Amici Curiae in Investor-State Arbitration: Eight Recent Trends

Abstract

This article identifies eight recent trends in the participation of amici curiae in the investor-State arbitration system. In doing so, it relies on a previous review by this author of all case law in which amici curiae requested participation rights in investor-State arbitrations. The eight trends identified are: (1) amici curiae are seeking to participate more regularly; (2) amici curiae are no longer only non-govemmental organisations; (3) amici curiae are participating outside the ICSID and NAFTA context; (4) within the NAFTA context, the scope of the requests made by amici curiae, and the procedure used to decide those requests, are now well settled; (5) outside the NAFTA context, the requests made by amici curiae have been consistently ambitious; (6) amici curiae participation favours States; (7) the system has become more permissive of amici curiae; and (8) despite increasing tolerance for amici curiae, the system is still a long way from granting them full participation rights.