THE LATIN PHRASE AMICUS CURIAE means “friend of the court”. This column considers the role and purpose of an amicus curiae in common law jurisdictions, civil law jurisdictions and areas of international law. It also examines the potential for the role of an amicus curiae to develop in mainland China.
An amicus curiae is a person – either an individual or an organization – that is not a party to a dispute but makes a submission to the court that is hearing the dispute. The submission might take various forms. For example, it might be in the nature of a legal brief; namely a written statement of the facts and legal points that supports one side of the dispute. In this situation, the submission is usually referred to as an “amicus brief”. Alternatively, the submission might provide an analysis of a legal point or expert information to the court and thereby assist the court in determining the dispute.
In most cases, special circumstances need to exist before a court will permit a submission from an amicus curiae. Special circumstances may arise if, for example, the matter that is the subject of the dispute is of public importance or the amicus curiae has information or expert knowledge that is not available from the parties to the dispute. A court may also be willing to permit a submission if the amicus curiae would assist the court in a unique manner or if one of the parties is in a position of disadvantage or is unrepresented (for a discussion about the challenges that arise when a party is unrepresented, see China Business Law Journal volume 7 issue 9: Self-represented parties).
It is relevant to note that an amicus curiae is not a party to the dispute. In this regard, the role of an amicus curiae is different from that of an intervener. An intervener is a person that is added as a party to the proceedings and is thereby subject to all the benefits and burdens of a party. For example, an intervener can appeal, tender evidence and participate fully in the proceedings. At the same time, an intervener will be bound by the decision (to the extent that it is applicable) and may also be subject to an adverse costs order requiring the intervener to pay all or some of the costs of the other parties.
Similar to an amicus curiae, special circumstances need to exist before a court will permit an intervener to be added as a party to the proceedings. In some cases, a court will permit an intervener if the decision may affect the rights of persons who are not parties to the proceedings. In this situation, the decision to permit the intervener is often said to be based on the rules of natural justice, which provide that persons who are likely to be affected by a judicial or administrative decision should have the right to be heard.
Common law jurisdictions. It is interesting to note that although the concept of an amicus curiae originated in Roman Law, which is the historical foundation for civil law jurisdictions, it was in common law jurisdictions that the concept was first adopted in a substantive way. The concept is now widespread in all common law jurisdictions, particularly the United States of America.
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com.