Amici curiae in investor-state arbitrations: two recent decisions.

• Author: Bastin, Lucas
• Position: Of the International Centre for Settlement of Investment Disputes

Abstract

In decisions in the joined arbitrations of von Pezold v Zimbabwe and Border Timbers v Zimbabwe and in the Apotex v United States arbitration, investor-state arbitral tribunals rejected applications by non-disputing parties to participate as amici curiae. Some aspects of the reasoning rejecting the requests were entirely orthodox, such as the tribunals' reliance on the lack of assistance that the amici curiae would provide, their lack of an interest in the dispute and their inability to address an issue within the scope of the dispute. However, the decision in von Pezold/Border Timbers v Zimbabwe also used an unorthodox reason for rejecting the amici curiae request, namely that amici curiae must satisfy a criterion of 'apparent independence'. In doing so, the tribunal rejected the amici curiae request on a basis which was both unprecedented in investor-state arbitration and questionable in its approach to textual interpretation and the consequences it generated.

I Introduction

The extent to which amici curiae have been able to participate in the different international dispute resolution fora varies according to the procedural rules which govern each particular forum. Amici curiae have thus achieved little success in penetrating the dispute resolution procedures of the International Court of Justice, the World Trade Organization or the International Tribunal for the Law of the Sea. (1) By contrast, amici curiae have received broader participation rights in other fora, such as the European Court of Human Rights and the international criminal tribunals. (2) This diversity of reception of amici curiae is, ultimately, a reflection of Sir Arthur Watts' observation that procedural questions--of which the scope granted to amici curiae to participate in international litigation is one--'can in practice only be pursued on a tribunal-by-tribunal basis'. (3)

Diversity of treatment of amici curiae can also exist within a single category of international dispute resolution. Such is the case for investor-state arbitrations. In these arbitrations, amici curiae have had varying fortunes. The earliest applications by amici curiae to participate in investor-state arbitrations resulted in significant uncertainty about whether and to what extent they should be permitted to participate. In the earliest two applications, amici curiae were granted rights to file written submissions, but no other rights to participate (such as access to case materials or oral hearings). (4) The next attempt to participate was rejected outright. (5) This treatment prompted criticism that the investor-state arbitration system was secretive (6) and, at least partly in response to this criticism, (7) key instruments governing such arbitrations were clarified or amended to allow amici curiae greater access to the system. (8) The result was that, from mid-2006 to mid-2011, amici curiae were almost uniformly successful in acquiring participation rights in investor-state arbitration (albeit typically only the right to file written submissions). (9)

This trend towards increasing tolerance for amici curiae has become a feature of the investor-state system. However, the most recent considerations of amici curiae requests have militated against the trend. In 2011, a number of amici curiae requests were rejected. These rejections, and the reasoning supporting them, were unsurprising in the circumstances of the cases. Thus, for instance, in the Apotex v United States arbitration commenced under the UNCITRAL Arbitration Rules, a management consultancy was refused participation rights on the basis that the would-be amicus curiae had 'not pointed to any knowledge, experience or expertise' that it would bring to the arbitration, had 'not defined any significant interest in this arbitration', and had 'failed to explain the particular public interest it would be seeking to address'. (10) Comparably, the non-governmental organisations ('NCOS') seeking amicus curiae status in Chevron v Ecuador did not receive it because they were deemed ill-equipped to comment on the jurisdictional matters at issue in that arbitration. (11) Reliance on the inability of the amici curiae in these cases to assist the tribunal was an orthodox basis on which to reject their applications to participate--such a basis is, for instance, present in r 37(2) of the ICSID Arbitration Rules and in the NAFTA FTC Statement. (12)

The two most recent decisions on applications by amici curiae to participate have tested not only the trend towards their inclusion in investor-state arbitrations but also the commitment of investor-state tribunals to the conventional means of deciding such applications. These decisions were rendered in the joined arbitrations of von Pezold v Zimbabwe and Border Timbers v Zimbabwe and in the Apotex v United States arbitration commenced pursuant to the ICSID Arbitration Rules. This article first summarises the background to the cases, the content of the amici curiae requests and the content of the decisions refusing those requests. It then provides a critical commentary of the decisions, before offering a brief conclusion.

II The Two Recent Decisions

A The Decision in von Pezold/Border Timbers v Zimbabwe

The first of the two recent decisions concerning amicus curiae participation in investor-state arbitrations was rendered in the joined arbitrations of von Pezold v Zimbabwe and Border Timbers v Zimbabwe, (13) The arbitrations concern complaints that Zimbabwe expropriated the claimants' large agricultural estates allegedly on the basis that they had been targeted as part of the state's well-known land reform process. (14) A few months after the claimants had filed their Memorial on the Merits, an NGO and several Zimbabwean indigenous communities sought permission jointly to participate as amici curiae in the arbitrations. In particular, they sought to file a joint written submission, to access key case materials and to attend the oral hearing and reply to questions posed by the tribunal. (15)

Both arbitrations had been commenced pursuant to the ICSID Arbitration Rules with the result that r 37(2) applied to determine the request to participate as amici curiae. That Rule allowed tribunals to permit amici curiae to file written submissions 'regarding a matter within the scope of the dispute', after the tribunal considered (non-exhaustively) whether: (i) the submission would assist it in determining a factual or legal issue related to the proceedings by bringing a perspective or particular knowledge or insight different from that of the parties; (ii) the submission would address a matter within the scope of the dispute; and (iii) the amicus curiae has a significant interest in the proceeding. Rule 37(2) also required the tribunal to ensure that the submission did not disrupt the proceeding or unduly burden or unfairly prejudice either party, and that the parties were able to comment on the submission.

The tribunal rejected the request to participate as amici curiae outright. It did so on two bases. The first was that the would-be amici curiae had not demonstrated that their submission would assist the tribunal in determining a factual or legal issue related to the proceedings, would address a matter within the scope of the dispute, or would flow from any significant interest they had in the proceeding. (16) This basis for rejecting the request was thus entirely orthodox. It applied the prescribed considerations for the determination of a request to participate as amid curiae in ICSID Arbitration Rule 37(2), and the inability of the NGO and indigenous communities to demonstrate that they satisfied this rule meant that the tribunal was 'not persuaded' to grant them the requested participation rights. (17) However, the second basis on which the tribunal...