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4.4.3.2. Active Participation
Amicus curiae is broadly translated as “friend of a court”.…
Notably, amicus curiae never become an active party to the dispute. They only (generally)…
In practice, Schill notes that while tribunals were historically reluctant to accept…
Concerns regarding the provision of amicus participation however linger. Proponents…
1) Costs and delay: One of the reasons parties find ISDS as an attractive dispute resolution system lies in its cost and time effectiveness. Allowing amicus participation, however, increases both. For instance, delay and cost are incurred by the parties in responding to amicus briefs. Similarly, the overall cost and
2) Disclosure of sensitive information: Discussed in detail in part 2 above.…
3) Equal protection and procedural autonomy: Interestingly, investors have raised concerns in certain previous ISDSs regarding the possibility that accepting amicus briefs would undermine the rule of equal procedural protection of both parties.…
Moreover, those who view ISDS solely from the lens of the consent theory argue that…
Indeed, allowing amicus participation imposes the burden to respond to amicus briefs…
4) Impossible to grant uniform access: Unlike concerns mentioned above that are primarily based on considerations of confidentiality, this is more of a criticism of amicus participation itself. It is argued that considerable expenses incurred in amicus participation limit access of non-party stakeholders belonging to developing states, who may, therefore, remain unrepresented in the process. Such concerns, however, are increasingly being recognised and mechanisms are being developed to remedy the issue. For instance, developing states’ NGOs have increasingly begun to collaborate with their counterparts in developed states, especially where the procedural rules of ISDS require the submission of a single brief.…
5) Conflict of interest: Proponents of confidentiality argue that while mechanisms have been made to detect conflicts of interests between parties and arbitrators; the same does not stand true for the non-party stakeholder- arbitrator relationship.While the above considerations do hold merit, they do not justify a complete rejection…
1) Minimising costs and delays: Introducing page limits and time scales in the submission of briefs will minimise costs and delays associated with amicus participation. This is far from a novel proposition as such limits have been adopted by ISDS tribunals in the past,…
Another tool already being employed to reduce costs and delays in this regard is…
Moreover, it is argued that costs and delays associated with amicus participation…
2) Granting uniform access: Requiring third parties to submit a single brief…
It is asserted that incentivising/requiring the submission of a single brief also…
3) Remedying the possibility of a conflict of interests: As discussed above, certain institutional rules already require entities seeking to act as amicus to provide information about themselves. Such information can be used to ascertain whether there is a potential conflict of interest between potential amicus curiae and the arbitrators. Unfortunately, however, these rules have not been developed for identifying conflicts of interest and therefore are not completely fit for this purpose. It is, therefore,
4) Protection of confidential information: While a lot of ink has been spilled…
5) Concerns of unfair prejudice: While it is well established that amicus participation should not “unfairly prejudice any disputing parties”…
Moreover, to the extent to which arbitrators are experienced and objective they would…
However, these submissions might still create an appearance of providing one party…
6) Abuse of process: The possibility of abuse of process if amicus participation is allowed means that discussions do not end with identifying whether non- parties should participate or not. Rather, it continues with the question of the extent to which
a) The standard of proximity of interest. According to this, the non-party stakeholder…
Public interest as used here is two-fold. First, public interest is the interest of those who will be affected by the award, for example, the citizens of the host state. The second type refers to the interest of humanity as a whole, such as environment and human rights issues.…
Personal interest, in contradistinction, refers to those stakeholders that could…
b) Scope of participation: Furthermore, only those amicus submissions that provide…
4.4.3.1.2. Public Hearing
4.4.3.3. Publications of Awards
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