The Amicus Curiae in Investor-State Arbitration

Abstract

The role of the amicus curiae in international law varies according to the court or tribunal before which it seeks to appear. Through their respective procedural rules, international courts and tribunals have variously given amici curiae virtually no access to their chambers or given them full third party rights to participate. Drawing general conclusions about how international law regards amici curiae is thus very difficult. The result of this difficulty is evident in the literature on amici curiae in international litigation. Commentators typically discuss the role of amici curiae in one forum,1 in several fora in parallel,2 or through a comparative study discussing how one forum is more favourable than or exercises influence upon another forum.3 No commentary ever goes so far as to articulate a general international legal principle governing the admission of amici curiae to international tribunals. As Sir Arthur Watts observed, such procedural questions “can in practice only be pursued on a tribunal-by-tribunal basis.4 * BA (Hons) (Syd), LLB (Hons) (Syd), BCL (Dist) (Oxon). The author thanks the organisers of and participants in the CJICL Conference, and the anonymous referee, for their comments on earlier versions of this paper. All errors and opinions remain exclusively those of the author. 1 See e.g. P. Mavroidis, `Amicus Curiae Briefs before the WTO: Much Ado About Nothing', in A. Bogdandy et al (eds), European Integration and International Co-ordination (2002) 317. 2 See e.g. L. Bartholomeusz, `The Amicus Curiae before International Courts and Tribunals', (2005) 5 Non-State Actors and International Law 209. 3 See, e.g., J. Vinuales, `Amicus Intervention in Investor–State Arbitration', (2007) 61 Dispute Resolution Journal 72. 4 A. Watts, `Enhancing the Effectiveness of Procedures of International Dispute Settlement', (2001) 5Max Planck Yearbook of United Nations Law 21, at 21.