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 20The 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

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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 amici1) 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 Amicus Curiae, AMICUS CURIAE, available at http://amicuscuriae.org/. 4 Amicus Curiae, AMICUS CURIAE, available at http://amicuscuriae.org/. 5Amicus 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.


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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).


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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.


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application must be prompt20 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 Court’s 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 To Assist the Court – Third Party Interventions in the UK, JUSTICE, 15 (October 2009), available at http://www.justice.org.uk/data/files/resources/32/To-Assist-the-Court-26-October-2009.pdf. 23 To Assist the Court – Third Party Interventions in the UK, JUSTICE, 16 (October 2009), available at 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 To Assist the Court – Third Party Interventions in the UK, JUSTICE, 15 (October 2009), available at http://www.justice.org.uk/data/files/resources/32/To-Assist-the-Court-26-October-2009.pdf. 25 To Assist the Court – Third Party Interventions in the UK, JUSTICE, 16-17 (October 2009), available at http://www.justice.org.uk/data/files/resources/32/To-Assist-the-Court-26-October-2009.pdf. 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.


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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 Appeal’s 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 19th 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 Jivraj v. Hashwani (2011) UKSC 40, available at http://uslf.practicallaw.com/5-507-1339?q=&qp=&qo=&qe=. 31 Jivraj v. Hashwani (2011) UKSC 40, available at http://uslf.practicallaw.com/5-507-1339?q=&qp=&qo=&qe=. 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.


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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 Court’s acceptance of the American Jewish Committee’s 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 http://www.justice.org.uk/data/files/resources/32/To-Assist-the-Court-26-October-2009.pdf. 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&hl=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%20the%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=CSLWAR2-1986-2006&SizeDisp=7.


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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 amicus’s 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 Rules of the Supreme Court of the United States, 49 (January 2010) available at http://www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf. 54 Rules of the Supreme Court of the United States, 49 (January 2010) available at http://www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf. 55 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.


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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 Rules of the Supreme Court of the United States, 49 (January 2010) available at http://www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf. 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 KTA’s Motion to Dismiss, Kentlaw.edu, available at http://pbosnia.kentlaw.edu/amicus/Amicus%20Brief-posted-web.htm. 61 Manitoba Court of Queen’s 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 Queen’s 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/.


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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 court’s 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.


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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 Dollinger, in: Umbach/Clemens/Dollinger (ed.), BUNDESVERFASSUNGSGERICHTSGESETZ – MITARBEITERKOMMENTAR §27a ann. 22, 2nd ed. (2005). 78 Dollinger, in: Umbach/Clemens/Dollinger (ed.), BUNDESVERFASSUNGSGERICHTSGESETZ – MITARBEITERKOMMENTAR §27a ann. 22, 2nd ed. (2005). 79 Dollinger, in: Umbach/Clemens/Dollinger (ed.), BUNDESVERFASSUNGSGERICHTSGESETZ – MITARBEITERKOMMENTAR §27a ann. 25, 2nd ed. (2005). 80 Dollinger, in: Umbach/Clemens/Dollinger (ed.), BUNDESVERFASSUNGSGERICHTSGESETZ – MITARBEITERKOMMENTAR §27a ann. 8, 25, 2nd ed. (2005). 81 Dollinger, in: Umbach/Clemens/Dollinger (ed.), BUNDESVERFASSUNGSGERICHTSGESETZ – MITARBEITERKOMMENTAR §27a ann. 16, 20, 2nd ed. (2005).


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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 (Bâtonnier de l’Ordre) 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&prev=/search%3Fq%3Damicus%2Bcuriae%2Bin%2Bfrance%2B1988%26hl%3Den%26biw%3D1061%26bih%3D543%26prmd%3Dimvns. 84 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&prev=/search%3Fq%3Damicus%2Bcuriae%2Bin%2Bfrance%2B1988%26hl%3Den%26biw%3D1061%26bih%3D543%26prmd%3Dimvns. 85 Décret n°2010-164 du 22 février 2010 relatif aux compétences et au fonctionnement des juridictions administratives, available at http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000021862544&categorieLien=id. 86 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&prev=/search%3Fq%3Damicus%2Bcuriae%2Bin%2Bfrance%2B1988%26hl%3Den%26biw%3D1061%26bih%3D543%26prmd%3Dimvns.


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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 abortion90 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 Court’s questions.95

87 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&prev=/search%3Fq%3Damicus%2Bcuriae%2Bin%2Bfrance%2B1988%26hl%3Den%26biw%3D1061%26bih%3D543%26prmd%3Dimvns. 88 Cour d’appel de Paris, (July 1988). 89 Cass. Ass. Plén., (May 1991). 90 Cass. Ass. Plén., (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 d’appel de Paris, (July, 6 1988). 94 Denis Mazeaud, L’expertise de droit à travers l’amicus curiae, 109 (1995). 95 Denis Mazeaud, L’expertise de droit à travers l’amicus curiae, 109 (1995).


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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 d’Etat, 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 Décret n°2010-164 du 22 février 2010 relatif aux compétences et au fonctionnement des juridictions administratives, available at http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000021862544&categorieLien=id (administrative regulation issued by the French presidency). 97 Décret n°2010-164 du 22 février 2010 relatif aux compétences et au fonctionnement des juridictions administratives, available at 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 d’Etat, submission by Centre de Recherches et D’études sur les Droits Fondamentaux de l’université de Paris-Ouest-Nanterre-La Défense (CREDOF) (18 March 2010). 100 Ibanez Manuel Leandro and Others v. Undetermined Financial Institutions Federal nº 7 Sec 14 (1983), available at http://www.essex.ac.uk/tjn/documents/Amicus%20Banks%20(final-English%20version)March24.pdf. 101 Ibanez Manuel Leandro and Others v. Undetermined Financial Institutions Federal nº 7 Sec 14 (1983), available at http://www.essex.ac.uk/tjn/documents/Amicus%20Banks%20(final-English%20version)March24.pdf.


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administration of justice.”102 In addition, the amicus curiae has been integrated into Argentina’s 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 NGO’s 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 Ibanez Manuel Leandro and Others v. Undetermined Financial Institutions Federal nº 7 Sec 14 (1983), available at http://www.essex.ac.uk/tjn/documents/Amicus%20Banks%20(final-English%20version)March24.pdf. 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/ Ordonanţa 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 Romania, FRA, 12 (2011) available at http://fra.europa.eu/fraWebsite/attachments/access-to-justice-2011-country-RO.pdf. 109 Romania, FRA, 12 (2011) available at http://fra.europa.eu/fraWebsite/attachments/access-to-justice-2011-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.


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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.


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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 ECtHR’s 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 ECHR: Amicus Curiae, PICT RESEARCH MATRIX, available at http://www.pict-pcti.org/matrix/discussion/echr/echr_amicus.htm. 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 ECHR: Amicus Curiae, PICT RESEARCH MATRIX, available at http://www.pict-pcti.org/matrix/discussion/echr/echr_amicus.htm. 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).


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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.


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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 Court’s 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&caseId=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&caseId=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.


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“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 Regulation 1/2003, Art. 15, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:l:2003:001:0001:0025:en:PDF. 146 Regulation 1/2003, Art. 15, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:l:2003:001:0001:0025:en:PDF. 147 NMa Publishes Amicus Curiae Guidelines, CROSSBORDER (2004), available at http://crossborder.practicallaw.com/5-102-9948.


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Commission.148 The Venice Commission is “the Council of Europe’s 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 Europe’s 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 To Assist the Court – Third Party Interventions in the UK, JUSTICE, 4 (October 2009), available at http://www.justice.org.uk/data/files/resources/32/To-Assist-the-Court-26-October-2009.pdf.


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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 To Assist the Court – Third Party Interventions in the UK, JUSTICE, 4 (October 2009), available at http://www.justice.org.uk/data/files/resources/32/To-Assist-the-Court-26-October-2009.pdf. 154 Amicus Curiae, AMICUS CURIAE, available at http://amicuscuriae.org/. 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).


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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). 158Lee 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 Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 FLORIDA STATE UNIVERSITY LAW REView 315, 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.


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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 court’s 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 To Assist the Court – Third Party Interventions in the UK, JUSTICE, 4 (October 2009), available at http://www.justice.org.uk/data/files/resources/32/To-Assist-the-Court-26-October-2009.pdf. 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.


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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 state’s 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 Supreme Court, LEGAL DICTIONARY, available at http://legal-dictionary.thefreedictionary.com/Supreme+court. 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 Supreme Court, LEGAL DICTIONARY, available at http://legal-dictionary.thefreedictionary.com/Supreme+court.


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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 court’s 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 Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 FLORIDA STATE UNIVERSITY LAW REView 315, 344 (2008), available at .http://law.fsu.edu/journals/lawreview/downloads/352/garcia.pdf. 173 Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 FLORIDA STATE UNIVERSITY LAW REView 315, 316 (2008), available at .http://law.fsu.edu/journals/lawreview/downloads/352/garcia.pdf. 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.


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duplicate the arguments made in the litigants’ briefs, in effect, merely extending the length of the litigant’s 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 Court’s 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 (7th 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 Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 FLORIDA STATE UNIVERSITY LAW REView 315, 316 (2008), available at .http://law.fsu.edu/journals/lawreview/downloads/352/garcia.pdf.


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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 intervener’s 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 (2nd ed. 2004). 182 To Assist the Court – Third Party Interventions in the UK, JUSTICE, 52 (October 2009), available at http://www.justice.org.uk/data/files/resources/32/To-Assist-the-Court-26-October-2009.pdf. 183 Mary R. Vasaly and Reagan Williams Simpson, AMICUS BRIEF: HOW TO BE A GOOD FRIEND TO THE COURT 23 (2nd ed. 2004).