Amici Curiae in Civil Law Jurisdictions
Kochevar, Steven, The Yale Law Journal
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.
I. 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.
II. THE FIRST TWO DEVELOPMENTS: AMICUS ACTIVITY IN COMMON LAW JURISDICTIONS AND INTERNATIONAL ADJUDICATORY SYSTEMS
A. 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. …