Investment Treaty Arbitration Update

26 September, 2017

The role of an amicus curiae in an investment treaty arbitration continues to be an issue of interest in the field. The past three years or so have seen a number of interesting decisions on the issue. This note introduces those recent developments, and points the reader to three previous contributions that deal with the older history of this topic.

The procedural mechanism by which amici curiae participate in an investment treaty arbitration differs depending on the arbitral forum in which the dispute is brought. The relevant provisions of the most recent iterations of the ICSID Arbitration Rules and UNCITRAL Arbitration Rules regulate the issue specifically, and bespoke regulations connected with certain Free Trade Agreements (such as NAFTA and CAFTA-DR) also cover the topic. When considering whether and how an amicus curiae might be permitted to participate, it is to these governing instruments that one must first look. They establish the rules that tribunals then apply when determining whether, and if so to what extent, an amicus curiae might participate.

This note does not provide a comprehensive review of the different ways in which arbitral fora and certain treaties have regulated the admission criteria. That has been done elsewhere in scholarship, and has been addressed in summary form in the below three contributions. Nor does this note address the first decade or so of tribunal decisions about the participation of amici curiae in investment treaty arbitration. That topic has again been covered elsewhere, and is a key focus of the below three contributions. What this note does is seek briefly to confirm whether a core conclusion permeating the below contributions continues to be correct, namely, that tribunals have been permissive of the participation of amici curiae in investment treaty arbitrations, albeit within limits that protect procedural efficiency in the arbitration.

In the past three years or so since the below contributions were completed, amici curiae have continued to seek to participate in investment treaty arbitrations. While the lack of universal publicity of relevant materials means one can never be sure whether all instances of such participation are known, there have been at least five.

First, in Eli Lilly v Canada, the tribunal received applications to file nine amici curiae briefs from a total of 25 entities. It accepted six briefs, each focused on the legality of Canadian patent laws. Two of the briefs were, notably, to be filed by professional organisations of which the claimant was a member. The tribunal held that this relationship did not necessarily impair the independence of the two would-be amici curiae, and admitted the briefs on the basis they would assist the tribunal in determining a factual or legal issue related to the arbitration by bringing fresh perspective, knowledge or insight.

Secondly, in Philip Morris v Uruguay, the tribunal received four applications to file amici curiae briefs. It rejected two due in part to their having been made belatedly and in part because one would not bring fresh perspective, knowledge or insight to the case and the other because it was made by an entity not truly independent of the claimant. The two it admitted were from the World Health Organization and the Pan-American Health Organization. It cited the benefits to public transparency in allowing the applications, and also the utility of the particular knowledge and expertise that the WHO and PAHO would offer the tribunal on relevant matters.

Thirdly, in LSF-KEB v Korea, the tribunal received an application from one amicus curiae to participate, but only very shortly before the hearing in the hearing in the third and final phase of the case. The belated timing of the application meant that the tribunal rejected the application, emphasising the burden and prejudice that would be visited upon the parties should the application be allowed.

Fourthly, in Infinito Gold v Costa Rica, the tribunal received an application from one of the archetypal amici curiae in investment treaty arbitration, namely, an environmental NGO based in the host State. The tribunal admitted the application, and interestingly noted in doing so that the NGO was in fact the moving party in domestic proceedings that had resulted in the revocation of the claimant’s mining licence in the country.

Finally, in Bear Creek Mining v Peru, the tribunal received two applications for amici curiae participation. It admitted the application made by an NGO and lawyer to explain the connection between the claimant and an indigenous community, but rejected an application made by the Columbia Centre on Sustainable Investment, by reference to whether each application would assist the tribunal.

The conclusion to draw from these recent decisions is that tribunals continue to be permissive of amici curiae applications, provided they are made in a timely fashion and would assist the tribunal in determining a factual or legal issue related to the arbitration by bringing fresh perspective, knowledge or insight. If an application does not achieve this requisite level of utility, considerations of procedural efficiency will militate against the admission of the application.

The three previous contributions are available here, here and here.