UBC FACULTY OF LAW JUBILEE EVENT
INTERNATIONAL TRADE AND INTELLECTUAL PROPERTY PANEL
INTERVENORS FOR THE PUBLIC GOOD?
AMICI CURIAE IN BIT AND NAFTA ARBITRATIONS
Dierk Ullrich*
Fasken Martineau DuMoulin LLP
Vancouver
30 September 2005
*Associate, Fasken Martineau DuMoulin LLP, Vancouver, B.C., Canada
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INTERVENORS FOR THE PUBLIC GOOD?
AMICI CURIAE IN BIT AND NAFTA ARBITRATIONS
Dierk Ullrich1
I.
Introduction
The amicus curiae, Latin for “friend of the court”, is a venerable institution in many courts
around the globe. To the common law it has been known for many centuries.2 However, in the
once secluded realm of international trade and investment law, friends of the court were, for the
longest time, an unknown species. But the proliferation of bilateral investment treaties and
attendant investor-state arbitrations since the early 1990s – Argentina, for example, faces more
than 30 claims by investors as a result of emergency measures taken in response to the economic
crisis in 2001-2002 – has caught the attention of civil society. This attention, in turn has led to
quite dramatic changes to the manner in which some investor-state arbitrations are conducted.
Under the banner of transparency, we have experienced over the last five years an unprecedented
access to procedural documents and awards, hearings open to the public3 and, it appears, the
acceptance in principle of amici curiae.4 Conceptually, this by no means is an easy or selfevident development. As stated in a recent OECD Working Paper, there is a considerable
tension between the traditional ways of investor-state dispute settlement and the new movement
towards transparency:
The system of investment dispute settlement has borrowed its main elements from the system of
commercial arbitration. However, investor-state disputes often raise public interest issues which
are usually absent from international commercial arbitration. As a result, the traditional manner in
1
The author thanks Rechtsreferendarin Tina Sell, an intern at Fasken Martineau DuMoulin LLP in Vancouver, for
her invaluable assistance in preparing this paper.
2
Amici have been known in England at least since the 17th century, where they are restricted to a very limited
function, see Canada (Attorney General) v. Aluminum Co. of Canada Ltd. (1987), 35 D.L.R. (4th) 495 at 505
(B.C.C.A.) which identifies three traditional roles assumed by amici curiae in England: (1) an invitation by a
court to the Attorney General where a matter of importance before the court could affect many other persons;
(2) an address to the court to prevent an injustice, for example by bringing to the court’s attention an authority or
point of law which may have been overlooked; (3) to represent unrepresented litigants.
3
In United Parcel Service of America Inc v. Government of Canada (UPS), open hearings in the jurisdiction phase
were conducted and broadcast live from July 29 to 31, 2002, see ICSID News Release, online:
http://www.worldbank.org/icsid/ups.htm. In Methanex Corporation v. United States of America (Methanex),
public hearings were conducted from June 7 to 17, 2004, see ICSID News Release, online:
http://www.worldbank.org/icsid/methanex-form.htm. In Canfor Corporation v. United States of America, public
jurisdiction hearings took place from December 7 to 9, 2004, see ICSID News Release, online:
http://www.worldbank.org/icsid/canfor.htm.
4
Methanex, Decision of the Tribunal on Petitions from Third Persons to Intervene as “Amici Curiae”, 15 January
2001; UPS, Decision of the Tribunal on Petition for Intervention and Participation as “Amici Curiae”,
17 October 2001; Aguas del Tunari, S.A. v. The Republic of Bolivia, ICSID Case No. ARB/02/3, Letter of the
President of the Tribunal to J. Martin Wagner, Director, International Program, Earthjustice, 29 January, 2003
(Tunari); Aguas Argentinas, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to a
Petition for Transparency and Participation as Amicus Curiae, 19 May 2005 (Argentinas).
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-3which governmental measures are reviewed for compliance with international law in a private
setting, i.e. confidential in camera proceedings, has come under increased scrutiny and criticism.5
This paper explores the new role of amici curiae in investor-state dispute resolution by first
reviewing, in a general fashion, some common features of the Role of the amicus (Part II);
discussing briefly bilateral investment treaties and their dispute resolution mechanisms (Part III);
and surveying the case law and what may be termed “legislative changes” concerning amici
curiae (Part IV). The general purpose of this paper is to take stock of current developments.
However, in its final part some preliminary observations and conclusions are offered.
II.
The Role of Friends of the Court
The friend of the court is a common guest in public interest litigation in North America,
particularly in proceedings before the Supreme Court of Canada6 and its American counterpart.7
The modern function of the amicus is that of an advocate for a public or special interest affected
by a piece of litigation. Black’s Law Dictionary offers the following useful definition:
A person who is not a party to a lawsuit but who petitions the court or is requested by the court to
file a brief in the action because that person has a strong interest in the subject matter.8
Generally speaking, any person or group who establishes this strong interest may assume the role
of friend of the court: environmental or human rights groups, trade unions or business
associations, neighbourhood or community organizations, churches, politicians or research
groups; the cast of characters is as diverse as civil society. Participation as amicus curiae is a
form of intervention in court proceedings, which may involve written and/or oral submissions,
but must be distinguished from party status.9 As it was put by Muldoon and Scriven:
5
Organization for Economic Cooperation and Development, Transparency and Third Party Participation in
Investor State-Dispute Settlement Procedures (Working Papers on International Investment 1/2005) (April 2005)
at para. 1, available on the OECD website, online: http://www.oecd.org/dataoecd/25/3/34786913.pdf.
6
Supreme Court Act, R.S.C. 1985, c. S-26, s.53(6); Rules of the Supreme Court of Canada, SOR/2002-156, Rules
55-59 and 92. For example, 27 intervenors participated in the recent Reference Re Same Sex Marriage, [2004] 3
S.C.R. 698, 2004 SCC 79.
7
See the Rules of the Supreme Court of the United States, in particular Rule 37 (May 2, 2005), available on the
website of the Supreme Court of the United States, online:
http://www.supremecourtus.gov/ctrules/rulesofthecourt.pdf.
8
Bryan Garner, ed., Black’s Law Dictionary, 8th ed. (St. Paul: Thomson, 2004) at 93.
9
This distinction is illustrated in Adler v. Ontario (1992) 7 C.P.C. (3d) 180 (Gen.Div.) at 187 and the Ontario Rules
of Civil Procedure, Rules 13.01 and 13.02, which provide:
13.01(1) Where a person who is not a party to a proceeding claims,
(a) an interest in the subject matter of the proceeding;
(b) that he or she may be adversely affected by a judgment in the proceeding; or
(c) that there exists between him or her and one or more of the parties to the
proceeding a question of law or fact in common with one or more of the
questions in issue in the proceeding,
the person may move for leave to intervene as an added party.
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-4A friend of the court cannot assume the function of a party. Thus, it would be improper for a
friend of the court to assume management of the action. An amicus must accept the parameters of
the case as defined by the parties or, in other words, accept the case on an “as is” basis. A friend
of the court cannot institute any new proceedings or introduce a new cause of action apart from
submissions of written or oral arguments and matters incidental thereto, pleadings cannot be
filed.10
To take Canada as an example, our courts have the authority to admit “interested” non-parties as
intervenors in most types of proceedings.11 Usually, this power is codified in a court’s rules of
procedure12, but it may be – as in British Columbia – courts have developed procedures for nonparty intervention as part of their inherent jurisdiction.13 Requests for amicus curiae
interventions have also occupied our courts in review proceedings of awards rendered under the
North American Free Trade Agreement (NAFTA)14, between Canada, Mexico and the United
States.15
Internationally, some courts and tribunals have a developed practice, or have recognized their
authority, to permit amicus submissions. Examples are the European Court of Human Rights,
the Interamerican Court of Human Rights, Iran-U.S. Claims Tribunal and, in the area of
international economic law, the Appellate Body of the World Trade Organization (WTO).16 One
commentator neatly summarizes the function of amici curiae in the international law sphere in
these words:
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice
the determination of the rights of the parties to the proceeding and the court may add the person as
a party to the proceeding and may make such order as is just.
13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or master,
and without becoming a party to the proceeding, intervene as a friend of the court for the purpose
of rendering assistance to the court by way of argument.
10
David Scriven & Paul Muldoon, “Intervention as Friend of the Court: Rule 13 of the Ontario Rules of Civil
Procedure”, (1985) 6 Adv. Q. 448 at 459, who also provide an excellent overview of the historical development
of amici from friend to advocate.
11
Peter W. Hogg, Constitutional Law of Canada, 4th ed., loose-leaf (Toronto: Carswell, 1997) at 56.6(b).
12
For example, Rule 13.02 of the Manitoba Court of Queen’s Bench Rules; Rule 8.02 of the Civil Procedure Rules –
Nova Scotia.
13
Aluminum Co. of Canada Ltd. at 507. The test in British Columbia is whether the intervenor (1) has a direct
interest in the litigation; (2) will make a valuable contribution; or (3) bring a different perspective to it. See
MacMillan Bloedel Ltd. v. Mullin (1985), 66 B.C.L.R. 207 (C.A.), and more recently [2001] B.C.J. No. 901;
2001 BCCA 264. See also Holly A. Brinton, Civil Appeal Handbook, loose-leaf (Vancouver: Continuing Legal
Education, 2003) at §4.20.
14
North American Free Trade Agreement Between the Government of Canada, the Government of Mexico and the
Government of the United States, 17 December 2002, (1993) 32 I.L.M. 289; Can T.S. 1994 No. 2.
15
See, for example, Canada (Attorney General) v. S.D. Myers. Inc. [2001] F.C.J. No. 567 (T.D.) (OJ), 2001 FCT
317; appeal dismissed [2002] F.C.J. No. 125 (C.A.) (OJ), 2002 FCA 39; application for leave to appeal
dismissed with costs, [2002] S.C.C.A. No. 149 (OJ).
16
See Andrea K. Bjorklund, “The Participation of Amici Curiae in NAFTA Chapter Eleven Cases” (22 March
2002), available on the website of the Department of Foreign Affairs and International Trade, online:
http://www.dfait-maeci.gc.ca; see also, for example, Iran U.S. Claims Tribunal, Award No. 63-A/15-FT, 2 IranUS C.T.R. 40 at 43.
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-5First, they often supplement or provide detailed analysis of points of law, including discussion and
citation of authority not contained in the parties’ arguments. Second, they can supply detailed
legislative or jurisprudential history, a scholarly exposition of the law. Amici may present
arguments the parties are unable or unwilling to make because of political pressure or other
tactical considerations. Amici frequently discuss the broader implications of decisions that the
main parties have either purposefully or inadvertently failed to address. Finally, they assist when
courts are expanding into areas of novel and complex litigation.17
Five years ago, it was still an open question whether the amicus could play a similar role in
disputes arising between an investor and a host state under a bilateral investment treaty or similar
international instrument.
II.
Investment Protection Treaties and Investor-State Dispute Settlement
A bilateral investment treaty is an agreement between two states governed by international law
providing for the reciprocal promotion and protection of investments from one state to the other.
BITs belong to a family of bilateral, regional or multilateral economic agreements, which
includes double taxation treaties as well as preferent ial trade and investment agreements.
NAFTA is an example of the last category. The treaty contains a chapter on investment, sharing
many features of a typical BIT.
The purpose of BITs and NAFTA’s investment chapter is to stimulate and protect foreign
investment as a source of economic growth. Typically, this objective is pursued by creating a
system of legal rules and obligations, which guarantees investors from a BIT the same treatment
as domestic or other foreign investors; guarantees a minimum standard of treatment based on
customary international law; prohibits expropriation without prompt, adequate and effective
compensation; or allows for the repatriation of funds.18
By the end of 2004, the United Nations Conference on Trade and Development (UNCTAD)
counted 2,392 signed BITs, of which 1,718 were in force.19 Canada, for example, has signed 23
so called Foreign Investment Protection Agreements (FIPAs).20 These numbers indicate that
BITs are recognized as important tools of economic policy for industrialized and developed
nations alike.21 However, to understand the vast proliferation of BITs, a short historical review
is apposite.
17
Dinah Shelton, “The Participation of Nongovernmental Organizations in International Judicial Proceedings”,
(1994) 88 AJIL 611 at 618.
18
See, for example, the Agreement between the Government of the Republic of Croatia and the Government of
Canada for the Promotion and Protection of Investments, 30 January 2001, C.T.S. 2001/4.
19
UNCTAD, “Recent developments in international investment agreements”, Research Note (30 August 2005) at 1,
7, available online: http://unctad.org.
20
Canada’s FIPAs are with Poland, Argentina, the Czech and Slovak Federal Republic, Ukraine, Philippines,
Barbados, Venezuela, Egypt, Armenia, Lebanon, Croatia, South Africa, USSR, Hungary, Latvia, Trinidad and
Tobago, Ecuador, Panama, Thailand, Uruguay, Costa Rica, Romania and El Salvador. The treaties with South
Africa and El Salvador are not yet in force. The texts of the treaties are available from the Department of
Foreign Affairs and International Trade, online: http://www.dfait-maeci.gc.ca.
21
See, for example, Hugo Perezcano, “Investment Protection Agreements - Should a Multilateral Approach be
Reconsidered?”(2003) 4 Journal of World Investment 929 at 933.
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-6Traditionally, customary international law on state responsibility has afforded some measure of
protection to aliens and their property in a foreign country. A foreign investor who had suffered
a wrong at the hands of the host state, for example the expropriation of a factory, would seek
diplomatic protection by the investor’s home state. The home state would adopt the investor’s
case as a violation of the state’s rights under international law and seek a remedy from the
responsible home state.22
For investors, diplomatic protection meant a considerable degree of uncertainty. For instance, a
home state might not adopt the investor’s case or might not advance it effectively for political
reasons. This problem was widely recognized after the Second World War. Further, since
multilateral approaches failed persistently,23 BITs have evolved as an alternative rule-based
system creating more predictable and efficient investor protection, and keeping at bay the
vagaries of international diplomacy and politics.24 This is the result particularly of one groundbreaking innovation in BITs (and NAFTA): to provide for dispute settlement directly between an
investor and a host state. Generally speaking, an aggrieved investor - instead of its home state may initiate before an international tribunal an arbitration proceeding against the host state over a
dispute relating to an alleged breach of the BIT.
Investor-state dispute settlement has created a powerful decentralized monitoring and
enforcement mechanism. By empowering each investor to take actions individually and
independently, states have not only equipped the former with a more direct and more effective
instrument of investment protection.25 At the same time, economic self-interest motivates
22
See generally Ian Brownlie, Principles of Public International Law, 5th ed. (Oxford: Clarendon Press, 1998),
Chapter XXIV.
23
See Rudolph Dolzer & Margrete Stevens, Bilateral Investment Treaties (The Hague: Martinus Nijhoff, 1995) at 12. The last ill-fated attempt to create a multilateral investment protection regime was negotiation of a
Multilateral Agreement on Investment under the auspices of the OECD, which was postponed indefinitely in
1998; see OECD News Release “Informal Consultations on International Investment”, Paris: OECD, 3
December 1998.
24
Some countries, like the United States and Japan, originally tried to improve protection of their investors by
inserting rights of entry and residence, protections for commercial activity, property and investment as well as
guarantees of non-discrimination and minimum treatment; see, for example, The Treaty of Friendship,
Commerce and Navigation between the United States of America and the Federal Republic of Germany of
October 29, 1954; available on the website of the U.S. Diplomatic Mission to Germany, online:
http://usa.usembassy.de/etexts/friendtreaty4555.htm. See also generally, Knut Ipsen, Völkerrecht, 4th ed. (C.H.
München: C.H. Beck, 1999) at 653 et seq.
25
The extension of standing to private investors before tribunals established under public international law has
spurred a lively debate on the status of these private parties under international law. Some argue that investors
are doing nothing more than acting on behalf of a state Party enforcing the state’s treaty rights. See, for example,
the Tribunal in The Loewen Group, Inc and Raymond Loewen v. United States of America, ICSID Case
No. ARB(AF)/98/3 (Award) (June 26, 2003) at para. 233. The contrary view argues that investors have become,
within the scope of a BIT and the ICSID Convention, subject of public international law; see, for example,
A. Broches, “The Convention on the Settlement of Investment Disputes Between States and Nationals of other
States” (1972) 136 Recueil des Cours 331 at 349: “From the legal point of view, the most striking feature of the
[ICSID] Convention is that it firmly establishes the capacity of a private individual or a corporation to proceed
directly against a State in an international forum, thus contributing to the growing recognition of the individual
as a subject of international law.” See also M. Janis, “Individuals as subjects of international law” (1984) 17
Cornell International Law Journal 61; R. Bruno and J.H.H. Weiler, “Access of Private Parties to International
Dispute Settlement: A Comparative Analysis” Harvard Jean Monnet Working Paper no 13/97, available on the
website of NYU School of Law, Jean Monnet Center, online: http://www.jeanmonnetprogram.org/papers/97/97-
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-7foreign investors to watch the rule-compliance by the host state on behalf of the other state
Parties. Like Argus the hundred-eyed guardian in ancient Greek mythology, foreign investors
will be watchful in all directions and will never sleep.
It is common in BITs to give investors a choice between different institutional or ad hoc dispute
settlement procedures. For example, the Canada-Ukraine BIT makes available three arbitration
systems, each with is own procedural rules to govern the arbitration26:
(a)
the Convention on the Settlement of Investment Disputes between States and
National of Other States (“ICSID Convention”); 27
(b)
the Additional Facility Rules of the International Centre for Settlement of
Investment Disputes28 (“Additional Facility Rules”); and
(c)
the UNCITRAL Arbitration Rules.29
The same dispute resolution procedures are available to investors under NAFTA. 30 It is,
however, possible for the state parties to a BIT to negotiate modifications of these arbitration
rules. This ability to modify and the choice of arbitration procedure, as will be shown below, are
important factors for the recognition of amici curiae.
III.
Friends of the Court in International Investment Disputes
1.
The WTO Experience
As mentioned earlier, the involvement of amici in international investment disputes is a very
recent phenomenon. A direct impetus for this development appears to come from the dispute
resolution experience of the WTO, the international organization charged with administering a
framework of multilateral agreements regarding trade in goods, services and trade-related
intellectual property rights. Disputes between the Member countries of the WTO are submitted
13.html; Luke Peterson, “Emerging Bilateral Investment Treaty Arbitration and Sustainable Development”
Research Note for the International Institute for Sustainable Development (IISD) at 1, available on the website of
the IISD, online: http://www.iisd.org/pdf/2003/investment_investsd_note_2003.pdf. A subject under
international law in this context is understood to hold substantive rights, which it may enforce before an
international forum or to have substantive duties, for which it may be held responsible before an international
forum, with rights and duties being created by rules of public international law, see Bruno/Weiler, ibid.
26
Article XIII (4) (a)-(c) of the Agreement between the Government of Canada and the Government of Ukraine for
the Promotion and Protection of Investments, dated 24 October 1994. Since Ukraine is a signatory to the ICSID
Convention but Canada is not, investors are in effect limited to the ICSID Additional Facility Rules or the
UNCITRAL Arbitration Rules.
27
18 March 1965, 575 U.N.T.S. 159. With references in more than 900 BITs, the International Centre for
Settlement of Investment Disputes (ICSID), part of the World Bank organization, is the arbitration institution
most often made available by state parties; see ICSID, online: http://www.worldbank.org/icsid/about/about.htm.
Other common dispute resolution mechanisms are the Arbitration Rules of the United Nations Commission on
International Trade Law and the International Chamber of Commerce.
28
(1982) 21 I.L.M. 1443.
29
15 December 1976, (1976) 15 I.L.M. 701.
30
Art. 1120(1)(a)–(c) in connection with Art. 1139 definitions 10 and 20 NAFTA.
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-8to ad hoc panels in accordance with the so-called Understanding on Rules and Procedures
Governing the Settlement of Disputes (DSU)31, with a right to appeal to the standing Appellate
Body.
A dispute between several Asian shrimp fishing nations and the United States over the
discriminatory effect of U.S. legislation designed to protect endangered sea turtles, led several
non-governmental organizations to submit briefs to the competent dispute resolution panel.32
The DSU allows panels to seek information from any individuals or body it deems appropriate.33
Reading this power restrictively, the panel refused to consider the amicus briefs, stressing that it
did not request the information. As the panel concluded, accepting non-requested information
from non-governmental sources would be incompatible with the provisions of the DSU.34 The
Appellate Body disagreed with this literal and “unnecessarily formal and technical”
interpretation. Noting that only Member states as parties to a dispute or third parties had a legal
right to make submissions and to have them considered by a panel, the Appellate Body held that
the admission of other briefs or statements engaged a panel’s ample and extensive authority to
undertake and to control the process of establishing the facts and law applicable to a dispute.
This authority gave the panel a discretion, informed by its mandate to make an objective
assessment of the matter before it, to admit amicus briefs whether requested or not. The panel’s
discretion must be exercised so as not to unduly delay the panel process and may include
appropriate conditions.35
Two years later, in the Hot-rolled Steel dispute36, the Appellate Body had opportunity to revisit
its position on amici submissions, this time as a question of its own power to receive such briefs.
31
Annex 2 of the Agreement Establishing the World Trade Organization (15 April 1994), available on the website of
the World Trade Organization, online: http://www.wto.org/english/docs_e/legal_e/28-dsu.pdf.
32
United States – Import Prohibition of Certain Shrimp and Shrimp Products (12 October 1998),
WTO Doc. WT/DS58/AB/R (Appellate Body Report). The law required nations catching wild shrimp and
exporting them to the United States to be certified as having adopted specific conservation measures, such as
equipping shrimp trawls with "turtle-excluder devices" (TEDs), attachments that enable turtles to exit unharmed
from nets. The US measure was challenged at the WTO by four Asian countries (India, Malaysia, Pakistan and
Thailand) in 1996. The countries claimed that the U.S. Turtle Shrimp Law was an illegal restriction on their
shrimp exports and thus contravened WTO obligations. The WTO ruled in 1998 against the United States.
33
Article 13 of the DSU, titled “Right to Seek Information” provides:
1. Each panel shall have the right to seek information and technical advice from any individual or body,
which it deems appropriate. However, before a panel seeks such information or advice from any individual or
body within the jurisdiction of a Member it shall inform the authorities of that Member. A Member should
respond promptly and fully to any request by a panel for such information as the panel considers necessary and
appropriate. Confidential information which is provided shall not be revealed without formal authorization from
the individual, body, or authorities of the Member providing the information.
2. Panels may seek information from any relevant source and may consult experts to obtain their opinion on
certain aspects of the matter. With respect to a factual issue concerning a scientific or other technical matter
raised by a party to a dispute, a panel may request an advisory report in writing from an expert review group.
Rules for the establishment of such a group and its procedures are set forth in Appendix 4.
34
United States – Import Prohibition of Certain Shrimp and Shrimp Products (15 May 1998),
WTO Doc. WT/DS58/R, para. 7.8 (Panel Report).
35
Shrimp AB Report at paras. 102 and 105-108.
36
United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel
Products Originating in the United Kingdom (10 May 2000), WTO Doc. WT/DS138/AB/R (Appellate Body
Report).
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-9The case involved countervailing duties imposed by the U.S. to offset subsidies received by a
privatized steel and lead manufacturer when the company was still government owned. Two
U.S. steel industry associations submitted “amicus curiae briefs”, essentially in support of the
U.S. case, to the Appellate Body. After observing that nothing in the DSU framework expressly
empowered or limited the Appellate Body to accept and consider non-party submissions, it
focused on Article 17.9 of the DSU as a source of authority:
Working procedures shall be drawn up by the Appellate Body in consultation with the Chairman
of the DSB [Dispute Settlement Body] and the Director-General, and communicated to the
Members for their information.
Reasoning that “[t]his provision makes clear that the Appellate Body has broad authority to
adopt procedural rules which do not conflict with any rules and procedures in the DSU or the
covered agreements” it concluded that it had the legal authority to decide whether or not to
accept and consider any information the Appellate Body believed to be pertinent and useful in an
appeal.37
The reports of the WTO Appellate Body are significant as modern judicial authorities in the field
of international economic law endorsing amicus curiae intervention. Prospective amici as well
as tribunals in investor-state disputes under BITs and NAFTA have relied on the Appellate Body
decisions as persuasive international practice.38
2.
Amici Curiae in Investment Treaty Disputes
Interested individuals and non-governmental organizations (NGOs) have so far sought amicus
status in four reported cases concerning such diverse issues as water concessions, fuel additives
and competition in postal services. Two of the cases arose under NAFTA Chapter 11, two were
BIT disputes administered by ICSID. Given the type of disputes often involved in investor-state
arbitrations, it is actually quite surprising that they have not given rise to more applications for
third party participation.39 As the following overview will demonstrate, there are many
commonalities between the four decisions in terms relief sought, reasoning and rationales of the
decisions and outcomes. Further, it should be borne in mind that there was a considerable degree
of cross-fertilization between the arbitral tribunal decisions and the state or “legislative”
responses discussed below.
37
Hot-Rolled Steel AB Report at para. 39. The Appellate Body once again emphasized that legal rights only accrued
to Member states and that there was, correspondingly, no duty on the part of the Appellate Body to accept or
consider amicus submissions (at paras. 40-42).
38
See, for example Methanex, para. 31.
39
Although it is possible that other tribunals have received applications and that their rulings were not disclosed, this
appears unlikely, given the practice of some NGOs to publicize such decisions. For example, Earthjustice, who
acted as counsel in most of the amicus applications, published the letter of the Tunari tribunal rejecting its
application.
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- 10 (a)
Methanex Corporation v. United States of America
Methanex, a Canadian company, commenced a NAFTA Chapter 11 arbitration against the
United States seeking damages for the ban of MTBE40, a fuel additive, in California. Methanex’s
claim was dismissed on jurisdictional grounds in August 2005.41 Methanex is significant for two
innovations. It was the first investment treaty dispute where a tribunal found that it had the
power to admit amicus submissions42, and it was the first dispute where the disputing parties
agreed conduct open hearings on the merits and to make public the main procedural
documents.43 The catalyst of these groundbreaking developments was petitions from several
NGOs in 2000, requesting the following relief:
(a)
permission to file an amicus brief;
(b)
permission to review the parties’ written pleadings;
(c)
permission to attend all hearings;
(d)
permission to make oral submissions44; and
(e)
public hearings45.
The Tribunal allowed only the first request. Following the same analytical approach as the WTO
Appellate Body, it noted the absence of any express provision in NAFTA or the UNCITRAL
Arbitration Rules in favour or against admission of amici curiae. Turning to Article 15(1) of the
UNCITRAL Arbitration Rules as the source of the tribunal’s general power to conduct the
arbitral proceedings, it concluded that it was endowed with authority to decide whether or not to
receive amicus submissions subject, however, to the dictates of other procedural rules, the
principle of equality46 and a disputing parties opportunity to be fully heard.47 In doing so, the
tribunal also affirmed its complete discretion to determine the admissibility, relevance,
40
MTBE stands for methyl tertiary butyl ether.
Methanex, Final Award of the Tribunal on Jurisdiction and Merits (3 August 2005). The tribunal further held that,
assuming it did have jurisdiction, it would dismiss the claims on their merits.
42
See, for example, Howard Mann, "Opening the Doors, at least a little: Comment on the Amicus decision in
Methanex v. United States" (2001) 10 RECIEL 241, available on the IISD website, online:
http://www.iisd.org/pdf/2001/trade_reciel_methanex.pdf.
43
See ICSID News Release, online: http://www.worldbank.org/icsid/methanex-form.htm; and Methanex, Joint
Motion to the Tribunal Regarding the Petitions for Amicus Curiae Status (31 January 2003) at para. 14, note 2
(“Methanex Joint Motion”).
44
Methanex, Decision of the Tribunal on Petitions from Third Persons to Intervene as “Amici Curiae” (15 January
2001) at paras. 5, 7 (“Methanex Decision”).
45
Methanex Joint Motion at para. 20.
46
While acknowledging amicus submissions pose the risk of an increased burden on the disputing parties, the
Methanex tribunal also observed that it would be shared by both parties and could be mitigated through
appropriate procedures; Methanex Decision at paras. 36-37.
47
Methanex Decision at paras. at 24-34, 38, 39. Article 15(1) of the UNCITRAL Arbitration Rules says:
(1) Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers
appropriate, provided that the parties are treated with equality and that at any stage in the proceedings each party
is given a full opportunity of presenting its case.
41
DM_VAN/900287-00002/6400678.4
- 11 materiality and weight of amicus submissions.48 Eventually, although it was “minded to
exercise” its discretion in favour of allowing written amicus submissions, it deferred this
decision to a later stage of the proceedings.49
As regards the petitioner’s attendance and oral submissions at the hearings, the tribunal found
itself bound by Article 25(4) of the UNCITRAL Arbitration Rules, which stipulates that
“[h]earings shall be held in camera unless the parties agree otherwise …” as the Claimant had
withheld its consent.50 Finally, on the request for access to documents, the tribunal pointed to
the confidentiality agreement of the disputing parties as governing.51 As members of the public
without any procedural rights in the arbitration, the petitioners were thus referred to materials
available in the public domain or from the parties. With regard to the larger, policy implications
of its decision, the tribunal commented:
There is undoubtedly public interest in this arbitration. The substantive issues extend far beyond
those raised by the usual transnational arbitration between commercial parties. … The public
interest in this arbitration arises from its subject-matter, as powerfully suggested in the Petitions.
… the Chapter 11 arbitral process could benefit from being perceived as more open or transparent;
or conversely be harmed if seen as unduly secretive. In this regard, the Tribunal’s willingness to
receive amicus submissions might support the process in general and this arbitration in particular;
whereas a blanket refusal could do positive harm.52
(b)
United Parcel Service of America Inc. v. Government of Canada
The UPS claim, brought under Chapter 11 of NAFTA, concerns alleged anti-competitive
behaviour of Canada Post Corporation, a federal Crown corporation, in the liberalized courier
market as well as discriminatory conduct against UPS Canada by federal agencies. Perhaps
heartened by the success of the amicus petition before the Methanex tribunal, the Canadian
Union of Postal Workers and the Council of Canadians petitioned the tribunal for standing as
parties in the proceedings. Amicus curiae intervention, albeit coupled with extensive procedural
rights, was only an alternative request. Additionally, the petitioners requested orders for:
(a)
public disclosure of submissions, motions and evidence;
(b)
the right to make submissions on the place of arbitration and the tribunal’s
jurisdiction; and
(c)
opportunity to amend its submissions following disclosure.53
48
Methanex Decision at para. 36.
Methanex Decision at paras. 48, 52-53.
50
Methanex Decision at paras. 40-42, 47.
51
Methanex Decision at paras. 46, 47. The confidentiality agreement, recorded in a Consent Order of the tribunal,
allowed parties to disclose the major pleadings, orders and awards of the tribunal. See also paras. 43-45 for an
interesting discussion of the role of confidentiality in international arbitrations.
52
Methanex Decision at para. 49.
53
UPS, Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae (17 October 2001)
at paras. 1, 4 (“UPS Decision”).
49
DM_VAN/900287-00002/6400678.4
- 12 On the issue of standing, the UPS tribunal found that NAFTA Chapter 11 and the UNCITRAL
Arbitration Rules, which governed the proceedings, did not confer express authority to add
parties; that NAFTA, and in particular the rules on participation of non-disputing NAFTA
Parties,54 militated for an adverse inference; and that the scope of Article 15 of the UNCITRAL
Arbitration Rules was confined to the exercise of jurisdiction conferred upon the tribunal by the
parties and could not be used to alter the nature of the dispute or the rights of the disputants by
adding new parties to the arbitration.55
The tribunal agreed, however, that with the conclusion reached in the Methanex Decision it could
exercise its powers over arbitral procedure to admit amicus curiae submissions where it would
“facilitate the Tribunal’s process of inquiry into, understanding of, and resolving” the dispute
submitted to arbitration.56 The procedural default in the UNCITRAL Arbitration Rules of in
camera proceedings meant that the tribunal could only receive written amicus briefs as third
parties were excluded from attending the hearings.57 Further restrictions to the tribunal’s
discretion flowed from the need to resolve the underlying dispute in a just, efficient and
expeditious manner and to avoid undue burdens for the parties as well as complications to the
arbitral process.58 With regard to access to documents, the tribunal showed a discriminating eye.
Noting the tension between confidentiality and transparency concerns as well as the potential
effect of confidentiality agreements between the disputing parties, the tribunal felt that the issue
was not appropriate for a general ruling.59 The tribunal’s perspective is best captured in the
following assessment:
The Tribunal returns to the emphasis which the Petitioners, with considerable cogency, have
placed both on the important public character of the matters in issue in this arbitration and on their
own real interest in these matters. It recalls as well the emphasis placed on the value of greater
transparency for proceedings such as these. Such proceedings are not now, if they ever were, to be
equated to the standard run of international commercial arbitration between private parties.
Subsequently, Canada and UPS agreed to make “publicly available pleadings, and submissions
of any disputing party or NAFTA Party, together with their appendices and attached exhibits,
including the note of intent, notice of arbitration, amended statement of claim, statement of
defense, memorials, affidavits, responses to tribunal questions, transcripts of public hearings,
correspondence to or from the Tribunal, and any awards, including procedural orders, rulings,
preliminary and final awards” and to open the hearings for the public.
54
Article 1128 NAFTA.
UPS Decision at paras. 35-39, 60-61, 65. This interpretation conforms to the obiter dicta of the Methanex
tribunal; see Methanex Decision at paras. 27, 29.
56
UPS Decision at paras 60-63. As the WTO Appellate Body and the Methanex tribunal, the UPS tribunal stressed
that the power to grant leave for amicus submissions is not equivalent to third party rights, see para. 61.
57
UPS Decision at para. 67. The interplay of Article 25(4) of the UNCITRAL Rules, which imposes closed
hearings subject to contrary agreement by the parties, and Article 15(1) also disposed of the Petitioner’s request
to present or cross-examine witnesses, see para. 69.
58
UPS Decision at para. 69. In this respect, the tribunal considered a limitation on length of written submissions as
appropriate.
59
UPS Decision at para. 68. By way of Procedural Directions for Amicus Submissions (4 April 2003), the tribunal
subsequently decided that the petitioners be given access to current and future pleadings, which, by agreement of
the parties included unredacted submissions. See UPS, Procedural Direction of the Tribunal (14 March 2005).
55
DM_VAN/900287-00002/6400678.4
- 13 (c)
Aguas del Tunari, S.A. v. The Republic of Bolivia
Tunari involves an investor claim against Bolivia over the cancellation of a concession contract
for the water and sewage system of the city of Cochabamba in 2000. Aguas del Tunari
commenced arbitration proceedings pursuant to the bilateral investment treaty between Bolivia
and the Netherlands,60 which are currently pending at ICSID.61 In August 2002, well in advance
of hearings on jurisdiction, Dutch and Bolivian groups and citizens filed a petition to the Tunari
tribunal, requesting, among other things, the following relief:
(a)
standing to participate as parties;
(b)
alternatively, participation as amici curiae, including permission
(i)
to make submissions on procedural issues, jurisdiction, and the merits of
the dispute;
(ii)
to attend all hearings;
(iii)
to make oral submissions; and
(iv)
to have access to all submissions to the tribunal;
(c)
public disclosure of all submissions, evidence and transcripts;
(d)
public hearings in Cochabamba; and
(e)
an opportunity to respond to party submissions regarding the petition.62
By letter dated January 29, 2003, the tribunal denied the request for essentially three reasons:
lack of authority, lack of party consent, and prematurity. Based on the interplay between the
ICSID Convention and the Bolivia/Dutch BIT, the tribunal concluded that it did not have the
power to join non-parties to the proceedings or to grant them or the public access to hearings.
Further, given the consensual nature of the arbitral process with its emphasis on party control,
these forms of participation required the consent of both disputing parties which was not
forthcoming. Finally, the Tribunal had this to say with respect to amicus submissions:
Third, the Tribunal is of the view that there is not at present a need to call witnesses or seek
supplementary non-party submissions at the jurisdictional phase of its work. We hold this view
60
Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands
and the Republic of Bolivia (March 10, 1992).
61
See ICSID, List of Pending Cases, No. 16, available on the ICSID website, online:
http://www.worldbank.org/icsid/cases/pending.htm.
62
Tunari, “Petition of La Coordinadora para la Defensa del Agua y Vida, La Federacion Departamental
Cochabambina de Organizaciones Regantes, SEMAPA Sur, Friends of the Earth-Netherlands, Oscar Olivera,
Omar Fernandez, Father Luis Sanchez, and Congressman Jorge Alvarado to the Arbitral Tribunal” (August 29,
2002) at para. 3, available on the Earthjustice website, online:
http://www.earthjustice.org/regional/international/trade_documents/Bechtel.pdf.
DM_VAN/900287-00002/6400678.4
- 14 without in anyway [sic] prejudging the question of the extent of the Tribunal’s authority to call
witnesses or receive information from non-parties on its own initiative.63
The tribunal’s decision is not an outright rejection of amicus participation. Implicit in the
tribunal’s decision is an openness to consider the issue of amicus submissions afresh, should the
dispute move beyond the jurisdictional stage. Essentially, the petition failed on this aspect, not
because the tribunal did not recognize that the petitioners might be able to contribute a unique or
useful perspective, but because that perspective would not have contributed anything beyond the
positions of the disputing parties on the inherently legal issue of jurisdiction. Moreover, it
emerges from the tribunal’s reasoning that, absent party consent, future amicus submissions
could only be in the form of written briefs.
(d)
Aguas Argentinas v. Argentine Republic
In Argentinas, the investor’s water services concession for the city and environs of Buenos Aires,
Argentina, was affected by Argentina’s emergency measures during the economic crisis of 20012002, leading to a claim for compensation under the French/Argentine BIT.64 Several Argentine
NGOs submitted a “Petition for Transparency and Participation as Amicus Curiae” to the arbitral
tribunal established under the ICSID Convention requesting:
(a)
access to the hearings;
(b)
opportunity to present legal arguments as amicus curiae; and
(c)
timely, sufficient and unrestricted access to all documents.65
In what was the first decision under the ICSID Convention, the tribunal concluded that it had the
authority to receive amicus briefs, developed a procedure and conditions for consideration of
amicus requests, and invited the petitioners to apply for leave to make amicus submissions. In
light of the clear language of the ICSID Arbitration Rules and the lack of consent from the
parties, the tribunal denied access to the hearings66, whereas the decision on access to documents
was deferred until after a successful leave application.67
Taking an approach that mirrored the reasoning of the WTO Appellate Body, the Argentinas
tribunal first observed that neither the ICSID Convention nor the ICSID Arbitration Rules
specifically addressed, one way or the other, amicus submissions, identified the question of
63
The letter of the Tunari tribunal is available on the Earth Justice website, online:
http://www.earthjustice.org/news/documents/2-03/ICSIDResponse.pdf.
64
Accord entre le Gouvernement de la République française et le Gouvernement de la République argentine sur
l'encouragement et la protection réciproque des investissements (3 July 1997), available on the website of the
Government of France, online: http://www.legifrance.gouv.fr/WAspad/UnTexteDeJorf?numjo=MAEJ9330021D
65
Argentinas Order at para. 1.
66
Argentinas Order at paras. 4-8. Rule 32(2) of the ICSID Arbitration Rules sets forth:
The Tribunal shall decide, with the consent of the parties, which other persons besides the parties, their agents,
counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal may attend the
hearings.
67
Argentinas Order at paras. 30-32.
DM_VAN/900287-00002/6400678.4
- 15 admission as a matter of procedure and based its authority to receive such submissions on the
tribunal’s residual procedural powers established by Article 44 of the ICSID Convention.68 In
exercising this power, the tribunal proceeded to develop three conditions for the admission of
amicus briefs so as to minimize any additional burden on the disputing parties:
(a)
appropriateness of the subject matter of the case;
(b)
suitability of specific non-parties to act as amicus curiae, and
(c)
procedure for submission and consideration of amicus briefs.69
On the first condition, the tribunal held that amicus participation was appropriate where issues of
public interest were involved and persons beyond the parties to the dispute would be potentially
directly or indirectly affected. Noting that all BIT arbitrations involved issues of public interest,
the present dispute was of “particular public interest” because it raised public and international
law issues, including human rights considerations affecting the way in which water and sewage
services will be delivered to millions of people.70 At the core of the tribunals argument are the
following considerations:
21. Given the public interest in the subject matter of this case, it is possible that appropriate
nonparties may be able to afford the Tribunal perspectives, arguments and expertise that will help
it arrive at a correct decision. Rather than to reject offers of such assistance peremptorily, the
Tribunal, while taking care to preserve the procedural and substantive rights of the disputing
parties and the orderly and efficient conduct of the arbitration, believes it appropriate to consider
carefully whether to accept or reject such offers.
22. The acceptance of amicus submissions would have the additional desirable consequence of
increasing the transparency of investor-state arbitration. Public acceptance of the legitimacy of
international arbitral processes, particularly when they involve states and matters of public
interest, is strengthened by increased openness and increased knowledge as to how these processes
function. … Through the participation of appropriate representatives of civil society in
appropriate cases, the public will gain increased understanding of ICSID processes.71
In order to assess the suitability of a non-party as amicus – the second condition, the Argentinas
tribunal required at least the following information in a petition for leave:
(a)
identity and background of the petitioner, nature of it is membership and nature of
any relationships with the parties to the dispute;
(b)
nature of the petitioner’s interest in the case;
68
Argentinas Order at paras. 9-16; Article 44 of the ICSID Convention stipulates:
Any arbitration proceeding shall be conducted in accordance with the provisions of this Section and, except as
the parties otherwise agree, in accordance with the Arbitration Rules in effect on the date on which the parties
consented to arbitration. If any question of procedure arises which is not covered by this Section or the
Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question.
69
Argentinas Order at paras. 17-29.
70
Argentinas Order at para .19.
71
Argentinas Order at paras. 21-22.
DM_VAN/900287-00002/6400678.4
- 16 (c)
whether the petitioner has received financial or other material support from any of
the parties or person connected with the parties in the case;
(d)
reasons why the tribunal should accept the petitioner’s brief.72
The decision whether to grant leave would then consider the information provided by the
petitioner, the views of the disputing parties, the additional burden on the parties and the
likelihood of assistance to be derived from the amicus submissions.73 Finally, with regard to the
procedure for amicus briefs, the tribunal stressed that its object would be “to enable an approved
amicus curiae to present its view and at the same time protect the substantive and procedural
rights of the parties” as well as procedural efficiency.74
3.
State or “Legislative” Responses
Within NAFTA, the Methanex and UPS decisions on amicus curiae participation produced a
political reaction, reinforcing the direction taken by the tribunals. At the same time, some
countries now bring issues of amicus intervention and transparency to the negotiating table for
new BITs. And finally, ICSID, the main institution for investment arbitrations, has initiated
discussions about procedural reforms.
For NAFTA, the Free Trade Commission, a body comprised of cabinet-level representatives of
the three Parties and responsible for supervising the implementation and elaboration of the treaty,
as well as for resolving dispute over its construction or application,75 issued a “Statement on
Non-Disputing Party Participation” on October 7, 2003.76 The Statement expresses the view of
the three NAFTA Parties that “[n]o provision of the North American Free Trade Agreement …
limits a Tribunal’s discretion to accept written submissions from a person or entity that is not a
disputing party” and continues to recommend a detailed procedure for the admission of amicus
or “non-disputing party” submissions.
In short, the procedure requires an interested non-disputing party to file an application for leave
with a tribunal, identifying:
(1) The applicant in terms of legal status, objectives, activities and affiliations;
(2) The nature of the public interest and its own interest in the arbitration;
(3) The specific factual or legal issues of interest to the applicant; and
(4) Its perspective, particular knowledge or insight different from the disputing parties.
72
Argentinas Order at para. 25.
Argentinas Order at para. 27.
74
Argentinas Order at para. 29.
75
Article 2001 NAFTA.
76
NAFTA Free Trade Commission, “Statement of the Free Trade Commission on non-disputing party participation”
(7 October 2003), Department of Foreign Affairs and International Trade, online: http://www.dfaitmaeci.gc.ca/nafta-alena/Nondisputing-en.pdf.
73
DM_VAN/900287-00002/6400678.4
- 17 The application must also include the amicus’s main submission. The tribunal will give the
disputing parties an opportunity for comment before deciding the leave application. In its
decision, the tribunal will ensure that the non-disputing party submission does not disrupt the
proceedings or create an unfair burden or prejudice for one of the parties to the dispute. Should
the tribunal grant leave, the Parties are invited to respond to the substance of the submission.
The tribunal may or may not rely on the amicus submission, and the amicus has no right to be
heard with subsequent submissions.
Several observations are appropriate: First, the amicus procedure is conducted in writing; oral
submissions or attendance at hearings is not envisioned. Second, the Statement clearly
recognizes the non-party status and the lack of entitlement of amici, and thus the discretionary
powers of a tribunal. Further, although the Statement is not binding on a tribunal established
under NAFTA, it will carry considerable persuasive weight in the application of NAFTA’s
investor-state dispute resolution provisions. Finally, the Statement is limited in application to the
provisions of NAFTA. It is at least arguable that a tribunal, applying the ICSID Convention, the
Additional Facility Rules, and the UNCITRAL Arbitration Rules,77 must still find that it has the
authority to allow amicus participation.
The opening of NAFTA has spurred similar trends in the area of BITs. UNCTAD recently
observed that a new generation of BITs is emerging, which offers significant innovations in
investor-state dispute settlement in the sense that “[g]reater and substantial transparency in
arbitral proceedings, including open hearings, publication of related legal documents, and the
possibility for representatives of civil society to submit “amici curiae” to arbitral tribunals is
foreseen.”78
The United States and Canada are prime movers of this development. For example, the United
States Model BIT of 2004 stipulates in Article 28(3):
The tribunal shall have the authority to accept and consider amicus curiae submissions from a
person or entity that is not a disputing party.79
The provision is finding its way into BITs and free trade agreements now negotiated by the
United States.80 Canada, in its 2003 Model FIPA, has chosen to regulate the role of amici curiae
in considerable detail.81
77
Taking due consideration of the decisions in Methanex and UPS.
UNCTAD, “Recent developments in international investment agreements”, Research Note (30 August 2005) at 5,
available online: http://unctad.org.
79
United States of America 2004 Model BIT, available at the website of the U.S. Trade Representative, online:
http://www.ustr.gov.
80
See, for example, Article 10.19 (3) of the United States Morocco Free Trade Agreement, signed on 16 June 2004;
or Article 10.20(3) of the Dominican Republic-Central America-United States Free Trade Agreement, signed on
5 August 2004; both available at the website of the U.S. Trade Representative, online: http://www.ustr.gov.
81
See Article 39 in Appendix 2 to this paper. See also Article 38 of Canada’s Model FIPA, which makes provision
for public access to hearings and documents. Canada’s Model FIPA is available from the Department of Foreign
Affairs and International Trade, online: http://www.dfait-maeci.gc.ca.
78
DM_VAN/900287-00002/6400678.4
- 18 The provision has yet to be included in a negotiated treaty. Following the tides of the time,
ICSID is also considering improvements to its arbitration procedures, which would include a
more flexible approach to leave for non-parties to participate in investor-state arbitrations.82
V.
Conclusions
The Swiss playwright Friedrich Dürrenmatt wrote: “What was once thought can never be
unthought.”83 Who would have thought only ten years ago that amicus curiae would move into
the sphere of investment treaty arbitrations? Today however, it appears that the friends of the
court are bound to stay for good. Tribunals under NAFTA and ICSID have asserted their
authority to admit amici in appropriate circumstances. However, it is important to note that this
form of participation is not equivalent to a right on the part of interested outside parties to
participate in the dispute resolution process. The role of amici is driven strictly by the perceived
potential benefits to be derived by the tribunal in attempting to achieve a just resolution of
investment disputes engaging public interests. As put by the Argentinas tribunal, the purpose of
amici participation is “to help the Tribunal arrive at a correct decision by providing it with
arguments, expertise and perspectives that the parties may not have provided.”84
As an effect of the prevalent arbitration rules, amicus intervention is limited to written briefs.
Further, tribunals have unanimously indicated that they do not expect issues of jurisdiction or
procedure to be meaningful areas of amicus participation. In other words, the role of amici
would be confined to the substantive portions of a dispute such as questions of fact, their
interplay with the law, or the broader policy considerations underlying a particular dispute.
However, it is also apparent that the test for the admission of amici will require further
refinement, in particular with regard to the classes of investor-state disputes for which amici
involvement is appropriate.
At this stage, it is also too early to tell whether and how amicus curiae submissions may make a
meaningful contribution to a tribunal’s decision-making process. To date, the only decided
dispute in which the tribunal received amicus briefs during the merits phase, is Methanex, a
decision on jurisdictional grounds.85 One thing, however, appears certain: the future will see
more petitions from concerned groups, and, eventually, more involvement of amici curiae.
More generally, it is doubtful whether the participation of amici alone represents a major
improvement of transparency, if transparency is the goal. The underlying theory seems to be that
82
See Possible Improvements of the Framework for ICSID Arbitration, ICSID Secretariat discussion paper
(October 22, 2004), online:
http://66.102.7.104/search?q=cache:N9ZQAVq33nMJ:www.worldbank.org/icsid/improvearb.pdf+ICSID+discussion+paper+framework&hl=en&start=2; see also Howard Mann, Aaron Cosbey, Luke
Peterson, Konrad von Moltke, “Comments on ICSID Discussion Paper, “Possible Improvements of the
Framework for ICSID Arbitration”” (December 2004), online:
http://www.iisd.org/pdf/2004/investment_icsid_response.pdf.
83
“Nichts kann rückgängig gemacht werden, was einmal gedacht wurde.” Die Physiker (1962).
84
Argentinas Order at para. 24.
85
Further, there appears to be no express indication in the Methanex Award how or to what extent the tribunal may
have relied on the amicus submissions in its alternative consideration of the merits.
DM_VAN/900287-00002/6400678.4
- 19 NGOs or individuals that intervene as friends of a tribunal will function as “multipliers” in civil
society, so as to improve the general understanding of international investment protection and its
dispute resolution processes. However, this objective will only be achieved if the potential amici
find the process to be meaningful. One way recognized by tribunals in which participation
would become more meaningful is to grant the amici access to at least the major pleadings and
procedural documents, giving the intervenors an understanding of the nature of the dispute, and
thus an opportunity for more directed and efficient submissions. Such access may be subject to
undertakings or orders so as to address any confidentiality concerns of the parties. In this
respect, it must not be forgotten that, despite the openness shown by tribunals towards the idea of
amicus participation, arbitrators are bound by the arbitration rules governing the proceeding.
What this means is that improvements in transparency must originate with the states negotiating
BITs and similar agreements. The experience under NAFTA has shown that investors, after
some initial reluctance, have accepted the concept of transparency and shown a willingness to
open proceedings to the public, debunking to some extent the myth nurtured in certain circles of
corporations as the eternal bad guys. The point is that it is not just investors who rely on the
privacy and confidentiality of the arbitration process. The movement towards transparency of
which amici curiae are one example is primarily regional and closely tied to the political system
or culture of the host state and the investor’s home state. Ostensibly, many states still do not
appear comfortable with the notion of public scrutiny in investment disputes, and perhaps for
good reasons. Increased transparency beyond the present level of amicus participation would
have the potential to open the back door to the kinds of political pressures that investor-state
arbitration was originally designed to avoid.
If states are serious about changing the way in which investor-state arbitrations are conducted,
changes should be systemic. It may be time to resurrect the multilateral approach to investment
protection with a uniform system of public participation that has been lying dormant for the last
five years.
DM_VAN/900287-00002/6400678.4
- 20 APPENDIX 1
Statement of the Free Trade Commission on non-disputing party participation
A.
Non-disputing party participation
2.
No provision of the North American Free Trade Agreement (“NAFTA”) limits a
Tribunal’s discretion to accept written submissions from a person or entity that is not a
disputing party (a “non-disputing party”).
3.
Nothing in this statement by the Free Trade Commission (“the FTC”) prejudices the
rights of NAFTA Parties under Article 1128 of the NAFTA.
4.
Considering that written submissions by non-disputing parties in arbitrations under
Section B of Chapter 11 of NAFTA may affect the operation of the Chapter, and in the
interests of fairness and the orderly conduct of arbitrations under Chapter 11, the FTC
recommends that Chapter 11 Tribunals adopt the following procedures with respect to
such submissions.
B.
Procedures
1.
Any non-disputing party that is a person of a Party, or that has a significant presence in
the territory of a Party, that wishes to file a written submission with the Tribunal (the
“applicant”) will apply for leave from the Tribunal to file such a submission. The
applicant will attach the submission to the application.
2.
The application for leave to file a non-disputing party submission will:
(a)
be made in writing, dated and signed by the person filing the application, and
include the address and other contact details of the applicant;
(b)
be no longer than 5 typed pages;
(c)
describe the applicant, including, where relevant, its membership and legal status
(e.g., company, trade association or other non-governmental organization), its
general objectives, the nature of its activities, and any parent organization
(including any organization that directly or indirectly controls the applicant);
(d)
disclose whether or not the applicant has any affiliation, direct or indirect, with
any disputing party;
(e)
identify any government, person or organization that has provided any financial or
other assistance in preparing the submission;
(f)
specify the nature of the interest that the applicant has in the arbitration;
(g)
identify the specific issues of fact or law in the arbitration that the applicant has
addressed in its written submission;
DM_VAN/900287-00002/6400678.4
- 21 -
3.
(h)
explain, by reference to the factors specified in paragraph 6, why the Tribunal
should accept the submission; and
(i)
be made in a language of the arbitration.
The submission filed by a non-disputing party will:
(a)
be dated and signed by the person filing the submission;
(b)
be concise, and in no case longer than 20 typed pages, including any appendices;
(c)
set out a precise statement supporting the applicant’s position on the issues; and
(d)
only address matters within the scope of the dispute.
4.
The application for leave to file a non-disputing party submission and the submission will
be served on all disputing parties and the Tribunal.
5.
The Tribunal will set an appropriate date by which the disputing parties may comment on
the application for leave to file a non-disputing party submission.
6.
In determining whether to grant leave to file a non-disputing party submission, the
Tribunal will consider, among other things, the extent to which:
7.
8.
(a)
the non-disputing party submission would assist the Tribunal in the determination
of a factual or legal issue related to the arbitration by bringing a perspective,
particular knowledge or insight that is different from that of the disputing parties;
(b)
the non-disputing party submission would address matters within the scope of the
dispute;
(c)
the non-disputing party has a significant interest in the arbitration; and
(d)
there is a public interest in the subject-matter of the arbitration.
The Tribunal will ensure that:
(a)
any non-disputing party submission avoids disrupting the proceedings; and
(b)
neither disputing party is unduly burdened or unfairly prejudiced by such
submissions.
The Tribunal will render a decision on whether to grant leave to file a non-disputing party
submission. If leave to file a non-disputing party submission is granted, the Tribunal will
set an appropriate date by which the disputing parties may respond in writing to the nondisputing party submission. By that date, non-disputing NAFTA Parties may, pursuant to
Article 1128, address any issues of interpretation of the Agreement presented in the nondisputing party submission.
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- 22 9.
The granting of leave to file a non-disputing party submission does not require the
Tribunal to address that submission at any point in the arbitration. The granting of leave
to file a non-disputing party submission does not entitle the non-disputing party that filed
the submission to make further submissions in the arbitration.
10.
Access to documents by non-disputing parties that file applications under these
procedures will be governed by the FTC’s Note of July 31, 2001.
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- 23 APPENDIX 2
Article 39
Submissions by a Non-Disputing Party
1.
Any non-disputing party that is a person of a Party, or has a significant
presence in the territory of a Party, that wishes to file a written submission with a
Tribunal (the “applicant”) shall apply for leave from the Tribunal to file such a
submission, in accordance with Annex C.39. The applicant shall attach the
submission to the application.
2.
The applicant shall serve the application for leave to file a non-disputing
party submission and the submission on all disputing parties and the Tribunal.
3.
The Tribunal shall set an appropriate date for the disputing parties to
comment on the application for leave to file a non-disputing party submission.
4.
In determining whether to grant leave to file a non-disputing party
submission, the Tribunal shall consider, among other things, the extent to which:
(a)
the non-disputing party submission would assist the Tribunal in the
determination of a factual or legal issue related to the arbitration by bringing a
perspective, particular knowledge or insight that is different from that of the
disputing parties;
(b)
the non-disputing party submission would address a matter within the
scope of the dispute;
(c)
the non-disputing party has a significant interest in the arbitration; and
(d)
there is a public interest in the subject-matter of the arbitration.
5.
The Tribunal shall ensure that:
(a)
any non-disputing party submission does not disrupt the proceedings; and
(b)
neither disputing party is unduly burdened or unfairly prejudiced by such
submissions.
6.
The Tribunal shall decide whether to grant leave to file a non-disputing
party submission. If leave to file a non-disputing party submission is granted, the
Tribunal shall set an appropriate date for the disputing parties to respond in
writing to the non-disputing party submission. By that date, the non-disputing
Party may, pursuant to Article 34 (Participation by the Non-Disputing Party),
address any issues of interpretation of this Agreement presented in the nondisputing party submission.
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- 24 7.
The Tribunal that grants leave to file a non-disputing party submission is
not required to address the submission at any point in the arbitration, nor is the
non-disputing party that files the submission entitled to make further submissions
in the arbitration.
8.
Access to hearings and documents by non-disputing parties that file
applications under these procedures shall be governed by the provisions
pertaining to public access to hearings and documents under Article 38 (Public
Access to Hearings and Documents).
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