The Participation of Amicus Curiae in Investment Treaty Arbitration

Abstract

The investment treaty arbitral tribunals had experienced a significant rise in the disputes initiated for non-commercial activities, such as environment protection, public health, human rights and labour standards. It has witnessed the increased involvement of civil society as non-disputing parties to gain access to these forums as amicus curiae. Initially, none of the international investment instruments had explicitly authorized the submission of amicus curiae briefs. In 2001, the NAFTA tribunal accepted amicus curiae briefs in most celebrated Methanex decision, it was followed by UPS and Glamis disputes. On 19 May 2005, the ICSID tribunal also admitted amicus briefs on the basis of public interest for the first time in Vivendi case, followed by Aguas Provinciales dispute in 2006 for the purpose of distribution of water. As an outcome of this Tribunal, the ICSID Rules were amended in 2006 to make explicit provision to accept amicus curiae briefs. The acceptance of amicus briefs clearly shows the interest of the common public and renders the award in a transparent manner. It was delayed, but welcomed the arrival of non-disputing parties in the ICSID and the UNCITRAL administered arbitrations. But, the confidentiality of proceedings still remains as a general rule. Amicus-curiae are refused to access documents and to attend hearings unless disputing parties consented to do so. This practice clearly raised a serious doubt on greater transparency and equal participation of non-disputing parties in arbitral proceedings. It is in this connection, the paper makes a concerted attempt to address the pertinent issues involved in participation of amicus curiae in arbitral proceedings. It further looks into the details on various issues on access to information, publication of awards and admissibility of amicus curiae briefs.