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On Amicus Curiae in the Investor-State Dispute Settlement Mechanism
Lingqiang Bu
China University of Political Science and Law,CHN
Abstract: The investor-state dispute settlement (ISDS) mechanism is one of the most important mechanisms to protect the interest of foreign investors and promote the capital flow around the world. However, the investor-state dispute settlement mechanism adopts the confidentiality and privacy principles, which make the arbitration proceedings lack openness and transparency. In order to make the awards of the investor-state arbitration more legitimate and acceptable and balance the interest of investors and public interest of the host state, the institution of amicus curiae has been introduced into the ISDS mechanism into the international investment arbitration procedure. This paper aims to figure out how to formalize and perfect the institution of amicus curiae in the ISDS mechanism by analyzing the regulations and practice of ICSID as an example, for ICSID is the most important forum to settle investor-state disputes till now.
Keywords: Amicus Curiae; ISDS; ICSID; Public Interest
The ISDS mechanism aims to protect the interest of foreign investors and promote the capital flow around the world. Different from the international commercial arbitration, the awards of the investor-state disputes can not only affect the interest of the disputing parties, but also have significant influence over the public of the host state. However, the investor-state dispute settlement mechanism adopts the confidentiality and privacy principles, which make the arbitration proceedings lack openness and transparency. With the increase of the number of investor-state investment disputes, these defects begin to be widely recognized by NGOs and other social groups, so they always request the reform of this mechanism in order to participate and express their concerns about the dispute in the arbitration, which may help to protect the public interest of the host state, such as environmental protection and public health.
As the number of international investment disputes increases significantly, more and more society groups and NGOs begin to petition the tribunal to participate in the dispute settlement procedure as amicus curiae in order to protect public interest such as environment protection and public health. In fact, “the amicus curiae submissions in investment treaty arbitration may be perceived as an effort by NGOs to further implementation of international environmental and human rights norms.” (Tomoko Ishikawa, 2010) In order to respond to the practice of amicus curiae and make the conduction of amicus curiae more consistently, ICSID has adopted the institution into its relevant legal instruments. In order to perfect the amicus curiae participation in the investor-state dispute settlement mechanism, there is a need to analyze the value and potential problems it may bring to the ISDS mechanism. This analysis can help to find how to improve the current amicus curiae practice, which will help the ICSID tribunals make an objective assessment of the maters of the dispute more efficiently.
1、Introduction of amicus curiae into the ICSID arbitrations
(1)The value of the amicus curiae participation in the investment arbitration
“Amicus Curiae” means “friend of the court”, Black’s Law Dictionary defines it as “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.”(Black’s Law Dictionary 2001)The institution of amicus curiae is quite valuable in international investment arbitration, just as Professor Lucas Bastin (2012) says “the weight of scholarship and jurisprudence supports the view that the transparency, legitimacy and accountability of the investor–state arbitration system benefit from the involvement of amici curiae.”
The participation of amicus curiae in the arbitration can supply professional knowledge and opinions to the tribunal, which can help cope with certain complicated questions. The judges of the tribunal are not always so familiar with the knowledge of every field, however, “since the choice of arbitrator is left to the discretion of the parties, there is no guarantee that the arbitrators will be well-acquainted with all the legal issues in an investment dispute.” (Daniel Barstow Magraw Jr. & Niranjali Manel Amerasinghe, 2009) On the other hand, NGOs are usually professional in certain fields and they can act as amicus curiae to supply valuable analysis information on certain issues to the tribunal. Since the tribunals entirely base on the information provided by the disputing parties to make decisions, so the factual information supplied by the amicus curiae may be essential for the tribunal to make an objective assessment of the dispute facts (Christian Schliemann, 2013). In a word, “amicus curiae briefs are essentially seen as beneficial to the court or tribunal since it would provide the court or tribunal with useful information and arguments other than those presented by the parties.” (Eric De Brabandere, 2011)
The institution of amicus curiae can help increase the democratic participation of the public, through which the legitimacy and accountability of the arbitration awards are increased. The investor-state dispute settlement mechanism results in a shift of power from the public to states, for it makes the investor-state disputes move from the public courts to the arbitral tribunals lacking of openness and transparency which makes it hard for the public hold the government accountable (Daniel Barstow Magraw Jr. & Niranjali Manel Amerasinghe, 2009). Different from the national judicial system, the investor-state dispute settlement mechanism excludes the external supervision and accordingly diminishes the justice and fairness of the awards of the tribunal. The compensation to the investors will be shared by the taxpayers of the host state and their normal life may be affected by the award, so they shall have a chance to supervise how their elected government protects the country’s interest before a tribunal and to express their opinions to the tribunal. What’s more, “amici curiae are an important legal institution that mediates in the broader competition between interest groups involved in public policy under the pressures of economic globalization” (Alberto R. Salazar, 2013), which not only helps fix the democratic defects of the investor-state dispute settlement mechanism but “will also contribute to improving the democratic nature of domestic law and policy making.” (Id.,)
The institution of amicus curiae can help to protect the public interests of the host states. The determining factor for amicus curiae to participate in the investment arbitration is the existence of public interest, which may not be demonstrated in the submissions of the disputing parties, and without consideration of public interest, the awards of the tribunal can not be viewed as just and legitimate (Yu Zhanmin, 2011). The interests represented by NGOs and other social groups is quite different from that of foreign investors’ commercial interests, therefore their written submissions are usually related to the protection of public interest of the host state. The amicus curiae can help to draw the tribunal’s attention on certain issues related to the public interest, which will lead the tribunal’s awards to be perceived as more legitimate and acceptable by the public at the same time.
(2)The potential problems of amicus curiae in ISDS mechanism
Just as the saying goes: “every coin has two sides”, so does the institution of amicus curiae. Some scholars worry that the institution of amicus curiae may violate the consensual nature of arbitration which means only the disputing parties have the right to decide whether third parties can participate in the dispute settlement procedure (Yu Zhanmin, 2011). Some scholars also worry that the reduction of party autonomy and loss of confidentiality and privacy of the arbitration process together will crack down the disputing parties’ positivity for the ISDS mechanism (Katia Fach Gómez, 2011). Someone further points out that the participation of amicus curiae will make the disputing parties lose their flexibility and informality in the arbitration proceedings by reducing their room for a compromise and an agreed settlement of the dispute (Vaughan Lowe, 2007). There is also a possibility that the disputing parties may use the mechanism of amicus curiae as a tool in the dispute (L. Yves Fortier, 2009), they may let some entities or persons who have some common interest to a disputing party act as amicus curiae in order to influence and create an imbalance in the arbitration (Katia Fach Gómez, 2011). Finally, the participation of amicus curiae in the investment arbitration may substantially increase the cost and the time for settling the disputes, which is contrary to the efficiency goal of the investor-state dispute settlement mechanism. Because every disputing party need time and litigation cost to respond these submissions, the tribunal also needs to spare certain time and attention on analyzing the amicus curiae submissions. What’s more, “one party to the dispute is likely to bear a greater proportion of the increased costs, thus introducing inequality between the parties (Lucas Bastin, 2012),” which may lead to unfairness between the investor and the host state. So there is a possibility that the institution of amicus curiae may diminish the attraction of the investor-state dispute settlement mechanism.
So the rules of amicus curiae in the ISDS mechanism of ICSID needs to be concretely designed to avoid the potential problems listed above. And the first essential issue of amicus curiae here is how to balance the amicus curiae participation and maintaining efficiency and attractiveness of the investor-state dispute settlement arbitration, and the second one is how to balance the interest of investors and the public interests of the host state through the proper amicus curiae participation in the ISDS mechanism.
2、Regulations of amicus curiae in the ICSID arbitrations
Before 2006, there were no regulations on amicus curiae in ICSID Convention, and ICSID Rules of Procedure for Arbitration Proceedings (Arbitration Rules). With the increase of the number of international investment disputes, the social groups and NGOs gradually noticed the significant influence of the awards of the tribunal, so the claims of increasing the transparency and public participation in the arbitration procedures were widely presented by the international civil society. The tribunals began to recognize the value of amicus curiae participation in improving legitimacy and justice of their awards, so the tribunals in two investment arbitrations (The two cases are: Suez, Sociedad General de Aguas de Barcelona, S.A.and Vivendi Universal, S.A. v. Argentine Republic, ICSID Case No. ARB/03/19; Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua S.A. v. The Argentine Republic, ICSID Case No. ARB/03/17) under the ICSID Convention had accepted and considered unsolicited amicus curiae submissions. In order to respond to the criticism of the public and the tribunals’ practice of amicus curiae and make the institution be conducted consistently and legally, the ICSID Secretariat began to study the possible amendments to Arbitration Rules, and the issue of amicus curiae was one of the most important issues.
(1)Possible Improvements of the Framework for ICSID Arbitration
On October 22nd, 2004, ICSID Secretariat issued a paper named ‘possible improvements of the framework for ICSID arbitration” in order to encourage discussion of possible amendments of the ICSID and Additional Facility Arbitration Rules, and to invite further suggestions regarding the reform of existing Arbitration Rules. This paper tries to answer the question of “whether ICSID arbitral proceedings could be made more accessible to third parties(ICSID Secretariat, 2004).” So in this paper, the Secretariat mainly talked about two questions on amicus curiae: firstly, whether the arbitration tribunal has the right to accept amicus curiae; secondly, whether the public shall have the right to attend hearings of the arbitration procedure.
The Secretariat believes that the introduction of the institution of amicus curiae into ICSID Arbitration Rules can strengthen the arbitration process and help to make a just and proper award, so it is necessary and rational to make clear that the tribunals be endowed the right to accept and consider amicus curiae submissions by amendments of ICSID Arbitration Rule 34 and Article 41 of the Additional Facility Arbitration Rules. The tribunals shall be endowed the discretionary rights to decide whether to accept the amicus curiae submissions or not in each case. The Secretariat proposed a wide scope of subjects who could act as amicus curiae in investment arbitrations, including civil society organizations, individuals, business groups and the other State parties to the treaties concerned. The Secretariat also proposed in this paper that in order to make the institution of amicus curiae more favorable to the investment arbitration, certain conditions of submitting amicus curiae shall be set. As to the question of whether the public have the right to attend the hearings of the arbitration procedure, the Secretariat proposed to amend ICSID Arbitration Rule 32(2) and Article 39(2) of the Additional Facility Arbitration Rules to endow the tribunal the discretionary rights to decide whether to allow the amicus curiae to do so, regardless of the consent of the disputing parties.
The proposals on amicus curiae by the ICSID Secretariat are widely welcomed by NGOs. For example, the International Institute of Sustainable Development points out that amicus curiae “can be a productive and useful part of promoting the transparency and legitimacy of any international process” (Howard Mann, Aaron Cosbey, Luke Peterson, Konrad von Moltke) and making the institution of amicus curiae clear in the ICSID Arbitration Rules is of great value. Although the proposals by the Secretariat are unshaped, it is the first time for ICSID to study the issue of acceptance of amicus curiae submissions. From then on, ICSID has paid much attention on the institution of amicus curiae, finally leading to the amendments to the contemporary ICSID Arbitration Rules.
After studying the received advice and suggestions, the Secretariat issued a new working paper named “Suggested Changes to the ICSID Rules and Regulations” in 2005, which conformed the proposals of last paper, and made more concrete suggestions to the amendments of amicus curiae in ICSID Arbitration Rules. Except the acceptance of amicus curiae submissions, the Secretariat also proposed the requirements which shall be applied to the petitions of amicus curiae, the requirements are: “(a) the non-disputing party submission would assist the Tribunal in the determination of a factual or legal issue related to the proceeding 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 proceeding.”(Working Paper of the ICSID Secretariat, 2005) The Secretariat also points out that the acceptance of amicus curiae submissions shouldn’t disrupt the proceedings and unduly increase the burden of either party. These practical suggestions make a very strong foundation for the introduction of amicus curiae into the ICSID Arbitration Conventions.
(2)ICSID Arbitration Rules 2006
After another round of seeking advice and suggestions, on April 4th, 2006, the new ICSID Arbitration Rules (2006) was issued, and it entered into force on April 10th, 2006. The introduction of the institution of amicus curiae is one of the most important amendments to the old Arbitration Rules. Arbitration Rules 2006 makes it clear that the investment tribunal has the right to decide whether to accept amicus curiae submissions or not, and it sets several requirements which shall be satisfied by the amicus curiae submissions. Another important innovation is that the tribunal has the right to allow the public to participate in the hearings when no disputing parties object.
The first part of Rule 37(2) of Arbitration Rules 2006 reads “After consulting both parties, the Tribunal may allow a person or entity that is not a party to the dispute (in this Rule called the “non-disputing party”) to file a written submission with the Tribunal regarding a matter within the scope of the dispute.” According to this article, the tribunal is clearly endowed the right to accept amicus curiae submissions. However, before allowing the amicus curiae to file a written submission, the tribunal shall consult with the disputing parties, but the opinions of the disputing parties have no effect on the tribunal’s right to decide whether to accept a certain amicus curiae submission, in other words, the consents of the disputing parties are no longer preconditions of accepting amicus curiae submissions. This article allows both individuals and entities to act as amicus curiae, but the scope of entities is not very clear. For example, whether the entities are limited to civil society groups such as NGOs, or States, international organizations and other business groups can also be included is not clear. The participation of amicus curiae is limited to making written submissions, and they are not allowed to make oral submissions to the tribunal. This part also indicates a requirement of the amicus curiae submissions, namely the content of the amicus curiae submissions shall be limited within the scope of the dispute. But how to define the scope of the dispute remains an unsolved question. For example, whether amicus curiae can make submissions on procedural issues such as jurisdictional issues of the dispute or the submissions shall only deal with the substantial issues?
In order to make the institution of amicus curiae more favorable to ICSID arbitration and to increase the quality of submissions, Rule 37(2) sets certain requirements for the tribunal to consider when it decides whether to accept the amicus curiae submissions. The second part of Rule 37(2) reads “In determining whether to allow such a filing, 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 proceeding 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 proceeding.” In fact, this article put certain obligations on the tribunal, through applying these requirements to assess the petitions, the qualities of amicus curiae submissions can be guaranteed to a certain extent. It shall be pointed out that the new ICSID Arbitration Rules doesn’t require the tribunals to check whether there is a public interest in the subject-matter of the arbitration. On the other hand, the existence of public interest in investment arbitration is the main factor which supports the introduction of amicus curiae into the investor-state dispute settlement mechanism, so it seems strange to exclude public interest out of the requirements and this issue will be studied further according to the tribunal’s practice in Chapter Three. The amicus curiae shall supply perspectives, knowledge or insights which can assist the tribunal to cope with certain issues within the scope of the dispute. So when a person or entity applies for leave to file amicus curiae submissions, he shall demonstrate his expertise, knowledge background or experience in order to persuade the tribunal that he is able to supply useful information to the tribunal. The amicus curiae submissions can supply information on not only factual issues but also on legal issues of the dispute. What’s more, the information supplied by the amicus curiae shall be different from that of the disputing parties, however, the new ICSID Arbitration Rules doesn’t provide the public’s right to access to relevant documents of the arbitration. Without access to relevant documents, especially the submissions of the disputing parties, the amicus curiae can not make sure whether the content of their submissions has been already contained or not by that of the disputing parties. If the submissions of the disputing parties have already contained the same content, then the amicus curiae submissions seem to be meaningless and can not be accepted by the tribunal, accordingly this constitute a waste of time and resources. Even the content is different from that of the disputing parties, the quality of amicus curiae submissions can not be guaranteed. So it is necessary for the public to access the relevant documents of the arbitration, which is a major issue we will discuss in chapter four. It requires that the amicus curiae shall have significant interest in the dispute, which can also help guarantee the quality of their submissions. Because if the person or entity doesn’t have significant interest in the dispute, usually they do not have enough motivation to investigate the dispute and gather information, accordingly their submissions usually can not supply valuable perspectives or insights to the tribunal. On the other hand, if the amicus curiae will be influenced essentially by the awards of the tribunal, they usually have enough motivation to improve the quality of the submissions in order to influence the tribunal to pay attention on the protection of their interest. In fact, this requirement tends to limit the subjects of amicus curiae, which can help prevent the tribunal from being submersed by numerous unsolicited submissions. However it doesn’t give a clear definition of significant interest in this rule, how to decide whether the amicus curiae have such interest in the dispute is left to the discretionary rights of the tribunals.
The last part of Rule 37(2) reads “The Tribunal shall ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party, and that both parties are given an opportunity to present their observations on the non-disputing party submission.” This rule requests the tribunal to balance the acceptance of amicus curiae submissions and the increase of cost, delay for arbitration caused by these submissions. Because amicus curiae submissions usually contain new opinions and information to the dispute, if the disputing parties are not given the opportunity to respond to them, it is unfair, especially when the written submissions supports a particular disputing party. Acceptance of amicus curiae submissions will definitely increase the litigation cost of disputing parties and delay the arbitration proceedings to an extent. So, this article endows the tribunal discretionary rights to limit the cost and delay caused by the amicus curiae submissions.
As to the question of whether the amicus curiae can attend hearings, during the discussions of the new amendments to Arbitration Rules, it was proposed that the tribunal should be endowed the discretionary rights to allow the public to attend hearings and the disputing parties should have no rights to object. However, the recent amendments didn’t go so far, Rule 32(2) of Arbitration Rules 2006 reads “Unless either party objects, the Tribunal, after consultation with the Secretary-General, may allow other persons, besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal, to attend or observe all or part of the hearings, subject to appropriate logistical arrangements. The Tribunal shall for such cases establish procedures for the protection of proprietary or privileged information.” In other words, explicit consent of the disputing parties is not a precondition any more, but each disputing party still maintains a veto right to prohibit the amicus curiae from attending hearings. In practice, it is obvious that the foreign investor prefers to protect its commercial secret and commercial reputation, so usually it uses its veto right to deny the openness of hearings. This rule can not play a positive role in practice.
In summary, ICSID Arbitration Rules 2006 provides a general framework of the conduction of the institution of amicus curiae, and it makes clear the tribunal has the right to accept amicus curiae submissions. There are two obvious characteristics of amicus curiae according to Arbitration Rules 2006: Firstly, the discretionary rights on amicus curiae submissions endowed to the tribunal are a symbol of the affirmation of the tribunal’s decision-making power on procedural issues (Shiyan, 2012). Secondly, amicus curiae are non-disputing third parties, and they can not add or diminish the rights or obligations of the disputing parties. The content of their submissions shall be limited to the scope of the dispute, and the submissions shall satisfy certain conditions before being accepted by the tribunals. But several issues are still not clear, such as the procedure by which the written submissions shall be submitted and the exact meaning of each requirement of the written submissions. These details can be supplemented by the tribunals case by case, but the problem is that the ICSID doesn’t follow precedes, so different tribunals may make conflicting decisions on the same issue. The best way is to add these details into the ICSID Arbitration Rules according to the practice of the tribunals in the future. Lastly, the new ICSID Arbitration Rules doesn’t provide anything about the amicus curiae’s rights to access the documents submitted to or issued by the tribunals. Without the access to certain information by the amicus curiae, the quality of submissions can not be guaranteed, so this issue shall be included in the next round of reforms to the ICSID Arbitration Rules.
3、The practice of amicus curiae in ICSID arbitrations
(1)Biwater Gauff v. Tanzania
Biwater Gauff v. Tanzania(ICSID Case No. ARB/05/22) case is the first case of ICSID in which the tribunal applied the new ICSID Arbitration Rules to accept amicus curiae submissions in the arbitration. This dispute arose from the cancellation of a contract between the two disputing parties, and this contract was about the service of water supply. During the arbitration, the Secretariat of ICSID received five petitions for amicus curiae status, and these petitions were respectively from (Biwater v. Tanzania, ICSID Case No.ARB/05/22, Procedural Order Number 5, para.11): The Lawyers' Environmental Action Team (LEAT) whose missions is to “ensure sound natural resource management and environmental protection in Tanzania, thereby ensuring that the constitutional and environmental rights of the Tanzanian people are secured and realized by all”; The Legal and Human Rights Centre (LHRC) whose missions is to “contribute to the process of democratization in Tanzania due to the realization that the majority of the people are unaware of their rights, and most importantly for the indigent who has no means to pursue his or her rights in court for want of legal representation.”; The Tanzania Gender Networking Programme (TGNP) whose mission is to “focus on the practical promotion and application of gender equality and equity objectives”; The Center for International Environmental Law (CIEL) whose mission is to “use international law, institutions and processes to protect the environment, human health and human rights, seeking to create a just and sustainable world”; and The International Institute for Sustainable Development (IISD) whose mission is “to foster local, regional and international policies and practices in support of the achievement of sustainable development.” The petitioners requested to make written submissions, attend hearings of the arbitration and access the documents submitted to or released by the tribunal. They claimed that there were a lot of issues of vital concern to the local community in Tanzania and to the sustainable development of the international community; that the dispute didn’t remain as commercial or private conflict, because the arbitration award would have substantial influence on the population's ability to enjoy basic human rights, such as the rights to clean water; and that since their mandate is focused on natural resource and human rights in their day-to-day work, so they had enough expertise to solve certain issues within the dispute and they were qualified to act as amicus curiae in this arbitration, and had significant interest in the arbitration.
Relied on the new revised ICSID Arbitration Rules 206, the tribunal made its final decisions on these petitions. The tribunal pointed out that Rule 37(2) of Arbitration Rules 2006 endowed the tribunal the discretionary right to accept the amicus curiae submissions, and the permission of petition as amicus curiae didn’t mean endowing the amici the procedural rights or privilege of the disputing parties in the arbitration, and they are just offered “a specific and defined opportunity to make a particular submission.” (Id., para.46) The tribunal relied on the requirements of amicus curiae submissions listed in rule 37(2) of ICSID Arbitration Rules to assess the permission of petitions mentioned above. After reviewing the petitions and the nature and expertise of the petitioners, the tribunal believed that the amicus curiae submissions could assist the tribunal to make a proper decision, and contribute to the acceptance of its decisions on the dispute. The tribunal “(a) considers that a written submission by the Petitioners appears to have the reasonable potential to assist the Arbitral Tribunal by bringing a perspective, particular knowledge or insight that is different from that of the disputing patties; (b) accepts the Petitioners indication that their submissions would address matters within the scope of the dispute, and obviously reserves the right to disregard any submission that does not do so; (c) accepts that each of the Petitioners has a sufficient interest in this proceeding.” (Id., para.50) In fact, the tribunal followed the reasoning of the Methanex tribunal on the issue of public interest, believing that this investment dispute was different from usual commercial dispute between private parties for one party to this dispute was a state, and the subject matter of the dispute related to public interest, for this case was related to water supply system of Tanzania and the decision of the tribunal would influence a wide scope of people’s rights to water. The tribunal further pointed out that even without the public interest related to the human rights to clean water, the acceptance of amicus curiae amicus curiae submissions will not unduly burden the parties, and the increase of cost was not sufficient to deny the amicus curiae submissions in this case. So the tribunal decided to accept the amicus curiae submissions. Because of the objection of the claimant in this dispute according to Rule 32(2) of ICSID Arbitration Rues, the tribunal declined the requests of the petitioners to attend hearing, but it reserved the right to ask amicus curiae questions about their submissions and request further submissions or doucuments before or after the hearing. As to the issue of access to documents, the tribunal pointed out that the petitioners in this case only focused on the broad issues which they were very familiar with, and Procedural Order No.3 obliged the tribunal to impose certain limitations on disclosure of documents in order to preserve the integrity of the process for the time being, so it rejected the request.
In summary, from the decisions of the tribunal in this case, it is clear that in order to justify its acceptance of amicus curiae submissions, the tribunal pays much attention on the analysis of the existence of public interest in this case. Since, this is the first case after the introduction of amicus curiae into ICSID Arbitration Rules, and the new Rules do not provide public interest in the requirements of amicus curiae submissions, so in effect, this case introduces the requirement of public interest into the requirements which shall be applied to decide whether certain amicus curiae submissions can be accepted or not. It can been seen in the following cases under ICSID, the tribunals always apply the requirement of public interest to assess the acceptance of certain amicus curiae submissions in practice. Finally, the tribunal defined the role of amicus curiae just as an assistant to the tribunal, and their participation is not based on rights.
(2)Bernhard von Pezold & Others v Republic of Zimbabwe and Border Timbers Limited & Others v Zimbabwe
This is a joint arbitration of two disputes, and the disputes arose from breaches of applicable BITs resulting from Zimbabwe's conduct in relation to the forestry and timber processing industry. On 23 May 2012, the European Center for Constitutional and Human Rights (“ECCHR”) and four indigenous communities of Zimbabwe (the “indigenous communities”) petitioned the tribunal to request: (1) leave to file written submissions; (2) access to relevant documents; and (3) permission to attend the hearing and respond to questions posited by the tribunals.
The tribunal rejected all the requests of the petitioners by claiming that all the submissions didn’t satisfy the criteria set in Rule 37(2) of ICSID Arbitration Rules: Firstly, the tribunal pointed out the Rule 37(2)(a) of ICSID Arbitration Rules which demands the amicus curiae shall supply different legal or factual perspectives, knowledge or insights from the disputing parties implicitly requires that the amicus curiae shall be independent from the disputing parties, and they shall play a neutral role in the arbitration. In order to justify its reasoning, the tribunal pointed out that the Suez/ Integrales Case tribunal also required the independence of the amicus curiae, for it stated in its decisions: “the Tribunal will therefore only accept amicus submissions from persons who establish to the Tribunal’s satisfaction that they have the expertise, experience, and independence to be of assistance in this case.” (Aguas Provinciales de Santa Fe S.A., Suez, Sociedad General de Aguas de Barcelona S.A., and Inter Aguas Servicios Integrales del Agua S.A. v. The Argentine Republic, ICSID Case No. ARB/03/17, Order in Response to a Petition for Participation as Amicus Curiae, 17 March 2006, para.23) The tribunal noticed that the indigenous communities appear to lay claim over the land which the Claimant claimed full rights, so they are in serious conflict of the primary position of the Claimant in this arbitration; and the Respondent had the power to appoint or dismiss the chiefs of these indigenous communities. Based on these reasons, the tribunal was convinced that the petitioners were not independent or neutral in this arbitration, which made the tribunal reject all their petitions. In addition, the tribunal pointed out the petitioners didn’t satisfy any criteria set in Article 37(2) of ICSID Arbitration Rules.
Secondly, the petitioners proposed to make submissions on the putative rights of the indigenous communities under international human rights law, and they failed to prove that without consideration of international human rights norms, the decisions of the tribunal would be legally uncompleted. So the tribunal claimed that their proposed submissions were outside of the scope of the dispute, and they couldn’t supply useful factual or legal information to assist the tribunal in its decisions.
Thirdly, as to the requirement of “significant interest”, the tribunal noted that the petitioner ECCHR mainly focused on the protection of human rights against the corporation, which had nothing to do with this arbitration, so the tribunal concluded that ECCHR didn’t have significant interest in this proceeding. Although the indigenous communities had some interest in the land over which the Claimant claimed full rights, however, they were not independent which made their submissions unfairly prejudice the Claimants. Finally, the tribunal rejected the petitioners’ request to attend hearings and to access to documents, according to Rule 37(2) of ICSID Arbitration Rules.
In summary, although the tribunal doesn’t discuss the issue of public interest in its decision, the most important contribution by this tribunal is that it draws the requirement of independence on the amicus curiae. Through its reasoning, the meaning of independence means that the petitioners shouldn’t be under the control of either party of the arbitration, and they shall not be unfairly discriminatory on one particular disputing party. The requirement of independence is quite important in guaranteeing the quality of the submissions and the fair conduction of the arbitration. As to significant interest, the tribunal tends to believe that the rights under general international human rights are not enough to satisfy this requirement, the petitioners must demonstrate its expertise, interests which is closely and directly related to the arbitration. It is worth noticing that the subjects of amicus curiae are all NGOs, and their mandates are focused on the protection of environment, sustainable development and human rights. This seems to indicate that the amicus curiae shall represent the public interests of the local people.
4、Proposals on the rules of amicus curiae in the ISDS mechanism
The relevant legal instruments and the investment arbitration practice have successfully introduced the institution of amicus curiae into the ISDS mechanism of ICSID. However, the cases show us that the amicus curiae participation in the ISDS arbitration is usually limited to filing written submissions. Just as one author says “the role of amici curiae, as currently defined by tribunals, is thus defined by a willingness to give them a voice and an unwillingness to allow anything more than minimal disruption to the arbitration and minimal additional cost to the parties.” (Lucas Bastin, 2012) So the amicus curiae participation is quite limited in the ISDS mechanism by now. What’s more, the arbitration practice also demonstrates that the institution of amicus curiae is arbitrary and not formalized and the issue of how to balance the amicus curiae intervention and maintain the essential nature of arbitration hasn’t been well settled. Based on the analysis of regulations of ICSID Arbitration Rules and the analysis of cases under ICSID where amicus curiae submissions are involved, this paper tries to put forward certain suggestions in order to formalize and perfect the institution of amicus curiae in the investment arbitration.
(1)The requirements of amicus curiae submissions
In practice, different tribunals may apply similar criteria to assess whether the potential amicus curiae submissions should be admitted or not. These essential factors generally consist of: assistance, public interest, significant interest, within the scope of the dispute and independence. In fact, these requirements act as a screening mechanism, which can help exclude the low-quality submissions. Although the investment arbitration awards do not have precedent effects, the succeeding tribunals usually refer to the existing decisions of other tribunals on the question of amicus curiae in order to keep consistent with the general practice and in order to make their decisions not look like arbitrary. It doesn’t mean all the tribunals’ requirements of amicus curiae submissions are the same. In fact, different tribunals give different opinions on certain aspects of these requirements as showed by the cases we have analyzed. So, the major task before us is to formalize the requirements of the amicus curiae submissions.
As to the requirement of “assist the tribunal”, the amicus curiae shall be able to supply professional perspectives, insights or knowledge, which are different from that of the disputing parties, on legal or factual issues arising from the dispute. In fact this is also the first requirement of the amicus curiae submissions in the US domestic law: “an amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored. ” (Rules of the Supreme Court of the United States (2013), Rule 37 Brief for an Amicus Curiae (1)) In investment arbitration, the petitioners need to prove it has certain expertise, knowledge or experience which can help to solve certain issues in the dispute. As to NGOs, this requirement is usually closely related to the mandate of them, if their missions have nothing to do with the issues arising from the dispute, their petitions can not be granted. On the other hand, the amicus curiae submissions should not repeat the content of the submissions of the disputing parties, which means they shall supply new information or perspectives to the tribunal. In order to guarantee that the tribunal can evaluate the dispute from all angles, this requirement shall be interpreted widely, but the amicus curiae shall prove it has a minimum expertise on certain issues of the dispute.
The existence of public interest in the investor-state dispute is the most important factor which supports the introduction of amicus curiae into the international investment arbitration. Mere proof of the private interest in the dispute are usually not sufficient to enable the amicus curiae to participate in the arbitration, the amicus curiae shall specify the clear public interest issues which he intends to solve in its submissions (Andrew Newcombe & Axelle Lemaire, 2001). In practice, every investment arbitration tribunal pays much attention on the analysis of the existence of public interest when it reviews the petitions of NGOs or other organizations to participate as amicus curiae in the dispute as showed by this chapter. However, how to define public interest in investment arbitration is still not very clear. Generally, the public interest which is involved in the investor-state dispute settlement mechanism usually consists of the following parts: because the host sate represents its people in the investment arbitration, so the local people have interest in the dispute; if the host state loses the case, the compensation to the investors by the host state comes from the national treasury, which will be shared by the taxpayers of the host state; the subject matter of the dispute is related to the host state’s administrative behavior which aims to protect public interest and from which the dispute arises or the awards of the arbitration can influence the host state’s legislative activities on public interest affairs in the future. From the analysis of the international investment arbitrations, it can be seen that the first and the second categories of public interest can not justify the participation of amicus curiae in the dispute. This paper suggests that when the tribunal decides whether there is public interest involved in the dispute, it shall consider whether the accused administrative measures taken by the host state are related to the protection of certain public interest such as environmental protection and whether the awards of this case will influence the host state’s legislative power on protection of certain public affairs in the future. It shall be pointed out that many kinds of public interest may be involved in one dispute, so the term of “public interest” shall be interpreted widely, the public interest “can either be general and related to human rights or environmental issues, or relatively specific or sectoral, such as the representation of the rights of a particular social group affected by the tribunal's or court's decision and otherwise having no access to the proceedings.” (Eric De Brabandere, 2011) If the mentioned public interest is deemed significant in the dispute and the petitioners aim to solve the related legal or factual issues of this public interest in their submissions, then the proposed amicus curiae submissions can satisfy this requirement.
As to the requirement of significant interest of the amicus curiae in the dispute, the petitioners must prove exactly how their rights are directly or indirectly influenced by the decisions of the tribunal. For the non-local actors, such as some international NGOs, their significant interest was demonstrated on an abstract level, which means whether the dispute is related to their mandate, such as environment protection. As to the local actors, usually their significant interest is much easier to recognize, as long as the awards can influence their rights essentially, then they have significant interest in the dispute.
As to the requirement of “within the scope of the dispute”, most of the tribunals limit the amicus curiae submissions within the substantial issues of the arbitration. In fact, it is also unnecessary to allow amicus curiae to make submissions on the procedural issues. Firstly, the decisions on these issues will not produce much substantive influence on the public interest; secondly, if the amicus curiae are allowed to do so, it will make the arbitration too complicated, and the unduly burden the disputing parties; finally “the tribunal and the parties could provide the required expertise and no special perspective would seem to be of prima facie relevance.” (Jorge E. Viñuales, 2007) In essence, what influences the public interest is the award of the tribunal on substantial issues arising from the dispute, so the amicus curiae submissions shall be limited to deal with substantive legal or factual issues in the dispute.
As to the requirement of independence, this guarantees the petitioners can assist the tribunal in an objective way. The petitioners shall not discriminate either party to the dispute, and their opinions submitted to the tribunal shall not be biased. That is why both the legal instruments and the tribunals request the petitioners to state their membership, financial resource, parent organization, the relationship to the disputing parties and other related information the tribunal. The determining factor to evaluate whether a petitioner is independent is that whether it is under control of the disputing parties. So the tribunal shall pay much attention on whether either disputing party supply finance to the petitioners and whether the appointment of the petitioners’ leaders is influenced by the disputing parties. The requirement of independence can guarantee that the amicus curiae only aim to protect public interest in the dispute and avoid becoming persuasive talkers of the disputing parties.
(2)The scope of amicus curiae subjects in the investor-state dispute settlement mechanism
The related regulations discussed in the second part of this paper do not specify the scope of the subjects who can participate in the arbitration as amicus curiae. The classic statement on the scope of subjects is that a person or entity that is not a party to the dispute can file written submissions with the tribunal within the scope of the dispute. It seems to indicate that the scope of subjects who can act as amicus curiae in arbitration is very wide. But from the cases we discussed in the third part of this paper, it can be seen that most of the amicus curiae are played by local organizations of the host state and NGOs. Both of them are public interest advocacy groups, they represent the public to express their concerns and supply certain related information to assist the tribunal to make an objective assessment of the factual issues and legal issues of the dispute. The subjects who can act as amicus curiae submissions usually shall be limited to those who represent public interest, and they are just the representatives of the public in the arbitration. This point can also be demonstrated by the fact that public interest is the most important factor which supports the introduction of amicus curiae into the investor-state dispute settlement mechanism.
But it shall be noticed that the scope of amicus curiae subjects seems to be too narrow, and there are truly some people or organizations which can be essentially influenced by the outcome of the dispute where there is no public interest involved. If they are not allowed to participate in the arbitration, it seems unfair. So it seems better to expand the scope of amicus curiae subjects in the investor-state dispute settlement mechanism. Even there is no public interest, as long as the petitioner has direct and significant interest in the dispute, the petitioner shall be granted the chance to participate as amicus curiae. But the requirement of this interest shall be stricter than that of the requirements of the amicus curiae submissions listed in last part.
(3)Oral submissions
In practice, the amicus curiae sometimes request to be allowed to make oral submissions. However, the trial time at oral argument is very limited in practice on one hand, making oral submissions will take a lot of time which will unduly burden the disputing parties and delay the proceedings; on the other hand, the amicus curiae have already expressed their concerns and information better in their written submissions, the oral submissions may just repeat the content of the written submissions. So usually the amicus curiae’s requests are rejected by the tribunal. But it doesn’t mean there is no rationality for the amicus curiae to make oral submissions under special conditions. If the related public interest is very important, the tribunal shall consider giving the amicus curiae a chance to make a short argument for the public interest. The tribunal can limit the time for them to do so, which can help guarantee the proceedings be conducted efficiently. What’s more, if the disputing parties refer to the amicus curiae submissions at argument and some questions arise, the tribunal shall also give the amicus curiae a chance to respond to these questions if the tribunal considers it necessary. Of course, the precondition is that the amicus curiae shall be permitted to attend hearings.
(4)Limitation to the tribunals’ discretionary right
Both the current legal regime and practice of ICSID endow the tribunals the discretionary rights to deny the amicus curiae submissions when the tribunals believe that the submissions will unduly burden the disputing parties or disrupt the arbitration proceedings. The tribunal’s discretionary rights are too broad, because “a tribunal too easily could subjectively decide it does not want to hear from a third party, then claim that the party's filing an amicus brief would disrupt the proceedings.” (Chris Ford, 2004) Every submission may burden the disputing parties and disrupt the arbitration proceedings to some extent, but there are no uniform standards to draw a clear line for the tribunal to follow, accordingly even a very high-quality submission may be rejected by the tribunal based on the excuse of “undue burden” or “disruption”. In fact, the requirements for amicus curiae submissions have been set and interpreted strictly, through which the disqualified submissions are precluded. So these strict requirements have already helped to prevent undue burden to the disputing parties and disruption to the proceedings, for the submissions which can accord with the strict requirements are usually of high quality and helpful. The time and length limitation on amicus curiae submissions can also help reduce the cost and delay. What’s more, these submissions are related to public interest, which deserves the increase of litigation cost to the disputing parties and certain disruption to the proceedings. So, the tribunal’s discretionary rights to reject amicus curiae submissions based on such reasons shall be interpreted strictly in practice, for the tribunal can control them by reviewing the petitions according to strict requirements listed in the previous parts of the dissertation.
To date, the actual effects of the amicus curiae submissions on the awards of the investment arbitrations is hard to assess, because the investor-state dispute tribunals are relatively reluctant to consider the arguments presented by the amicus curiae submissions when making the awards. There are no clear rules which instruct the tribunal how to deal with the amicus curiae submissions in its award. And it has been made very clear that the amicus curiae do not have any right in the arbitral proceedings (Tomoko Ishikawa, 2010), so they have no legal basis to request the tribunal to consider their submissions in the awards. Without reference to the amicus curiae submissions in the awards, the amicus curiae participation will be easily thought by the public to “serve as merely window dressing” of the investment arbitration. (Christian Schliemann, 2013)
On the other hand, the tribunal has the discretionary rights to reject those petitions through reviewing whether they are consistent with the requirements listed by the related rules, so the accepted amicus curiae submissions are deemed useful by the tribunal, which will produce a reasonable expectation for the petitioners on the tribunal’s reference to their submissions. So, the tribunal shall at least make a summary of the amicus curiae submissions and show how it applies them to deal with certain legal or factual issues in its final awards.
(5)The amicus curiae’s rights to documents
When the petitioners apply to make written submissions, they usually request to be allowed to access to relevant documents at the same time by claiming that this will help them prepare the written submissions. Of course, only when the amicus curiae receive certain information about the dispute can they supply certain perspectives, professional knowledge and insights to the tribunal. But in practice, almost all such requests have been rejected by the tribunals. In order to let the institution of amicus curiae work well, it’s necessary to adopt a more transparent policy, or the amicus curiae participation will be nearly meaningless and can not play a positive role. This paper proposes the ICSID to disclose all the submissions of the parties to the amicus curiae, for only with enough information about the dispute can the amicus curiae make valuable submissions with the tribunals.
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On Amicus Curiae in the Investor-State Dispute Settlement Mechanism
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