NGO Participation in Investment Treaty Arbitration

Abstract

This chapter examines the role of NGOs in investment treaty arbitration, one of the areas of international law which has developed rapidly in recent years. Although NGOs have increasingly become influential in the international law sphere, there are areas where they are yet to play any significant role. Until recently, investment treaty arbitration was one of such areas. The procedural rules of investment treaty arbitration modelled on those of international commercial arbitration had not allowed participation by NGOs. However, the investment treaty arbitration regime has experienced a change on this account to the effect that the tribunals may now accept submissions of amicus curiae briefs by NGOs. This change was brought by the increasing recognition of the ‘public nature’ of investment treaty arbitration. Being a dispute between two parties, i.e. a foreign investor and the host state, an investor–state dispute may however have an impact beyond the disputing parties, in particular, the public policy of the host state. This is particularly the case where investors challenge the host states’ measures that (arguably) intend to protect public interests of the host state. This chapter examines this procedural change in investment treaty arbitration and argues that effective use of amicus curiae briefs in investment treaty arbitration procedure may help the tribunals to understand the issues of disputes from a broader perspective.