
extensive amicus practice of any international court. Article 44 of the Rules of
Procedure of the Inter-American Court on Human Rights explicitly allows the
submission of amicus briefs.
123
The IAC has accepted amicus briefs in all
proceedings since the very first case was brought following its foundation in
1979.
124

United Nations Criminal Tribunals
Rule 74 of the Internal Criminal Tribunal for Rwanda Rules of Procedure
and Evidence and the Rules of Procedure and Evidence of the International
Criminal Court for the former Yugoslavia provide that: A Chamber may, if it
considers it desirable for the proper determination of the case, invite or grant leave

119
Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms,
Restructuring the Control Machinery Established Thereby, Art. 36 available at
http://conventions.coe.int/Treaty/en/Treaties/html/155.htm.
120
121
Rules of Court of the ECtHR, Rule 44 (July 2009), available at
http://www.echr.coe.int/NR/rdonlyres/D1EB31A8-4194-436E-987E-65AC8864BE4F/0/RulesOfCourt.pdf.
122
123
Rules of Procedure of the Inter-American Court on Human Rights, Art. 44, available at
http://www.corteidh.or.cr/reglamento.cfm.
124
Dinah Shelton, The Participation of Nongovernmental Organizations in International Judicial Proceedings, 88
AMERICAN JOURNAL OF INTERNATIONAL LAW 611, 638 (1994).
17

to any State, organization or person to appear before it and make submissions on
any issue specified by the Chamber.
125

The World Trade Organization
The participation of amicus curiae in World Trade Organization (WTO)
disputes has been a matter of considerable debate amongst participants and
practitioners.
126
There is, however, now a considerable body of case law that has
established the permissibility of amicus briefs in hearings before the WTO Panel
and Appellate Body.
127
In permitting amicus participation, the Appellate Body of
the WTO has decided that its authority to do so is granted by Article 13 of the
WTO Dispute Settlement Understanding which provides that: [e]ach panel shall
have the right to seek information and technical advice from any individual or
body which it deems appropriate. Panels may seek information from any relevant
source and may consult experts to obtain their opinion in certain aspects of the
matter.
128
This provision has permitted NGOs to successfully participate as amici
in WTO disputes between States, as was seen in the Appellate Body Shrimp-Turtle
case.
129

The International Centre for the Settlement of Investment Disputes
The International Centre for the Settlement of Investment Disputes (ICSID)
is an autonomous international institution established under the Convention on the
Settlement of Investment Disputes between States and Nationals of Other States
with over one hundred and forty member States.
130
BiH joined as a member in
1997.
131

The ICSID arbitration rules were revised in 2006 to include an express
power to allow amicus briefs.
132
Prior to this, ICSID tribunals exercised their

125
Procedures Before Trial Chambers, Rule 74 available at http://ictr-
archive09.library.cornell.edu/ENGLISH/rules/210200/part6.html; Rules of Procedure and Evidence, Rule 74, ICTY
(2011), available at http://www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/it032rev46e.pdf.
126
Participation in Dispute Settlement Proceedings, WORLD TRADE ORGANIZATION, available at
http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c9s3p1_e.htm.
127
Participation in Dispute Settlement Proceedings, WORLD TRADE ORGANIZATION, available at
http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c9s3p1_e.htm.
128
WTO Dispute Settlement Understanding, Art. 13 available at
http://www.wto.org/english/res_e/booksp_e/analytic_index_e/dsu_06_e.htm.
129
The WTO and Civil Society, WORLD TRADE ORGANIZATION, available at
http://www.wto.org/english/forums_e/ngo_e/ngospe_e.htm.
130
International Centre for the Settlement of Investment Disputes available at
http://icsid.worldbank.org/ICSID/Index.jsp.
131
Member States, ICSID, available at http://icsid.worldbank.org/ICSID/FrontServlet.
132
ICSID Arbitration Rules, Article 37(2) (April, 10 2006), available at
http://icsid.worldbank.org/ICSID/StaticFiles/basicdoc/CRR_English-final.pdf.
18

discretion in proceedings before them to permit amicus participation.
133
That
discretion was exercised pursuant to a power the tribunals held under the ICSID
Convention to decide procedural questions not covered by the ICSID Convention
of ICSID arbitration rules.
134
The tribunals considered that given the importance of
the issues in dispute, the final award may have some influence on how
governments and foreign investors may interact.
135
The tribunal in Biwater Gauff
Ltd. v. United Republic of Tanzania, therefore deemed that matter to present
sufficient aspects of public interest to justify amicus participation.
136
Following
the revision to its rules, the ICSID tribunal permitted the amicus participation of
five NGOs in 2007.
137

Institutions of the European Union
The Commission, the Council, and EU member states regularly participate
in proceedings before the European Court of Justice (ECJ).
138
Further, pursuant to
Article 40 of the Statute of the European Court of Justice, natural or legal persons
establishing an interest in the result of any case submitted to the Court may also
participate as amicus curiae.
139
Although Article 40 refers to parties who
intervene, those intervening are listed as amicus curiae in the Courts published
decisions.
140

A third party is permitted to participate as amicus curiae if it can establish
an interest in the result of a case submitted to the Court, but that interest must be

133
Suez and Others v the Argentine Republic, ARB/03/19 (2006), available at
http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC516_En&c
aseId=C19.
134
ICSID Convention, Art. 44 (2006), available at
http://icsid.worldbank.org/ICSID/StaticFiles/basicdoc/CRR_English-final.pdf.
135
Suez and Others v the Argentine Republic, ARB/03/19 (2006), available at
http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC516_En&c
aseId=C19.
136
Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania, ARB/05/22 (2006), available at
http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC1584_En&
caseId=C67.
137
Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania, ARB/05/22 (2006), available at
http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC1584_En&
caseId=C67.
138
The Court of Justice of the European Union, EUROPEAN UNION, available at http://europa.eu/about-
eu/institutions-bodies/court-justice/index_en.htm.
139
Statute of the Court of Justice of the European Union, Art. 40, 30.3.2010 C 83/210, available at
http://curia.europa.eu/jcms/upload/docs/application/pdf/2008-09/statut_2008-09-25_17-29-58_783.pdf.
140
The Opinion of Advocate General Jacobs, EUROPEAN UNION, para. 9 (September 24, 1998) available at
http://curia.europa.eu/juris/showPdf.jsf?text=amicus&docid=44120&pageIndex=0&doclang=EN&mode=req&dir=
&occ=first&part=1&cid=193024.
19

direct and present.
141
An application to intervene is limited to supporting the
form of order sought by one of the parties and does not extend to actions between
member states, institutions of the Union, or between Member States and
institutions of the Union.
142
Interventions by NGOs are not common but are not
unknown, which can be seen when the NGO JUSTICE participated as amicus in
proceedings concerning the rights of British Overseas Nationals under EU law.
143

Article 15 of Regulation 1/2003 provides for the possibility that the
European Commission may assist domestic courts as amicus curiae in the
application of EC competition rules.
144
Specifically, Article 15(3) of Regulation
1/2003 states that where the coherent application of Article 81 or Article 82 so
requires, the Commission, acting on its own initiative, may submit written
observations to national courts.
145
With the permission of the domestic court in
question, it may also make oral observations.
146

Members of the European Union have therefore had to ensure that their
domestic law and procedure permits such amicus participation by the European
Commission. For example, in 2004, the Dutch Code of Civil Procedure and the
Competition Act were specifically modified to allow for the application of Article
15(3) of Regulation 1/2003.
147

Domestic Courts Seeking Amicus Participation

The potentially valuable assistance provided by amicus curiae is illustrated
by the fact that a number of domestic courts and legislative bodies, in particular
constitutional courts, have actively sought amicus participation from the European
Commission for Democracy through Law, better known as the Venice

141
GR Amylum NV and Tunnel Refineries Ltd. v. Council & Commission (1978) ECR 893, available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61977O0116:EN:HTML.
142
Statute of the Court of Justice of the European Union, Art. 40, 30.3.2010 C 83/210, available at
http://curia.europa.eu/jcms/upload/docs/application/pdf/2008-09/statut_2008-09-25_17-29-58_783.pdf.
143
R v Secretary of State for the Home Department ex parte Manjit Kaur (2001) C-192/99, available at
http://www.biicl.org/files/1821_c-192-99.pdf.
144
Regulation 1/2003, Art. 15, available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:l:2003:001:0001:0025:en:PDF.
145
146
147
NMa Publishes Amicus Curiae Guidelines, CROSSBORDER (2004), available at
http://crossborder.practicallaw.com/5-102-9948.
20

Commission.
148
The Venice Commission is the Council of Europes advisory
body on constitutional matters.
149
Since 1990, the Commission has played a
leading role in the adoption of constitutions that conform to the standards of
Europes constitutional heritage.
150

The Benefits of Amicus Participation

As may be seen from the outline above, the reasons for, and perceived
benefits of, amicus participation, vary among different jurisdictions and fora.
However, broad categories of benefits of amicus participation may be summarised
as follows:

i) it may provide information not otherwise available to the court;
ii) it may provide relevant legal arguments not otherwise submitted by the
parties;
iii) it may provide insight into the broader implications of a decision that are
not relevant to the parties;
iv) it may display openness by the court and promote access to justice; and
v) it may be of particular relevance in proceedings before constitutional and
supreme courts.

Each of these benefits is discussed in further detail below.

The Provision of Information

The duty of all courts and tribunals is to act as a neutral fact finder of the
matter under dispute with full regard to all relevant facts and arguments. An
adversarial system means that the courts rely on the parties to bring to light not
only all essential issues in a case but also all the relevant evidence and legal
arguments as well.
151
The limited nature of the parties interests on either side
may mean that key issues go unaddressed, or that their coverage is distorted.
152

148
Amicus Curiae Brief for the Constitutional Court of Bosnia and Herzegovina on the Law of the Republika Srpska
on the Status of State Property Located on the Territory of the Republika Srpska and Under the Disposal Ban,
VENICE COMMISSION (2011), available at http://www.venice.coe.int/docs/2011/CDL-AD(2011)030-e.pdf; Amicus
Curiae Brief for the Constitutional Court of Moldova on the Interpretation of Articles 78.5 and 85.3 of the
Constitution of Moldova, VENICE COMMISSION (2009), available at http://www.venice.coe.int/docs/2010/CDL-
AD(2010)002-e.pdf.
149
Venice Commission, COUNCIL OF EUROPE, available at http://www.venice.coe.int/site/main/Presentation_E.asp.
150
Venice Commission, COUNCIL OF EUROPE, available at http://www.venice.coe.int/site/main/Presentation_E.asp.
151
Jeffrey Jenkins, THE AMERICAN COURTS: A PROCEDURAL APPROACH 56 (2011).
152
21

Alternatively, it may just be that the issues in a case are so broad and so complex
that, even with the best of intentions, the parties themselves lack the necessary
time and resources to address all the relevant points with the attention they
deserve.
153

Amici therefore play an important role in helping to ensure that all material
information is placed before the court.
154
On this basis, the question of
intervention by amici may be viewed not so much as an issue of participation at all,
but rather as relating to the duties of all courts to assess the matters before them
objectively, taking into account all relevant material.

The Provision of Legal Opinion

In addition to the gathering of information, it may also be helpful for the
court to hear legal opinion and argument from those who are not parties to the
dispute but nonetheless could be affected by its outcome in some way. Parties to
proceedings are necessarily partisan and may not provide all relevant arguments
relating to a particular legal issue in dispute. It may therefore be helpful to receive
additional legal argument on specific legal issues from persons who are not parties
to the dispute, particularly in circumstances where there are novel issues or issues
of genuine public interest involved.

An amicus may amplify or supplement the main legal and factual arguments
presented by the parties. The amicus may perform a valuable role by introducing
subtle variations of these basic arguments. Alternatively, or in addition, the amicus
may focus on alternative legal arguments to those presented by the parties.

The International Institute for the Unification of Private Law (UNIDROIT) is
an independent intergovernmental organization whose aim is to study needs and
methods for modernizing, harmonizing, and coordinating private law.
155
Its
Principles of Transnational Procedure sets out standards for adjudicating
commercial disputes;
156
the Principles find that: The amicus curiae brief is a
useful means by which a nonparty may supply the court with information and legal

153
154
155
UNIDROIT: An Overview, UNIDROIT, available at http://www.unidroit.org/dynasite.cfm?dsmid=103284.
156
Principles of Transnational Procedure, INTERNATIONAL INSTITUTE FOR THE UNIFICATION OF PRIVATE LAW,
UNIFORM LAW REVIEW 2004-4 (2004).
22

analysis that may be helpful to achieve a just and informed disposition of the
case.
157

Informing Courts of the Interests of Those Other than the Parties

Amicus participation helps address another shortcoming in any adversarial
system, which is its inability to effectively protect the interests of third parties.
Amici discuss the broader implications of decisions that are either not relevant to
the parties or that the parties have failed to address.

Certain commentators have suggested that judges that have a proper
understanding of third party interests may make more precise decisions.
158

Legislators take into account the preferences of their constituents when deciding,
for example, to vote for a piece of legislation. They receive this information from
lobbyists and interest groups. With such information in hand, legislators may
make more rational choices that best serve the interests of their constituents. It is
argued that, in the same way, amicus participation provides to judges information
regarding the interests and preferences of third parties.
159
This assists judges in
reaching decisions that are correct and will be followed.

As amicus briefs generally take a position on a case; they not only inform
the justices that a particular organization is concerned with the decision, but of the
preferences of that organization as well.
160
In some instances, the amicus may be
adding support to the arguments of one of the parties. These types of argument
appear to have some support in the US Supreme Court: [T]he willingness of
courts to listen to interveners is a reflection of the value that judges attach to
people. Our commitment to a right to a hearing and public participation in
government-decision making is derived not only from the belief that we improve
the accuracy of decisions when we allow people to present their side of the story,
but also from our sense that participation is necessary to preserve human dignity
and self-respect.
161

157
Principles of Transnational Procedure, INTERNATIONAL INSTITUTE FOR THE UNIFICATION OF PRIVATE LAW,
Principle 13-A, UNIF. L. REV. 2004-4 (2004).
158
Lee Epstein and Jack Knight, Mapping Out the Strategic Terrain: The Informational Role of Amici Curiae, 216ff,
SUPREME COURT DECISION-MAKING NEW INSTITUTIONAL APPROACHES, (The University of Chicago Press, 1998).
159
Amicus Curiae Explained (A.K.A. BFF of the Court), THE LAW INSIDER (2010), available at
http://www.thelawinsider.com/insider-tips/amicus-curiae-explained-a-k-a-bff-of-the-court/.
160
331-333 (2008), available at .http://law.fsu.edu/journals/lawreview/downloads/352/garcia.pdf.
161
Webster v Reproductive Health Services, 493 US 490, 522 (1989), available at http://www.oyez.org/cases/1980-
1989/1988/1988_88_605.
23

Openness and Access to Justice

Amicus curiae participation promotes a general interest in procedural
openness and ensures that the public does not perceive the judicial process as
secretive or one in which they cannot be involved. This is an important role as it
provides a voice to individuals, groups, or categories of persons who are not parties
but who may be affected by the courts decision. NGO amicus participants rarely
have direct legal interests in the outcomes of disputes. Rather, they represent
broad concerns of society with key thematic issues.
162

Constitutional and Supreme Courts

The limitations of adversarial proceedings can arise in a case of any size,
but they are especially problematic when the courts are called upon to decide
questions of law of major public importance, with implications going beyond the
facts of the case at hand.
163
This is especially true of those cases before
constitutional courts and supreme courts, which are qualitatively different from
other courts.

Constitutional courts deal principally with constitutional law and their role is
to rule on whether or not laws are in fact unconstitutional, i.e. whether or not they
conflict with constitutionally established rights and freedoms.
164
While
constitutional cases come before the court through the processes of adversarial
litigation, resolution of constitutional litigation has implications beyond the narrow
interests of the parties. In a constitutional case, the court is in substance
interpreting the law relating to how the state is to be governed, and the proceedings
have a dimension beyond the immediate private interests of the disputing parties.

When the OSCE Human Dimension Seminar on Constitutional Justice met
in 2008 to examine the role of constitutional justice, special emphasis was placed
on access to and accessibility of constitutional justice.
165
It was noted that the

162
Sarah F. Corbally and Donald C. Bross, A Practical Guide for Filing Amicus Curiae Briefs in State Appellate
Courts, NATIONAL ASSOCIATION OF COUNSEL FOR CHILDREN, 2 (2001), available at http://naccchildlaw.site-
ym.com/resource/resmgr/amicus_curiae/amicuspracticalguide.pdf.
163
164
Constitutional Court of South Africa, available at http://www.constitutionalcourt.org.za/site/home.htm; Algerian
Constitutional Council, available at http://www.conseil-constitutionnel.dz/indexAng.htm; Constitutional Council of
France, available at http://www.conseil-constitutionnel.fr/conseil-
constitutionnel/english/presentation/presentation.25739.html.
165
Consolidated Summary of 2008 Human Dimension Seminar on Constitutional Justice, OSCE ,available at
http://www.osce.org/odihr/33161.
24

existence of channels such as amicus curiae participation that allow for civil
society input into constitutional court reasoning are particularly beneficial for the
quality of constitutional justice.
166

Supreme courts are generally the highest court in a states judicial hierarchy
and function principally as appellate courts, hearing appeals from decisions of
lower courts.
167
In common law jurisdictions, the decisions of supreme courts are
generally binding on all lower courts.
168
In civil law jurisdictions, decisions of
supreme courts are not binding, but may provide guidance that lower courts may
choose to follow.
169
In either case, the decisions of supreme courts have a
significant impact on the exercise and interpretation of domestic laws.
170

In circumstances where cases of public importance are decided by
constitutional and supreme courts, there are strong and cogent arguments that the
courts should not be limited to hearing only from the parties to the case. The
procedure permitting amicus participation may therefore be seen not only as a
court procedure, but rather as part of the political process, thus gaining from public
participation. Issues of broad public interest can and do arise in both civil and
criminal matters. Even where narrow issues are presented, there may be broad
impact.

Objections to Amicus Participation

It would be incorrect to suggest that amicus participation is universally
lauded. Many domestic courts do not provide a mechanism for amicus
participation, nor is it always supported in those forums in which participation is
permitted. However, it is helpful to understand the objections to amicus
participation as such objections may be foreshadowed or anticipated when making
submissions that amicus briefs should be accepted. Two main criticisms are
typically levied against amicus participation: 1) increased costs and workload
imposed on the courts and 2) unclear motivation behind the participation of certain
amicus.

166
Consolidated Summary of 2008 Human Dimension Seminar on Constitutional Justice, 3 OSCE, available at
http://www.osce.org/odihr/33161.
167
Supreme Court, LEGAL DICTIONARY, available at http://legal-dictionary.thefreedictionary.com/Supreme+court.
168
169
James G. Apple and Robert P. Deyling, A Primer on the Civil-Law System, FEDERAL JUDICIAL CENTER, 24
available at http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf.
170
25

Costs and Workload

Critics of amicus participation suggest that there is a risk that it increases the
workload of the court and adds to the expense of proceedings.
171
Although it is
inevitable that amicus participation will increase the workload of the court and
potentially increase the costs of the parties, to some extent, that increase is likely to
be relatively modest. In any event, these increases are generally recognized as
being outweighed by the benefits amicus participation brings with it.
172

Importantly, courts and tribunals generally retain the discretion not to permit
amicus participation where it is not helpful to the court and therefore does not
outweigh factors such as time and expense.
173
The former English Master of the
Rolls, Lord Woolf noted: The intervention is always subject to the control of the
court and whether the third person is allowed by the court to intervene is usually
dependent upon the courts judgment as to whether the interests of justice will be
promoted by allowing the intervention. Frequently the answer will depend upon
whether the intervention will assist the court itself to perform the role upon which
it is engaged. The court has always to balance the benefits which are to be derived
from the intervention as against the inconvenience, delay and expense which an
intervention by a third person can cause to the existing parties.
174

It is also possible to implement procedural safeguards to limit the potential
negative impact of amicus briefs on logistics. The US Supreme Court, for
instance, limits the length of amicus briefs to 30 pages.
175
Care should therefore be
taken in the preparation of any amicus brief to ensure that it is well prepared and
does not simply duplicate the submissions presented by of one of the parties. Me-
too type briefs are unlikely to assist the court and leave may be refused to submit
them. As noted by a US judge:

After 16 years of reading amicus curiae briefs the vast majority of
which have not assisted judges, I have decided that it would be good
to scrutinize these motions in a more careful, fish-eyed, fashion. The
vast majority of amicus briefs are filed by allies of litigants and

171
Dinah Shelton, The Participation of Nongovernmental Organizations in International Judicial Proceedings, 88
AMERICAN JOURNAL OF INTERNATIONAL LAW 611, 618 (1994).
172
173
174
Re Northern Ireland Human Rights Commission (2002) UKHL 25, Para. 32, available at
http://www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd020620/ni-1.htm.
175
Sup. Cut. R 33.1(g) (2010), available at http://www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf.
26

duplicate the arguments made in the litigants briefs, in effect, merely
extending the length of the litigants brief. Such amicus briefs should
not be allowed. They are an abuse.
176

The perceived value of amicus participation is perhaps best demonstrated by
the fact that, when exercising their discretion, more often than not, courts and
tribunals will admit amici.
177
As one academic notes in the context of the US
Supreme Court:

[T]he Courts modern rules and norms clearly allow for essentially
unlimited amicus participation. For a Court facing an increasing
workload, as evident in the rise of certiorari petitions that the justices
must mull over each year, this suggests that the justices genuinely
believe amicus briefs can aid their decision-making process. If they
did not view amicus briefs as useful tools whether to assist them in
making the correct legal decision or as a means to maximise their
policy preferences they likely would continue to use formal or
informal policies that limit the participation of organised interests.
Simply put, the Court would likely deny permission to file amicus
briefs as a means to avoid, for example, the heavy amount of paper
that accompanies such filings. That the justices do not opt for such
policies implies that they may legitimately benefit from the assistance
of such friends of the Court.
178

Character of the Amicus

Another objection to amicus participation relates to the character of the
potential amicus participant, i.e. what is their true motive. Most courts however,
require potential amici to explain their status and their reasons for seeking to
intervene.
179
Relevant factors for determining the character of the amicus include
its mandate or terms of reference, the interests it represents or is accountable to,
and its areas of expertise.
180
In order to address any concerns, courts should ensure
that amici have a public interest orientation and no direct financial interest in the

176
Ryan v. Commodity Futures Trading Commission, 125 F.3d 1062 (7
th
Cir. 1997), available at
http://www.lawsource.com/also/posner.htm.
177
Paul Collins, Friends of the Supreme Court: Interest Groups and Judicial Decision Making (2008).
178
Paul Collins, Friends of the Supreme Court: Interest Groups and Judicial Decision Making (2008).
179
Federal Rules of Appellat Procedure, Rule 29 (2011), available at http://www.law.cornell.edu/rules/frap; 5 CFR
1201.34, available at http://cfr.vlex.com/vid/1201-34-intervenors-and-amicus-curiae-19607192.
180
27

outcome of the case. In 1997, the US Supreme Court amended its rules in order to
require all amicus briefs submitted to it to identify any parties, in addition to the
amici, who financially contributed to the preparation of the brief.
181

Courts are also aware that amici, especially NGOs, are not disinterested
experts, but parties with interests in achieving a particular outcome:

The courts do not seem to have been any illusions about the nature of
NGO interveners, and they appear perfectly able to distinguish
between an interveners broader ambitions and the legal merits of
their arguments, just as they are able to do in respect of the parties
themselves.
182

Again, courts generally have the discretion simply not to permit an
unsuitable third party to participate an amicus in proceedings.
183

Conclusion

It is in the public interest and the interests of justice for the Constitutional
Court and the Supreme Court to permit amicus participation in appropriate
circumstances. The jurisdictions and forums that permit amicus participation
provide helpful instances of the benefits of such participation. They may also
provide guidance as to the procedures and safeguards that may be adopted by other
courts to ensure that amicus participation is adopted only in appropriate
circumstances and in a manner which is consistent with, and supportive of, the
interests of the courts, the parties, and citizens.

181
Mary R. Vasaly and Reagan Williams Simpson, AMICUS BRIEF: HOW TO BE A GOOD FRIEND TO THE COURT 48
(2
nd
ed. 2004).
182
183
Mary R. Vasaly and Reagan Williams Simpson, AMICUS BRIEF: HOW TO BE A GOOD FRIEND TO THE COURT 23
(2
nd
ed. 2004).

Amicus Briefs CSP

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Amicus Briefs CSP

Uploaded by

Copyright:

Available Formats

COMPARATIVE STATE PRACTICE ON

AMICUS CURIAE PARTICIPATION

You might also like