Amicus Curiae in International Investment

Arbitration:
The Implications of an Increase in Third-
Party Participation

By
Eugenia Levine*

INTRODUCTION

The rapid rise to prominence of international investment arbitration in the

international legal order has been accompanied by mounting public concern
regarding the system's legitimacy and accountability. The controversy stems
from the fact that while arbitration is traditionally a largely confidential and
private dispute resolution mechanism, the involvement of a State in the
investment context can lead to arbitral decisions that affect a significantly
broader range of actors than the two parties to the dispute. As one author
highlights, "investor-State arbitration involves challenges to governmental
measures, sometimes measures of general application intended to promote or
achieve important public policy goals."' Commentators and civil society groups
have called for increased public involvement in investment arbitration
proceedings, in order to incorporate broader policy considerations into the
dispute resolution process and add a measure of transparency. 2 Many now view
procedural and structural changes to the "secretive" private process in investor-

. Eugenia Levine is an Associate in international arbitration and litigation at White & Case LLP. The
views expressed in this article are the author's own and are not reflective of the views of
the author's affiliated institutions.
1. Kenneth Kinyua, Assessing the Benefits of Accepting Amicus Curiae Briefs in Investor-
State Arbitrations: A Developing Country's Perspective (Stellenbosch Univ. Faculty of Law,
Working Paper Series No. 4, 2009), available at http://papers.ssrn.com/sol3/ papers.cfm?abstract
id=1310753.
2. Barnali Choudhury, Recapturing Public Power: Is Investment Arbitration'sEngagement of
the Public Interest Contributing to the Democratic Deficit?, 41 VAND. J. TRANSNAT'L L. 775
(2008); see also Andrew Newcombe and Axelle Lemaire, Should Amici Curiae Participate in
Investment Treaty Arbitrations?,5 VINDOBONA J. INT'L L. & ARB. 22 (2001).

200
2011] AMICUS CURIAE IN INT'L INVESTMENTARBITRATION 201

State arbitration as necessary to correct the system's perceived democratic

deficit and lack of openness to public scrutiny. 3
One avenue, which interested parties now increasingly rely on to include
broader interests in investor-State arbitration is amicus curiae, or third party,
intervention in arbitral proceedings. Arbitrators in investment disputes have over
the last decade begun showing greater willingness to provide third parties with a
very limited mandate to participate by way of written amicus briefs. In a number
of high-profile arbitrations, nongovernmental organizations (NGOs) have
intervened in order to provide expertise on thematic issues of public policy
implicated in the dispute. More recently, the range of potential interveners has
expanded beyond civil society groups. For example, in the pending case of AES
Summit GenerationLimited and AES-Tisza Erdma Kft. v. Republic of Hungary
(AES), 4 proceeding under the auspices of the International Centre for the
Settlement of Investment Disputes (ICSID), the European Commission
(Commission) has gained amicus curiae status to represent the European
Community's (EC or Community) interest in enforcing competition law. 5 The
increase in and diversification of third parties seeking amicus standing raises
complex questions regarding the nature of the interests that these third parties
may represent, the positive and negative consequences of their involvement, and
the different forms that their participation should take in the future. 6
This paper seeks to analyze these issues, focusing on the potential for
arbitration regimes to strike an appropriate balance between maintaining the key
features of the arbitral institution and allowing relevant third-party input. Part I
of this paper provides a broad overview of the international investment
arbitration regime and the extent to which it embodies disputing parties' rights
to privacy and confidentiality. Part II discusses in closer detail the rationale for
third-party intervention in investment arbitration, focusing on the need for
greater legitimacy and public participation in this area of dispute settlement, as
distinct from commercial arbitration. Part III traces recent developments in
amicus participation in international investment arbitration and the institutional
changes that have allowed for greater third-party involvement. Part IV focuses

3. Choudhury, supra note 2, at 807-821.

4. AES Summit Generation Ltd. and AES-Tisza Er6mil Kft. v. Republic of Hungary, ICSID
Case No. ARB/07/22 (2010).
5. Luke Eric Peterson, EuropeanCommission Seeks to Intervene as Amicus Curiae in ICSID
Arbitrations to Argue that Long-term Power PurchaseAgreements Between Hungary and Foreign
Investors are Contrary to European Community Law, lNV. ARB. REP., Sept. 17, 2008, at 14
[hereinafter European Commission as Amicus Report].
6. Meg Kinnear, Transparency and Third Party Participation in Investor-State Dispute
Settlement, Making the Most of International Investment Agreements: A Common Agenda,
Symposium Co-Organized by ICSID, OECD and UNCTAD (Sept 12, 2005); see also Epaminontas
Triantafilou, A More Expansive Role for Amici Curiae in Investment Arbitration?, KLUWER ARB.
BLOG (May 11, 2009), http://kluwerarbitrationblog.com/blog/2009/05/1 1/a-more-expansive-role-for-
amici-curiae-in-investment-arbitration/.
202 BERKELEY JOURNAL OFINTERNATIONAL LAW [Vol. 29:1

on the implications of the rise in amicus participation and considers the need to
develop more specific criteria to determine whether amicus curiae participation
should be permitted in particular circumstances, and the form and extent of such
involvement in particular contexts.

I.
INTERNATIONAL INVESTMENT ARBITRATION-AN OVERVIEW

In discussing the nature of third-party participation in investment

arbitration, it is first necessary to highlight the rationale and key features of this
system. Historically, international investment regimes have gained popularity in
large part due to investor concerns about "being subject to arbitrary and
discriminatory treatment by developing-country governments," 7 such as
expropriation, as well as national governments' recognition of the need to attract
investment opportunities by providing investors with greater protection.' As
Kinyua notes, "[t]his is especially true of developing countries, which possess
the necessary human and natural resources, but lack the capital and
technological know-how possessed by most industrialized states ... [their]
search for foreign investment is an openly declared goal." 9 Thus, numerous
governments seeking to attract investors have entered into international
investment agreements that incorporate "standards of behavior for host states,"
which ordinarily include provisions that direct investor-State disputes to
arbitration. 10 These provisions "essentially give an investor from a State party to
the treaty the right to initiate binding arbitration against another State party
when the investor has suffered an injury as a consequence of a measure of the
other State party that is inconsistent with the treaty's substantive obligations."ll
The international investment system is undergoing fast normative
development through a number of different regional, sectoral, and bilateral
regimes. There is an ever-increasing number of bilateral investment treaties
(BIT) being enacted by governments to regulate the flow of foreign direct
investment (FDI)-at present, there are an estimated 2,500 such agreements. 12
Apart from BITs, prominent foreign investment regimes include regional

7. J. Anthony VanDuzer, Enhancing the ProceduralLegitimacy of Investor-State Arbitration

through Transparencyand Amicus CuriaeParticipation,52 MCGILL L. J. 681, 688 (2007).
8. Id. at 688. For a more in-depth discussion of this issue, see generally, Jeswald W. Salacuse
& Nicholas P. Sullivan, Do BITS Really Work? An Evaluation of BilateralInvestment Treaties and
Their GrandBargain,46 HARV. INT'L L. J. 67, 77-79 (2005).
9. Kinyua, supra note 1.
10. See Luke E. Peterson, All Roads Lead out of Rome: Divergent Paths of Dispute Settlement
in Bilateral Investment Treaties, International Sustainable and Ethical Investment Rules Project,
Nautilus Institute for Security and Sustainable Development 5 (2002), available at
www.iisd.org/pdf/2003/investmentnautilus.pdf.
11. VanDuzer, supranote 7, at 688.
12. Id.
2011] AMTCUS CURIAE IN INT'L INVESTMENTARBITRATION 203

arrangements, such as the North American Free Trade Agreement (NAFTA),1 3

as well as sector-specific arrangements, such as the Energy Charter Treaty
(ECT). 14 Investor-State arbitral proceedings initiated pursuant to various treaty
mechanisms are carried out under the auspices of different arbitral institutions
and procedural rules. 15 For example, in investment disputes initiated under
NAFTA Chapter 11, an investor may choose to proceed on the basis of three
different sets of arbitral rules: ICSID Arbitration Rules (ICSID Rules), 16 the
ICSID Additional Facility Rules, 17 with proceedings in both of these cases
being conducted under the institutional auspices of ICSID, or under the
Arbitration Rules of the United Nations Commission on International Trade Law
(UNCITRAL Rules) 18 on an ad hoc basis. 19 Although arbitration under ICSID
is now the predominant forum specified in BITs, 20 some agreements continue to
refer to different procedural rules. The United Kingdom-Bolivia BIT, for
example, currently makes reference to the Arbitration Rules of the International
Chamber of Commerce. 2 1 Pursuant to the ECT, the investor can also initiate
proceedings in several forums, including ICSID. 22 As such, there are a growing
number of different regimes governing investment arbitration, each with its own
idiosyncratic provisions.
Despite their variations, investment arbitration regimes share common
features that appeal to investors. First, arbitration is considered to provide

13. North American Free Trade Agreement, U.S.-Can.-Mex., Dec.17, 1992, 32 I.L.M. 289
[hereinafter NAFTA].
14. Energy Charter Treaty art. 26, Dec. 17, 1994, 2080 U.N.T.S. 102 [hereinafter ECT].
15. See, e.g., International Chamber of Commerce Rules of Arbitration, available at
http://www.iccwbo.org/court/english/arbitration/rules.asp; London Court of International Arbitration
Rules of Arbitration, available at www.lcia.org/ARBfolder/ARB DOWNLOADS/ENGLISH/
rules.pdf; Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, available at
www.sccinstitute.com/_upload/shared-files/regler/ webA4_vanliga 2004_eng.pdf.
16. ICSID Rules of Procedure for Arbitration Proceedings, available at
http://www.sice.oas.org/dispute/comarb/icsidlicsid2a.asp [hereinafter ICSID Rules].
17. ICSID Rules Governing the Additional Facility for the Administration of Proceedings by
the Secretariat of the International Centre for the Settlement of Investment Disputes, available at
http://www.sice.oas.org/dispute/comarb/icsid/icsid3.asp [hereinafter ICSID Rules].
18. UNCITRAL Arbitration Rules, available at http://www.uncitral.org/uncitral/en/
uncitral texts/arbitration/1976Arbitrationrules.html.
19. See North American Free Trade Agreement, supra note 13, ch. 11, art. 1120 (stipulating
that a disputing investor may submit a claim against a host State to arbitration under either the Rules
of the ICSID Convention, if both the host State and the home State of the claimant are parties to the
Convention, or the Additional Facility Rules of ICSID, if either the host State or the investor's home
State is a party to the ICSID Convention, but not both, or the UNCITRAL Rules).
20. William D. Rogers, Senior Partner, Arnold & Porter, Remarks at Inter-American
Development Bank Conference on Commercial Alternative Dispute Resolution in the XXI Century:
The Road Ahead for Latin America and the Caribbean (Oct. 26, 2000) (notes on file with author).
21. See, e.g., Agreement Between the United Kingdom of Great Britain and the Government
of the Republic of Bolivia for the Promotion and Protection of Investments art. 9, May 24, 1988, Gr.
Brit.-Bol., GR. BRrr. T.S. No. 34 (1990) (Cm. 1071).
22. ECT, supra note 14, art 26.
204 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 29:1

parties with a more efficient and, in the investor-State context, perhaps more
impartial outcomes, by proceeding outside national judicial systems. 23 Because
arbitral awards are normally not subject to any appeal except for those provided
in the arbitration rules, the determination of these awards largely bypasses the
judicial process. 24 The other key attraction is "[t]he implication . .. that what
proceeds in the arbitration will not only be kept private between the parties but
will remain absolutely confidential." 25 This concept of privacy and
confidentiality originates primarily from the foundational underpinnings of
international commercial arbitration, but it has also to a considerable extent been
translated into the investment context. 26
Investment arbitral proceedings frequently rely on the same procedural
rules that govern commercial arbitration, and contain certain privacy and
confidentiality rights. 27 For instance, the UNCITRAL Rules, which are
frequently used in investment arbitration disputes, ensure the parties' rights to
privacy by guaranteeing in-camera proceedings without access by third parties
unless the disputing parties consent otherwise. 2 8 The rules also restrict the
publication of any awards without the parties' consent. 29 Although the existence
of a general duty of confidentiality that would prohibit access to documents
remains an unsettled question, arbitral panels proceeding under the UNCITRAL
rules tend to accept parties' rights to prohibit third-party access to relevant
documents by express agreement. 30 There are also similar privacy and
confidentiality rights in the investment-specific ICSID regime. For instance, the
ICSID Convention disallows publication of the award without the consent of the
parties 3' and the ICSID Rules prohibit attendance of third parties at arbitral

23. VanDuzer, supranote 7, at 668-690.

24. See, e.g., Convention on the Settlement of Investment Disputes Between States and
Nationals of Other States art. 53, Mar. 18, 1965, 575 U.N.T.S. 159, 4 I.L.M. 532 [hereinafter ICSID
Convention] (expressly stipulating that "[t]he award shall be binding on the parties and shall not be
subject to any appeal or to any other remedy except those provided for in this Convention. Each
party shall abide by and comply with the terms of the award except to the extent that enforcement
shall have been stayed pursuant to the relevant provisions of this Convention.").
25. Loukas Mistelis, Confidentiality and Third-Party Participation: UPS v. Canada and
Methanex Corp. v. USA in INTERNATIONAL INVESTMENT LAW AND ARBITRATION 169, 169 (Todd
Weiler ed., 2005).
26. See generally Cindy Buys, The Tensions between Confidentiality and Transparency in
InternationalArbitration,14 AM. REV. INT'L ARB. 121 (2003); Mistelis, supranote 25.
27. Mistelis, supranote 25.
28. UNCITRAL Arbitration Rules, supra note 18, art. 25(4).
29. Id. art. 32(5).
30. Mistelis, supra note 25; see also Methanex Corp. v. United States, Decision of the
Tribunal on Petitions from Third Persons to Intervene as Amici Curiae, Jan. 15, 2001, I 43-46
[hereinafter Methanex, Amicus Curiae Decision].
31. ICSID Convention, art. 48 (5), available at http://icsid.worldbank.org/ICSID/ICSID/
RulesMain.jsp.
2011] AMTCUS CURIAE ININT'L INVESTMENTARBITRATION 205

hearings without the parties' consent. 32 As such, the institutional rules and the
consent-based nature of arbitration have traditionally provided disputing parties
with the advantage of fashioning the investment arbitration proceedings to
preserve privacy and confidentiality.

II.
THE RATIONALE FOR THIRD-PARTY PARTICIPATION IN INVESTMENT
ARBITRATION

Unlike commercial arbitration, which ordinarily involves disputes affecting

two private contracting parties, investor-State arbitration frequently concerns the
public services sector, such as water, oil and gas, or waste management, and
implicates "government regulation aimed at the protection of public welfare
[such as] human rights, health and safety, labor laws, [or] environmental
protection." 33 At the same time, there is growing awareness that in many
respects, the investor-State dispute resolution system is "transfer[ring] decision-
making from the national to the international level." 34 One scholar, for instance,
expresses the following concern:
The growth in investment arbitration has also extended the powers of the
international bodies governing [investor-State] disputes. In particular, the
arbitrators governing these disputes are now regularly reviewing domestic public
interest issues due to their expanded role. In fact, in some cases arbitrators are
effectively striking down national regulations. 35
Some academics have gone as far as describing international investment
arbitration as a developing species of "global administrative law": they suggest
that investment arbitration obligates host-states to arbitrate disputes that stem
from sovereign acts, and thus function as a control mechanism over the exercise
of governmental authority. 36 It has therefore been argued that "investment
arbitration is best analogized to domestic administrative law rather than to
international commercial arbitration." 37
The perception that international investment arbitration has the potential to
usurp national decision-making powers and even aspects of state sovereignty in
areas of considerable public significance has led to growing questions about the
system's legitimacy. Critics underscore the idea that the element of state
participation and the potential significance of the decision for a host state and its

32. ICSID Rules, supra note 16, art. 32(2).

33. Kyla Tienhaara, Third Party Participationin Investment-Environment Disputes: Recent
Developments, 16 REV. EUR. CMTY. & INT'L ENVTL. L. 230, 230 (2007).
34. Choudhury, supra note 2, at 775.
35. Id.
36. See, e.g., Gus Van Harten and Martin Loughlin, Investment Treaty Arbitrationas a Species
of GlobalAdministrativeLaw, 17 EUR. J. INT'L L. 121, 121 (2006).
37. Id.
206 BERKELEY JOURNAL OFINTERNATIONAL LAW [Vol. 29: 1

population "render several issues of public nature and thus public interest." 38 A
further consideration in investment arbitration proceedings is that "adverse
decisions leading to monetary awards will likely be paid by out of the public's
tax revenues." 39 In light of these factors, commentators have argued that dispute
settlement procedures in investment arbitrations lack public openness and
scrutiny, and delegitimize outcomes arrived at in secrecy by private decision-
makers.40 Beyond ensuring legitimacy through transparency, some authors have
also highlighted that the public nature of these arbitrations may create a situation
where third parties have substantial legal interests in the dispute and should be
granted broader rights of participation. 4 1
In the seminal NAFTA case of Methanex Corporationv. United States of
America, the U.S. government acknowledged that investment disputes are "to be
distinguished from a typical commercial arbitration on the basis that a State [is]
the Respondent, the issues [have] to be decided in accordance with a treaty and
the principles of public international law and a decision on the dispute could
have a significant effect extending beyond the two Disputing Parties." 42 At the
same time, however, no one can ignore that arbitration is inherently based on a
certain degree of party autonomy and privacy, and arbitration cannot be invested
with all the features of a court process without reducing its attractiveness to
investors and its key role in promoting the foreign investment regime. 4 3 As
such, it is necessary to appropriately balance the attractive features of
investment arbitration, such as privacy and efficiency, with acknowledgment of
and accommodation for the impact of investor-State arbitration on broader
public policy and third-party interests. Nevertheless, on the whole there appears
to be a more compelling case for introducing a degree of third-party
participation into investor-State arbitration proceedings than into international
commercial arbitration.

III.
RECENT DEVELOPMENTS IN THIRD-PARTY PARTICIPATION IN INVESTMENT
ARBITRATION-THE RISE OF THE AMICUS CURIAE

A. The Concept ofan "Amicus Curiae"

Third parties, or non-disputing parties, often participate in dispute

resolution mechanisms as amicus curiae. The term is broadly translated as

38. Mistelis, supranote 25, at 178.

39. Choudhury, supra note 2, at 809.
40. See, e.g., Newcombe & Lemaire, supra note 2.
41. See, e.g., Triantafilou, supranote 6.
42. Methanex Amicus Curiae Decision, supra note 30, 1 17.
43. Jorge E. Vifluales, Amicus Intervention in Investor-State Arbitration, 61 DISP. RESOL. J. 72
(2007).
2011] AMICUS CURIAE IN INT'L INVESTMENT ARBITRATION 207

"friend of the court." 4 4 Amicus participation is ordinarily justified on the basis

that this friend of the court is in a position to provide the court or tribunal its
special perspective or expertise in relation to the dispute. 45
The concept of amicus curiae is accepted in a number of domestic legal
systems and has more recently gained some recognition in various international
proceedings. Amicus curiae participation in domestic court cases is, for instance,
well developed in U.S. jurisprudence, and is also present in other common law
and some civil law jurisdictions. 46 On the domestic level, amicus intervention
has not been limited to any one particular kind of group, and has frequently
involved a range of participants, including individuals and foreign
governments. 4 7 On the international plane, the practice relating to third-party
participation varies among different forums, although several international
tribunals specifically contemplate third-party involvement. 4 8 For instance, while
the International Court of Justice has a rather restrictive practice in relation to
third-party participation, 49 the European Court of Human Rights (ECHR)
includes specific provisions for amicus curiae in its governing convention. 50
Further, the World Trade Organization (WTO), a body whose practices in
adjudicating international trade disputes are perhaps most relevant for investor-
State disputes, also allows for a limited form of third-party intervention by way
of amicus briefs. 51
Amicus participation in dispute resolution proceedings ordinarily takes the
form of written submissions addressed to the decision-maker; 52 however, third-
party involvement is not by definition limited to written submissions. 53 For
instance, the ECHR has previously permitted third parties to participate in the
oral hearings stage of the proceedings. 54 The court justified such broad rights of

44. Lance Bartholomeusz, The Amicus Curiae Before InternationalCourts and Tribunals, 5
NON-STATE ACTORS & INT'L L. 209,211 (2005).
45. Id.
46. Id.
47. Id.
48. Id.
49. Id.
50. See European Convention on Human Rights art. 36(2), Nov. 4, 1950, 213 U.N.T.S. 222,
stating: "The President of the Court may, in the interest of the proper administration ofjustice, invite
any High Contracting Party which is not a party to the proceedings or any person concerned who is
not the applicant to submit written comments or take part in hearings."
51. See, e.g., WTO, Understanding on Rules and Procedures Governing the Settlement of
Disputes, art.17(9), available at http://www.wto.org/english/tratope/dispu e/dsu-e.htm; see also
Petros C. Mavroidis, Amicus CuriaeBriefs Before the WTO: Much Ado About Nothing, Jean Monnet
Working Paper 2/01, availableat www.worldtradelaw.net/articles/mavroidisamicus.pdf.
52. Bartholomeusz, supra note 44.
53. Id.
54. See, Timothy R. West and Matthew M.C. Roberts, Amicus Curiae Participationin U.S.
Supreme Court Oral Arguments, ALL ACADEMIC RESEARCH (2003), available at
http://www.allacademic.com//meta/p_mla_apa research-citation/0/8/3/4/1/pages834 1/p8341 1-
208 BERKELEY JOURNAL OFINTERNATIONAL LAW [Vol. 29:1

intervention on the basis that it highlighted "the general importance of the issue
in the territories of all Contracting Parties." 5 5 U.S. courts have also on occasion
extended amicus rights to participation in the oral part of the proceedings. 5 6 As
such, the concept of amicus curiae is not inherently restricted to any one form of
participation and could, in appropriate cases, include attendance and
participation at oral hearings, access to the disputing parties' documents and
even cross-examination of witnesses. 5

B. Amicus CuriaeParticipationin Investment Disputes: The Recent Trends

Investment arbitration tribunals initially refused to allow third-party

participation on account of the inherent difference between arbitration
proceedings and those before domestic or international courts. 58 In Aguas del
Tunari SA v. The Republic of Bolivia, known as the Bechtel case, 59 which took
place pursuant to the provisions of the Netherlands-UK BIT, the tribunal denied
citizens and environmental groups standing at the arbitration due to the parties'
unwillingness to consent to their participation. 60 The tribunal, which was
operating under the auspices of ICSID, found that the "interplay of the ICSID
Convention and the BIT, and the consensual nature of arbitration" left the
decision as regards amicus participation in the hands of the parties to the
arbitration. Since the parties did not consent, the tribunal lacked the power to
allow any form of third-party intervention. 6 1 The decision in Bechtel has been
subjected to considerable criticism and suggestions that the approach adopted by
62
the tribunal would "deprive the public of reasonable expectations."
In recent years, there has been an undeniable shift in investor-State
arbitration toward greater tolerance of limited third-party participation, perhaps
in response to continuing public pressure and criticism. 63 The NAFTA parties
have expressly supported this shift: the Free Trade Commission issued a
Statement on Non-Disputing Party Participation (FTC Statement), that
empowers NAFTA Chapter 11 tribunals to embrace nonbinding criteria for

1.php.
55. Id.
56. See, Timothy R. West and Matthew M.C. Roberts, supra note 54.
57. Choudhury, supra note 2; Vifluales, supranote 43.
58. See, e.g., Secretive World Bank TribunalBans Public and Media Participationin Bechtel
Lawsuit over Access to Water, CIEL.ORG, http://www.ciel.org/IfiLBechtelLawsuit_12Feb03.html
(last visited Oct. 8, 2010).
59. Aguas dal Tunari SA v. The Republic of Bolivia, ICSID Case No. ARB/03/02 (Oct. 21,
2005).
60. Choudhury, supranote 2, at 814.
61. Id.
62. See, e.g., Mistelis, supra note 25, at 185.
63. VanDuzer, supranote 7, at 681.
2011] AMCUS CURIAE IN INT'L INVESTMENTARBITRATION 209

accepting written submissions from third parties.64 Further, US and Canadian

model BITs have included provisions that allow tribunals to consider granting
third parties the rights to submit briefs in investment arbitration. 65 Finally, the
ICSID Rules have been amended to provide ICSID tribunals with the discretion
to allow interested third parties to make written submissions in arbitral
proceedings.
In terms of application, in several recent high-profile cases, tribunals have
permitted non-disputing parties to submit amicus curiae briefs in investment
arbitration proceedings. These briefs have been governed by either UNCITRAL
or ICSID rules. While third-party involvement originally centered on NGOs, in
recent cases more varied amicus curiae have sought intervention rights.

1. NGOs as Amicus Curiae

The early cases to grant third-party intervention rights in investment

disputes overwhelmingly involved NGOs and civil society groups. These groups
sought amicus standing to represent public interests in the subject matters of the
disputes, including health and sustainable development.
Methanex was the first case to recognize the "privilege" of third parties to
participate as amicus curiae in investment arbitration proceedings. 66 The case
involved a NAFTA dispute and proceeded under the UNCITRAL Rules. 67 The
dispute concerned the legality of a governmental public regulation; the right of
the Government of California to ban substances produced by a Canadian
investor on the basis of potential health risks to local populations. 6 8 Several
Canadian NGOs, including the International Institute for Sustainable
Development, petitioned the arbitral tribunal to submit an amicus brief on
critical legal issues of public concern, and to request access to documents in the
dispute as well as access to hearings as an observer. 69 The Methanex tribunal
considered the relevant provisions of NAFTA and the UNCITRAL Rules, and
ultimately held that it had the implied procedural authority to permit or prohibit
amicus access.70 Specifically, the tribunal relied on Article 15(1) of the
UNCITRAL Rules, which states:
Subject to these Rules, the arbitraltribunalmay conduct the arbitrationin such

64. NAFTA Free Trade Commission, Statement of the Free Trade Commission on Non-
DisputingParty Participation,Oct. 7, 2003, 16 W.T.A.M. 167 (2004) [hereinafter FTC Statement].
65. See Canada Model Foreign Investment Protection Agreement, art. 39 [hereinafter
Canadian Model BIT], available at http://ita.law.uvic.caldocuments/Canadian2004-FIPA-model-
en.pdf; United States Model Bilateral Investment Treaty, art. 28(3) [hereinafter US Model BIT],
availableat http://www.ustr.gov/Trade Sectors/Investment/ModelBIT/SectionIndex.html.
66. Choudhury, supra note 2; see also Methanex Amicus Curiae Decision, supra note 30.
67. Methanex Amicus Curiae Decision, supranote 30.
68. Id.
69. Id.
70. Id.
210 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 29:1

manner as it considers appropriate,provided the parties are treated with equality

and that at any stage of the proceedings each party is given a full opportunity of
presenting his case.
The tribunal emphasized that this case concerned a matter of public interest
"not merely because one of the Disputing Parties is a State," but because it
concerned provision of public services and matters of human health, and the
amicus could bring a new perspective on the issues. 72 At the same time, the
tribunal considered itself bound by Article 25(4) of the UNCITRAL Rules-the
in camera provision-not to allow third-party access to hearings, and disallowed
access to documents on the basis of privacy. 73 The tribunal generally
underscored that it was not granting any substantive right of participation to the
NGOs, as this was beyond its power, and so there were not additional burdens
placed on the disputing parties. 74
The following case to consider the amicus issue under the UNCITRAL
Rules, United Parcel Services, largely followed the approach of the Methanex
tribunal. 75 The proceedings in UPS concerned a claim by United Parcels of
America that Canada Post was inappropriately using its monopoly in letter mail
to compete unfairly against private-sector courier and parcel services in breach
of several NAFTA provisions. 76 The Canadian Union of Postal Workers and the
Council of Canadians sought to represent Canadian postal workers' labor
interests as amicus curiae.77 The tribunal in UPS accepted the request, but
limited the NGOs to submission of written briefs, although the parties ultimately
agreed to render the hearings and relevant documents public.78 Notably, the
UPS tribunal explicitly stated that the amicus would not be able to raise any new
issues not raised by the parties. 79 In granting the amicus rights, the UPS tribunal
again placed considerable emphasis on the need to legitimize arbitral
proceedings by allowing for greater public intervention. 80
In the ICSID context, the cases of Biwater Gauff (Tanzania) Ltd. v. United
Republic of Tanzania81 and Suez, Sociedad General de Aguas de Barcelona,
S.A., and Vivendi Universal S.A. v. The Argentina also extended amicus curiae

71. Id. (emphasis added).

72. Id. 149.
73. Id. 42.
74. Id. 27.
75. See United States Parcel Service of America v. Canada, Decision of the Tribunal on
Petitions for Intervention and Participation as Amici Curiae(Oct.17, 2001) [hereinafter UPS Amicus
Curiae Decision].
76. Id; Choudhury, supranote 2; VanDuzer, supra note 7.
77. UPS Amicus Curiae Decision, supra note 75; Mistelis, supra note 25, at 192.
78. UPS Amicus Curiae Decision, supranote 75, $ 50.
79. Mistelis, supranote 25.
80. UPS Amicus Curiae Decision, supra note 75, T 70.
81. Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No.
ARB/05/22, Procedural Order No. 5 (Feb. 2, 2007) [hereinafter Biwater Amicus Curiae Decision].
2011] AMICUS CURIAE IN INT'L INVESTMENTARBITRATION 211

rights to third-party NGOs. 82 The Biwater arbitration concerned Tanzania's

privatization of its water supply and sewage services in the country's capital,
Dar es Salaam, and the subsequent termination by the Tanzanian government of
a supply services contract with a UK company.8 3 Five NGOs, representing
human rights and sustainable development concerns, filed a joint "Petition for
Amicus Curiae Status," requesting access to key documents submitted by the
parties and permission to attend any hearing and to reply to any of the tribunal's
written questions. In support of their submissions, the NGOs claimed that the
Biwater arbitration proceedings involved issues of great concern to the local
community in Tanzania, and a variety of potential issues of concern to
developing countries that have privatized water or other infrastructure, from the
perspective of sustainable development. 84 The Biwater tribunal decided the
issue of amicus participation under the newly introduced Rule 37(2) of the
ICSID Rules, which grants the arbitral tribunal discretion to allow third-party
submission of written briefs. 85 Rule 37(2) requires the arbitral tribunal to
consider whether, among other things:
(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 disute; and (c) the non-disputing party has a significant
interest in the proceeding. 8 a
The Tribunal held that the Rule 37(2) criteria were satisfied such as to
allow the NGOs to submit amicus briefs. 87 The tribunal also did not allow the
NGO petitioners any active participation, partly on the basis that Rule 32(2)
requires party consent to attend hearings and partly due to the tribunal's view
that the third parties did not require access to the record in order to submit
meaningful and informed briefs. 88 As in the previous cases decided under the
UNCITRAL Arbitration Rules, the tribunal emphasized that amicus curiae are

82. Suez, Sociedad General de Aguas de Barcelona, S.A., and Vivendi UniversalS.A. v. The
Argentina, ICSID Case No. ARB/03/19, Order in Response to a Petition for Transparency and
Participation as Amicus Curiae in Suez (July 30, 2010) [hereinafter Suez].
83. Biwater Amicus Curiae Decision, supra note 81; Andrew de Lotbiniere McDougall and
Ank Santens, ICSID TribunalsApply New Rules on Amicus Curiae,22 MEALEY'S INT'L ARB. REP.
69(2007).
84. Biwater Amicus Curiae Decision, supra note 81, at 7.
85. Id. at 2.
86. Note that the first two criteria in Rule 37(2) of the ICSID Rules of Arbitration are
somewhat similar to the considerations discussed by the Methanex and UPS tribunals in determining
whether to grant amicus participation under the UNCITRAL Rules. Notably, under the ICSID Rules,
amicus curiae are not limited to participating solely in disputes concerning a question of "public
interest." In contrast, tribunals adjudicating under the UNCITRAL Rules emphasize this criterion in
deciding whether to allow amicus participation.
87. Biwater Amicus Curiae Decision, supranote 81, at 14-15.
88. Id. 62-68.
212 BERKELEY JOURNAL OFINTERNATIONAL LAW [Vol. 29:1

not entitled to any kind of substantive rights. 89 Notably, the tribunal stated that
"allowing for the making of such submission by these entities in these
proceedings is an important element in the overall discharge of the Arbitral
Tribunal's mandate, and in securing wider confidence in the arbitral process
itself." 90 In its order, the tribunal highlighted the presence of public interest in
the arbitration. 91
Finally, the ICSID tribunal in the Suez case also made reference to the new
procedural standards on amicus participation, even though the proceedings were
not officially governed by these standards, as they were initiated prior to the
amendments. 92 The proceeding, which concerned a dispute regarding water
privatization and water supply services in Argentina, considered a petition for
amicus curiae participation by five NGOs, representing issues of human rights
and public services access. 93 As in the cases already discussed, the third parties
sought access to documents and hearings as well as the right to submit legal
briefs. The tribunal, perhaps not surprisingly, did not extend participation rights
beyond submission of briefs. 94 Although the decision-makers in this case
emphasized that the amicus curiae could bring new perspectives to the
proceeding, they also highlighted the importance of not unduly burdening the
disputing parties with broad third-party intervention. 95
A review of the manner in which tribunals have allowed NGOs to
participate in investment arbitrations to date reveals that the rationale driving
their intervention has been more procedural than substantive. Given the public
interest in the proceedings, the need to promote a level of public involvement
and transparency appears to have influenced arbitral tribunals. At the same time,
the arbitral tribunals, perhaps because they perceived that these third parties
were not able to materially impact the merits of the disputes, granted them very
limited rights.

2. Moving beyond NGOs in Amicus Curiae Participation

In analyzing the role of amicus curiae in investment arbitration, it is
necessary to recognize that this domain is not always limited to public interest
advocacy groups. In fact, the field has been progressively expanding to include a
broader range of potential third-party actors. In 2005, the NAFTA Chapter 11
case of Glamis Gold Ltd. v. United States of America, a dispute governed by the
JNCITRAL Rules and concerning reclamation requirements for open-pit mines

89. Id.; McDougall & Santens, supra note 83, at 73.

90. BiwaterAmicus Curiae Decision, supranote 83, 150.
91. Id. 11 51-52.
92. McDougall & Santens, supra note 83, at 69.
93. Id. at 74.
94. Id. at 80.
95. Suez, supra note 82, 1 21
2011] AMICUS CURIAE IN INT'L INVESTMENTARBITRATION 213

in California, expanded the concept of potential third-party interveners beyond

civil society groups. 96 The tribunal accepted amicus briefs from the Quechan
Indian Nation, which made submissions regarding the government's alleged
duty under international law to preserve sacred lands on which the mines were
located. In addition, as the tribunal accepted a brief from the National Mining
Association, a business association representing the American mining sector,
which submitted materials regarding the need to ensure that the State's
regulation did not undermine the interests of miners. 97 The tribunal did not
allow any of the third parties to actively participate in the case. 98 While the
dispute is presently unresolved on the merits, the amicus curiae in this case, at
least the Quechan Indian Nation, appear to have represented a more concrete
interest in the outcome of the proceedings than the NGOs that had intervened in
previous disputes. For instance, the substantive outcome of the case appears to
affect the amicus curiae in this case because they have rights directly connected
to the land on which the mines are located.
The pending case of AES, discussed above, is another illustration of the
diversification of third-party interveners in investment arbitration. It is also
perhaps an even more striking example of amicus curiae representing a direct
legal interest in the outcome of the dispute as opposed to a broad public interest
mandate. The ECT dispute concerns "alleged breaches by Hungary of
commitments contained in long term power purchase agreements (PPAs)
between [AES and Electrabel] and a Hungarian entity, Magyar Villamos Muvek
(MVM)." 99 Although case details are not publicly available, it has been reported
that the Commission "wishes to intervene in the ICSID arbitrations out of a
desire to see that EC law is enforced." 100 The Commission believes that PPAs
negotiated prior to a State's accession to the European Union (EU) are "illegal
as a matter of European Community Law" because they constitute illegitimate
aids to that country. 10 1 One source explains that "[w]hile the EC acknowledges
the need to compensate power generators for their investments in Hungary prior
to that country's EU accession, it says that the PPAs are not an appropriate
means insofar as they shelter incumbent operators from competition, rather than
assist them in adapting to open competition."102 Thus, the Commission may
seek to fulfil its mandate as the enforcer of EU competition law by making
amicus submissions regarding illegal aspects of Hungary's PPAs, in order to
influence the decision on the merits, particularly the extent to which AES should

96. Kinnear, supra note 6, at 6.

97. Tienhaara, supra note 33, at 238-239.
98. See, e.g., Glamis GoldLtd. v. U.S., Decision on Application and Submission by Quechan
Indian Nation (Sept. 16, 2005).
99. European Commission as Amicus Report, supranote 5, at 14.
100. Id. at 14.
101. Id. at 14-15.
102. Id. at 15.
214 BERKELEY JOURNAL OFINTERNATIONAL LAW [Vol. 29: 1

be compensated for any breaches following Hungary's accession to the EU. In

light of this background, in September 2008, the Commission filed an
application to participate as an amicus in the proceedings pursuant to ICSID
Rule 37(2),103 and in November 2008, the tribunal issued its procedural order
ruling in favour of the Commission. 104 Although it is unknown whether the
Commission sought broader participation rights, such as access to documents or
hearings, the tribunal only extended amicus involvement to submission of a
written brief. This was similar to the approach taken by tribunals in the previous
cases.105
A review of amicus participation to date certainly highlights the increase in
both the interest in participation as well as the institutional tolerance towards
this phenomenon. At the same time, it is evident that the participation rights of
third parties remain extremely limited. Overall, the current institutional and
practical approach to amicus intervention in investment arbitration can be
categorized as discretionary and largely not formalized.

IV.
THE IMPLICATIONS OF RECENT TRENDS INAMiCUS CURIAE PARTICIPATION

The recent trends in amicus curiae involvement in investment arbitration

raise complex questions regarding the manner in which tribunals should
approach third-party intervention in the future. First, the recent application for
amicus standing by the Commission implicates the issue of whether institutional
rules and tribunals need to expressly take into account the nature, significance,
and directness of a third party's claimed interest in a dispute when deciding
upon rights of intervention. In determining the nature of amicus rights in
investment arbitration, it is of course also necessary to consider the potential
benefits and drawbacks of expanding the process beyond the disputing parties.
The overarching question centers on the various forms that amicus curiae
participation should take in different circumstances, and the criteria that should
be developed to achieve a more predictable and systematic approach to granting
third-party participation rights.

A. Consideringthe Nature of the Legal Interests Representedby Amicus

Curiae
The contrast between NGO participation and that of third parties such as

103. AES Summit Generation Limited and AES-Tisza Erdmi Kft. v. Republic of Hungary,
ICSID Case No. ARB/07/22, Procedural Details, available at http://icsid.worldbank.org/ICSID/
FrontServlet?requestType=CasesRH&reqFrom=ListCases&caseld=C1 14&actionVal=viewCase (last
viewed Nov. 2, 2010).
104. Id.
105. Triantafilou, supranote 6.
2011] AMICUS CURIAE IN INT'L INVESTMENTARBITRATION 215

the Commission raises a crucial issue regarding the need for investment
tribunals to recognize that certain third parties may have more significant legal
interests in the outcome of the dispute, and as such, may merit broader
participation rights.
In this regard it is significant that the NGO amicus curiae participants
discussed earlier did not have direct legal interests in the outcomes of the
dispute. Rather, they represented broad concerns with key thematic issues. For
instance, a review of the amicus submissions in the Methanex case indicates that
the NGOs focused primarily on human rights, such as the right to potable water
and general health concerns. 106 The briefs submitted by these NGOs were
somewhat "opinion-driven" in nature, and not directly connected with the
primary and substantive legal issues implicated in the proceedings. 10 7
On the other hand, the Commission appears to have "a significant, direct,
and legally protectable interest" in the outcome of disputes involving EU
law. 108 Within the EC system and throughout EU territory, the Commission has
the specific mandate of a "public prosecutor," particularly in competition law
matters. 109 Moreover, the Commission has frequently intervened as amicus
curiae in a range of proceedings: it routinely participates as a third party in
arbitral EC competition law proceedings, " 0 and has previously appeared before
U.S. courts in matters that had implications for the Commission's enforcement
of European competition law and policy.' Commentators have highlighted
that there is a strong Community interest in the correct and uniform application
of Community law. 1 12
Thus, there is an argument that the Community has a particular mandate to
ensure that Community law is interpreted consistently in all forums, which
justifies giving greater weight to its submissions in the AES proceedings than
those of NGO third parties in previous investment arbitrations. One scholar
argues that the nature of the EC's interest in this case was more significant than
informing the tribunal of narrow environmental or cultural implications of a

106. See Methanex, Submission of Non-Disputing Parties Bluewater Network, Communities for
A Better Environment and Centre for International Environmental Law (Mar. 9, 2004), available at
http://www.state.gov/s/l/c5818.htm.
107. For a discussion of the "opinion-driven" nature of many amicus curiae submissions, see
Andrea K. Bjorklund, The Participationof Amicus Curiae in NAFTA ChapterEleven Cases, Essay
Papers on Investment Protection (2002), available at http://www.international.gc.ca/trade-
agreements-accords-commerciaux/disp-diff/participate.aspx?lang-en.
108. Triantafilou, supra note 6.
109. Gordon Blanke, The Role of the European Commission as Amicus Curiae in EC Merger-
Remedy-Related Arbitrations, in THE USE & UTILITY OF INTERNATIONAL ARBITRATION in EC
COMMISSION MERGER REMEDIES: A NOVEL SUPRANATIONAL PARADIGM IN THE MAKING? 155
(Gordon Blanke ed., 2006).
110. Id.
111. See, e.g., Calvin S. Goldman et al., International Antitrust: Developments After Empagran
and Intel - Comity Considerations, Am. Bar Ass'n Antitrust Mtg. (Mar. 31, 2005).
112. Blanke, supranote 109, at 161.
216 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 29:1

decision. "The EC sought to assert the relevance of its legally prescribed

mandate, which is replete with policy implications for the entire European
Union, and to address the consequences of a conflict between that mandate and
the tribunal's jurisdiction." 1l3
There is, of course, the counter-argument that the proper forum for the
Commission to redress any violations of Community law would be through
Community law mechanisms, such as prosecuting Hungary before the European
Court of Justice (ECJ). 114 However, such an approach remains problematic
from the viewpoint of securing the integrity and consistency of Community law.
The ECJ process is lengthy, meaning that the arbitral tribunal could issue an
award inconsistent with Community law while the judicial process at the EC
level is pending. 115 States party to the ICSID Convention must enforce a final
award on their territory.11 6 Under the ICSID Convention, State parties must
recognize an ICSID award in the same manner as a final judgment of a court of
that State. 1 17 Notably, the ICSID Convention does not include public policy
exceptions to enforcing an award. 118 As such, an EU Member State may be
required to actively enforce on its territory an award that may not be entirely
consistent with EU law. Such an outcome could certainly undermine the
integrity of the Community system. Notably, Judge Richard Posner has argued,
admittedly in a domestic law context, that amicus curiae participation is
particularly warranted where the outcome of the proceedings could affect the
party's interest in another case. 1 19 By analogy, an award against Hungary might
affect EU Member State and Commission interests in enforcing, and thereby
legitimizing, awards based on agreements that may be illegal under Community
law.
In light of these significant interests, some argue the Commission, and
amicus curiae applicants in similar circumstances, should be permitted "a more
effective legal recourse" than submission of an amicus brief, and that the
arbitration rules governing the issue of third-party participation should
contemplate broader involvement. 120

113. Triantafilou, supra note 6.

114. See The Treaty Establishing the European Community, 2006 O.J. (C321) E37, 179, art.
226 (allowing the Commission to initiate enforcement actions against Member States for alleged
violations of Community law).
115. See, e.g., Ian S. Forrester, The Judicial Function in European Law and Pleading in the
European Courts, 81 TUL. L. REv. 647 (2007).
116. See, e.g., ICSID Convention, supranote 24, arts. 53-54.
117. Id.
118. Id arts. 50-52 (stipulating the narrow grounds for annulling the award and which do not
include a public policy exception).
119. Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062, 1063 (7th Cir. 1997);
Bjorklund, supranote 107.
120. Triantafilou, supranote 6.
2011] AMTCUS CURIAE IN INT'L INVESTMENTARBITRATION 217

B. The PotentialBenefits Stemming from Amicus CuriaeParticipationin

Investment Disputes
Another issue to consider in evaluating amicus participation in investment
disputes concerns the kinds of benefits that third parties could bring to awards,
and to the system as a whole. 12 1 In this regard, an analysis of amicus
involvement to date suggests that different amicus curiae might contribute to the
procedural legitimacy of the arbitral process, as well as to the substantive quality
of the awards.
First, as highlighted earlier, amicus curiae participation can promote a
general interest in procedural openness and ensure that the broader public does
not perceive the arbitration process as "secretive." As already highlighted, there
is a public interest in the enhancement of procedural legitimacy of investment
arbitration by means of greater participation. At the same time, the NGO amicus
curiae have not, to date, made submissions that were "determinative to the
awards rendered."1 22 For instance, the Methanex final award referred to the
"well-reasoned" nature of the amicus submissions but did not indicate whether
the perspectives offered by the public interest groups in any way impacted on
the outcome.123 As such, some amicus curiae may be limited to contributing a
level of public legitimacy to arbitral proceedings.
Nevertheless, there may in fact be instances where third-party involvement
actually serves both to improve the legal quality of the award and to assist in the
systemic development of international investment law as a whole. As to the first
point, in some cases parties to a proceeding may have a specific vested interest
in not disclosing all the facts pertinent to the issues in dispute. 124 For instance,
in AES it is possible that neither Hungary nor the investor would have an interest
in emphasizing the fact that the contracts between them may violate the EC's
restrictions on State aid. 12 5 The claimant would certainly not wish to emphasize
that a contract may be based on an illegality, as this may impact their ability to
claim damages. As for Hungary, the State may consider it detrimental to
emphasize this issue as its primary defence, since its acknowledgement of
engaging in State aid may give rise to further actions by the Commission within
the EU sphere. In this regard, the Commission's involvement could potentially
highlight relevant legal issues that may not otherwise have prominence.
In a similar context, Kinyua suggests that amicus curiae may have a role to
play in bringing forward "[i]ssues of bribery or corruption."' 26 The problem of
bribery arose in the prominent investor-State arbitration case World Duty Freev.

121. Kinyua, supranote 1.

122. Kinnear, supra note 6, at 7.
123. Methanex, Final Award (Aug. 3 2005), 11.
124. Triantafilou, supra note 6.
125. Id.
126. Kinyua, supranote 1.
218 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 29:1

Republic of Kenya. 127 In that case, the State and the claimant both
acknowledged the claimant's payment of a cash bribe to the previous
government. 128 However, there are likely to be circumstances where neither
party would consider it advantageous to disclose that their agreement was
founded on official State corruption. 12 9 In this situation, informed amicus curiae
can play an important role in bringing relevant allegations of corruption to the
arbitral tribunal. 130 Notably, the issue of agreements based on an illegality is
significant since "[t]here is a strongly held view within the arbitration
community that an arbitral tribunal has the power and jurisdiction to consider
issues of illegality and can do so of its own motion, if the issue has not been put
before it by the parties." 1 31
Further, participation by representatives of supranational regimes, such as
the Commission, could specifically assist in preventing the "fragmentation" of
international law, whereby conduct that is illegal under one international regime
is nevertheless sanctioned under another international law regime. 132 Several
commentators have expressed the concern that "investment law must evolve and
be interpreted consistently with international law, including human rights law,
multilateral environmental treaties and WTO law." 133 It is notable that the
Professor Ernst-Ulrich Petersmann specifically identified "fragmentation and
conflicts between different special international treaty regimes." 134 A lack of
coordination at the international level may lead to national authorities
increasingly becoming subject to conflicting commands from different
supranational systems. As already suggested in the discussion of the AES case,
the Commission's interest, and potentially its capacity, to prevent fragmentation
of Community law and enforcement on EU territory of awards contrary to EC
public policy is a case on point. As a mechanism to minimize fragmentation of
international law, it may be necessary as a matter of best practice to allow
representatives of interested supranational regimes to participate in arbitral
proceedings in order to inform the tribunal of the extent to which the laws of a

127. World Duty Free Company Ltd. v. Republic of Kenya, ICSID Case No. ARB/00/7 (Oct. 4,
2006) (award not publicly available).
128. Kinyua, supranote 1.
129. Id.
130. Id.
131. Id.
132. For a general discussion of the concept of "fragmentation" in international law, see Ernst-
Ulrich Petersmann, Justice as Conflict Resolution: Proliferation, Fragmentation, and
Decentralization of Dispute Settlement in International Trade, 27 U. PA. J. INT'L ECON. L. 273
(2006).
133. See, e.g., Anna van Aaken, Fragmentationof InternationalLaw: The Case ofInternational
Investment Protection 1 (University of St. Gallen Law School, Law and Economics Research Paper
Series, Working Paper No. 2008-1, 2008).
134. Emst-Ulrich Petersmann, Justice as Conflict Resolution: Proliferation, Fragmentation,
and DecentralizationofDispute Settlement in InternationalTrade, 27 U. PA. J. INT'L ECON. L. 273,
280 (2006).
2011] AMCUS CURIAE IN INT'L INVESTMENTARBITRATION 219

different international regime are implicated. For instance, legal representatives

from the ECHR or the WTO could assist investment arbitration tribunals in
rendering awards that do not create conflicting obligations for national
governments and thereby fragment international law. This approach would be
highly relevant in ensuring that the international system of laws develops "not as
a rigid and fractured discipline where the right hand does not know what the left
is doing, but [as] a broad whole in which the workings of its branches inform
each other." 1 35
In light of these considerations, there are compelling reasons to allow third
parties to participate in State-investor arbitrations. Perhaps decision-makers
should consider introducing potentially broader participation rights than merely
making written submissions, on the basis that amicus contributions could create
substantial benefits for the arbitral proceedings and for the investment
arbitration regime in the wider context of international law.

C. Consideringthe Stakes: The Negative Aspects ofAllowing Expanded Third-

Party Participation

In considering the role that amicus curiae can play in investment arbitration
proceedings, and in contemplating whether broader intervention rights may be
warranted in certain circumstances, it is of course necessary to also reflect on the
potential negative consequences of third-party involvement in State-investor
arbitral proceedings. There are in fact a number of possible, and somewhat
compelling, arguments against a sweeping or radical expansion of the State-
investor arbitration mechanism to encompass broader third-party participation.
First, third-party intervention can increase the practical burdens on the
disputing parties. In fact, the Methanex tribunal emphasized the need to ensure
that third-party participation does not impose any additional burdens on the
parties or the arbitral process more generally. 136 Several commentators have in
fact highlighted that allowing greater third-party intervention in State-investor
disputes could potentially lead to rising costs and delays. 137 Arbitration
specialist Noah Rubins suggests, for example, that there are even considerable
"costs and time involved in the parties' review and [potential] response to
nonparty submissions."l 38 This consideration is central given that "[investor-
State disputes already run, on average, several years and entail large costs for
both claimants and respondent States." 1 39 Obviously, if the level of third-party
participation moves beyond submission of written briefs, and third parties seek

135. Kinyua, supra note 1.

136. Methanex, Amicus Curiae Decision, supra note 30,150
137. Tienhaara, supra note 33; Noah Rubins, Opening the Investment Arbitration Process:At
What Cost,for What Benefit? TRANSNAT'L DIsP. MGMT., June 2006.
138. Rubins, supra note 137.
139. Tienhaara, supranote 33.
220 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 29:1

discovery of documents, evidence-taking, and participation in oral arguments,

there could be extra burdens placed on the efficiency of the process. In effect,
there is a risk that opening up the process in this manner would result in the
arbitration procedure becoming "court-like" and losing the attributes of more
cost-efficient and speedy adjudication that parties perceive as a significant
advantage.
Furthermore, the loss of confidentiality and privacy, which is associated
with increased third-party participation, can also have considerable negative side
effects. First, some commentators have suggested that investors may feel
threatened by the fact that increased openness could jeopardize the need to keep
certain information, such as trade secrets, confidential, although it appears that
this issue is most easily resolved through "redaction" or other techniques
commonly used by the courts. 14 0 A more serious issue is that opening the doors
to third-party interveners could potentially "re-politicize" disputes.1 4 1 The
concern here is that third-party involvement could lead to the arbitration
becoming a "court of public opinion." 1 42 Rubins suggests that the resolution "of
disputes in conditions of complete publicity does not lend itself to such
principled outcomes" and points out the possibility of parties making
exaggerated claims in order to "obtain 'nuisance value' compensation." 1 43
Increased publicity could also lead to a lessening of settlement opportunities: as
claims gain exposure to the public domain, the parties could face increased
pressure to continue to the substantive outcome of the case. The State,
especially, could face additional pressure, given its perceived obligation to
protect the right to regulate and the public good generally. 144 This is especially
a risk where a strong public interest lobby supports one side of the dispute. 145
As Rubins concludes, such "increased publicity (particularly one-sided and
argumentative) can ... form a significant barrier to amicable settlement in
investor-State disputes." 1 46
On a more systemic level, there is certainly some concern that infusing the
arbitral process with the perceived disadvantages of costs, delays, loss of
confidentiality, and the corollary of potential politicization could lead to less
investor confidence in the mechanism. As a consequence, there could be a
chilling of FDI flows to less stable nations, which are often the developing

140. Tienhaara, supranote 33.

141. Id.
142. Rubins, supra note 137.
143. Id.
144. Id.
145. Tienhaara, supranote 33.
146. Rubins, supra note 137.
2011] AAHCUS CURIAE IN INT'L INVESTMENTARBITRATION 221

countries most in need of the investments. Professor Vifiuales poignantly

summarizes the dilemma:
[P]ublic legitimacy is a double-edged sword in that, if badly used, amicus
intervention could undermine the very arbitration regime it is supposed to
strengthen. Whereas amicus intervention may help legitimize the overall
arbitration system, such intervention may also erode the traditional basis of
arbitral proceedings, namely the consent of the parties. 147
As the preceding discussion highlights, there are a number of competing
considerations that need to be taken into account in determining whether, and to
what extent, third parties should be permitted to participate in arbitral
proceedings. The broader implication of this discussion is that the current
approach to granting amicus standing, which is largely ad hoc and discretionary,
is not satisfactory to capture the range of issues that are involved.

D. Striking a Balance:Developing Formalized Criteriafor Third-Party

Participationin Investment Disputes

At present, there is no formalized or systematic approach to dealing with

the issue of amicus participation in State-investor arbitration. The only attempts
to create any kind of criteria for third-party participation are evidenced in
amendments to the ICSID Rules, the FTC Statement, and the Canadian Model
BIT. However, these are limited to the submission of briefs, and the FTC
Statement is also not legally binding. 148 In terms of the criteria involved, all
three documents focus on the potential of the amicus brief to assist the tribunal,
the extent to which it would address a matter within the scope of the dispute and
whether the third party has a "significant" interest in the proceedings. 149 The
FTC Statement and the Canadian Model BIT also direct the tribunal to consider
whether a "public interest" exists in the dispute.15 0 While the UNCITRAL
Rules are currently under review to include explicit third-party participation
provisions, it appears that the proposals under consideration are also limited to
submission of written briefs, and comprehensive criteria for amicus participation
will not be included. 151 As such, a number of commentators have described the
current approach as piecemeal and have emphasized the need to further
formalize the status of amicus in investment proceedings. 152

147. Vifluales, supra note 43, at 75.

148. Choudhury, supranote 2, at 809.
149. See FTC Statement, supra note 64; ICSID Rules, supra note 17, art. 37(2); Canadian
Model BIT, supra note 65, art. 39; US Model BIT, supra note 65, art. 28(3).
150. FTC Statement, supra note 64; Canadian Model BIT, supra note 65, art. 39.
151. Tienhaara, supranote 33.
152. Choudhury, supranote 2; VanDuzer, supra note 7.
222 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 29:1

Given the range of different arbitral rules and investment regimes currently
in place, it will undoubtedly be difficult to create a harmonized approach to
third-party participation. However, certain steps can be taken to increase
consistency. First, a set of clear guidelines should be included in the major
regimes and rules that are utilized in investment arbitration: the NAFTA, the
ICSID Convention and/or arbitration rules, the UNCITRAL Rules and the key
model BITs. Notably, in order to distinguish between the rights of amicus curiae
in commercial and in investment arbitration, arbitration rules which are
applicable to both kinds of process, such as the UNCITRAL Rules, should
stipulate that any new provisions on third-party participation apply only where a
State is a party to the arbitration. 15 3 While the processes of amendment for
different instruments involved in the investment arbitration regime are
independent, they tend to be influenced by one another. For instance, the FTC
Statement appears to have had an impact on the amendments to the amicus
provisions in the ICSID Rules. 154 Thus, once some of the central regimes begin
adopting more comprehensive guidelines on amicus participation, there is a
strong chance that a degree of "cross-fertilization" and harmonization will
follow.
In terms of the criteria that should be adopted for third-party intervention, it
is first of all necessary to develop standards that will allow for guaranteed or
mandatory, rather than purely discretionary, right of participation as amicus
curiae. These applicants must be able to satisfy criteria similar to those already
addressed in the ICSID Rules, such as the presence of a significant interest in
the merits of the dispute. Such an approach would certainly require significant
revision to the provisions of many prominent rules, such as the ICSID Rules. At
the same time, it will genuinely address the fact that in circumstances where a
third party has a sufficient interest in the proceedings, it may be necessary from
the perspective of legitimacy to formalize their status rather than leaving the
possibility of participation subject to an ad hoc process.
The tribunal should also be empowered with a structured discretion to
allow for different forms of amicus participation: (a) submission of written
briefs; (b) attendance at hearings, and potentially the making of oral arguments;
and (c) access to some or all of the documents on the record. In determining
whether or not to exercise the discretion to extend participation rights beyond
submission of written briefs, the tribunal should be directed to assess whether an
amicus curiae applicant can demonstrate a direct legal interest in the dispute.

153. See Fiona Marshall & Howard Mann, Revision of the UNCITRAL Arbitration Rules:
Good Governance and the Rule of Law: Express Rules for Investor-State Arbitrations Required,
INT'L INST. FOR SUSTAINABLE DEV. INT'L (2006), available at http://www.iisd.org/pdfl2006/
investment uncitral_rulesrrevision.pdf.
154. Choudhury, supra note 2.
2011] AMCUS CURIAE IN INT'L INVESTMENTARBITRATION 223

Other relevant considerations would include the extent to which a third party can
contribute substantively to the quality of a final award and the extent to which
such contribution is dependent on more extensive intervener rights. Finally, the
criteria should stipulate that the interests and benefits of amicus participation
should not outweigh factors such as unjustifiable burdens of cost and delay.1 55
Any amendments to the rules should also specifically empower the tribunal to
redact inherently confidential materials, such as trade secrets, as well as to limit
the length of written submissions and access to the record, the time allowed for
any oral arguments or for cross-examination of witnesses. Ultimately, beyond
guaranteeing a minimal level of participation where an amicus curiae can satisfy
the tribunal that they have a particular interest, even if only a broad public
interest, in the dispute, arbitrators should be considered competent to weigh up
competing considerations and to determine in particular cases whether "the
added burdens of (broader] amicus involvement are justified." 5 6
Although this approach of expanding third-party participation rights should
be adopted with caution, it appears to represent an appropriate balance between
preserving the traditional features of arbitration and enhancing the systemic
legitimacy of State-investor dispute resolution.

V.
CONCLUSION

In considering the role to be played by third-party interveners in investor-

State arbitral disputes, it is necessary to remain conscious of the fact that the
investment arbitration regime fundamentally differs in character from traditional
commercial arbitration. In many instances, it is imperative for State-investor
arbitration to "satisfy high standards of transparency and openness to non-
disputing party participants." 157 In addition, as the AES case pending before
ICSID highlights, there may be instances where amicus curiae may represent
substantial legal interests that they are mandated to represent, and where their
participation could have broader benefits for both the specific arbitration and the
system as a whole. It is also necessary to be mindful of the ever-present concern
that "should the acceptance of amicus briefs in investor-State arbitration become
widespread, it could render arbitration less attractive to investors." 1 58 A review
of current trends in third-party participation reveals that there is, at present, no
formalized or predictable process to address the interplay of these issues. A

155. Marshall & Mann, supra note 154.

156. Choudhury, supranote 2, at 817.
157. VanDuzer, supra note 7, at 721.
158. Vifluales, supra note 43, at 75.
224 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 29:1

reassessment of the current frameworks for third-party participation is necessary

in order to formalize amicus curiae status in investment arbitration, and thereby
promote the procedural and substantive legitimacy of State-investor dispute
resolution mechanisms.