Amicus Curiae in International Investment Arbitration: Can It Enhance the Transparency of Investment Dispute Resolution?

Abstract

In investment arbitration there is a tension between the consensual commercial character of a dispute and an increasing need to offer transparent proceedings where a public interest is involved. It came to be quite clear from the beginning of the twenty-first century that investment arbitration would benefit from being more transparent and that the participation of amici curiae might be one method of addressing the problem. The Article concentrates on the role of non-disputing parties in investment arbitration and the changes that have occurred in the arbitration rules and BITs during the last decade. It is argued that the participation of non-disputing parties does increase the transparency of investment arbitration and allows for a greater democratic legitimacy of the whole process. In particular, the Article advocates a view that it is both possible and desirable to enhance the existing procedural framework by guaranteeing to amici curiae access to the arbitration documents and to oral hearings, subject to the necessary protection of genuine commercial secrets.