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.
The popularity of amicus curiae in common law jurisdictions is surprising in view of the adversarial approach adopted by common law courts. Under the adversarial approach, the court considers only the evidence and arguments presented by the parties and does not undertake its own investigation of the facts or the evidence as is the case in some civil law jurisdictions. The concept of an amicus curiae therefore represents a departure from the traditional adversarial approach in common law jurisdictions.
In common law jurisdictions, an amicus curiae does not have a right to make a submission to the court. Instead, the parties to the dispute must consent or the court must give leave (i.e., permission) for the amicus curiae to make a submission. In the US, the Supreme Court can appoint its own amicus curiae where neither party supports the decision of the lower court from which a decision is appealed.
Rule 37 of the Rules of the Supreme Court of the United States governs an amicus curiae brief and provides as follows:
37.1 An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored. An amicus curiae brief may be filed only by an attorney admitted to practice before this Court as provided in Rule 5.
37.2 (a) An amicus curiae brief … may be filed if accompanied by the written consent of all parties, or if the Court grants leave to file under subparagraph 2(b) of this Rule.
37.3 (a) An amicus curiae brief in a case before the Court for oral argument may be filed if accompanied by the written consent of all parties, or if the Court grants leave to file under subparagraph 3(b) of this Rule.
37.3 (b) When a party to a case before the Court for oral argument has withheld consent, a motion for leave to file an amicus curiae brief may be presented to the Court…
37.4 No motion for leave to file an amicus curiae brief is necessary if the brief is presented on behalf of the United States by the Solicitor General; on behalf of any agency of the United States allowed by law to appear before this Court…
In other common law jurisdictions, such as Australia, the decision to accept or refuse an application is completely within the discretion of the courts, which are generally reluctant to accept applications to appoint an amicus curiae. The reluctance is based on the concern that the appointment of an amicus curiae may interfere with the litigation or affect the efficient operations of court proceedings. In particular, the High Court of Australia has indicated that before agreeing to appoint an amicus curiae, the court should be satisfied that any cost to the parties or any delay that arises as a result of the appointment of the amicus curiae and the time to hear the submission will not be disproportionate to the assistance that the amicus curiae is expected to provide.
Civil law jurisdictions. The concept of an amicus curiae was not traditional recognised in civil law jurisdictions. However, many civil law jurisdictions now recognize this concept through rules, statues and court decisions. Jurisdictions in which the concept is well-established include France, Poland and Brazil. Some civil law courts permit submissions from an amicus curiae even though there is no express legal basis.
International law. The concept of an amicus curiae is also widely recognized in international courts and tribunals. These include the European Court of Human Rights and tribunals established under the North American Free Trade Agreement. Non-governmental organizations are particularly active in making submissions and developing the practice in this regard. The concept has been the subject of debate and controversy in the case of the World Trade Organisation (WTO). Some critics argue that it gives international organizations too much influence and that it provides an unfair benefit to developed countries. The Appellate Body of the WTO has justified the acceptance of amicus submissions on the basis of its broad authority to adopt procedural rules.
Mainland China. Chinese law does not expressly recognize the concept of an amicus curiae. However, in 2015, a Chinese law firm, AnJie Law Firm, reported that the Beijing IP Court had published a notice on its website requesting opinions on a provision in the Trademark Law. The notice was signed by the three judges who were members of the court panel assigned to hear the case. According to the report, the reason given for seeking the opinions was that the relevant legal provision was new and of importance to trademark filing practice and the growth of the trademark sector. The report went on to state the following:
The implications of this notice could be far-reaching in terms of improvement of the judiciary transparency and quality of adjudication. A system similar to amicus briefs will allow the courts to hear from those interested parties on some very complex legal issues that may have significant social impact. The involvement of key stakeholders and thought leaders, including those from the international legal community, will assist the courts to increase the depth of thinking. China now uses “guiding cases” or leading cases to improve the consistency of judgments and to guide local courts to deal with controversial issues. Amicus briefs will certainly benefit the courts to decide what should be those “guiding cases”.
The above practice of inviting opinions to assist the court in new areas of law does not appear to have developed significantly in mainland China since the 2015 report was published. However, it will be interesting to monitor developments in this respect and to see if mainland Chinese courts ultimately adopt a practice of accepting submissions from amicus curiae in court cases.
Finally, it is interesting to note that since 2015 the Taiwan Intellectual Property Court has invited submissions from amicus curiae in connection with intellectual property disputes and has published the amicus curiae opinions.
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.