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Revisiting NGO Participation in WTO and Investment Dispute Settlement: From Procedural Arguments to (Substantive) Public Interest Considerations

Published online by Cambridge University Press:  09 March 2016

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Summary

A nuanced analysis of relevant decisions suggests that some investment dispute settlement tribunals have gone beyond the World Trade Organizations (WTO) largely procedural approach to non-governmental organization (NGO) participation in their proceedings and have adopted a relatively more substantive approach. This article suggests that this difference of approach stems from three characteristic differences between international trade and foreign investment — the political economy of the international trade and foreign investment orders, the substantive effects of trade and investment activities, and their dispute settlement mechanisms. However, these general differences are by themselves insufficient to justify excluding a substantive public interest approach to NGO participation at the WTO, especially in view of the fact that WTO tribunals have conceded limited participatory privileges to these non-state actors.

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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2007

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References

1 The definition of non-governmental organizations (NGOs) is a controversial subject and there is no single accepted definition of such organizations. References to NGOs in this article includes non-profit and non-governmental groups, including individuals, appearing (or seeking to appear) before international tribunals. Such references do not include profit-seeking corporations and organizations. For a recent representative statement on the vast literature on NGOs and international law, see Charnovitz, Steve, “Nongovernmental Organizations and International Law” (2006) 100 A.J.I.L. 348.Google Scholar

2 For example, some NGOs have observer status before the African Commission on Human and Peoples’ Rights. See Udombana, Nsongurua J., “So Far, So Fair: The Local Remedies Rule in the Jurisprudence of the African Commission on Human and Peoples’ Rights” (2003) 97 A.J.I.L. 1.Google Scholar

3 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, (1965) 5 I.L.M 532 [ICSID Convention]; and ICSID Arbitration Rules, ICSID/15, April 2006.

4 For documents related to Glamis Gold Ltd. v. United States of America, including non-disputing parties’ submissions and the tribunal’s procedural orders, see United States Department of State, <http://www.state.gov/documents/organization/54364.pdf> [Glamis Gold].

5 Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, Procedural Order No. 3, ICSID Case No. ARB/05/22 (29 September 2006), <http://worldbank.org/icsid/cases/arbo522_procedural_order3.pdf>. See the decision on non-disputing party participation, Procedural Order No. 5 (2 February, 2007), <http://www.worldbank.org/icsid/cases/pdf/ARB0522_ProceduralOrdNO5.pdf>.

6 Economic ideas shape the “global political economy,” a phrase that has been defined as “the interaction of the market and such powerful actors as states, multinational firms and international organizations.” See Gilpin, Robert, Global Political Economy: Understanding the International Economic Order (Princeton: Princeton University Press, 2001) at 1718.Google Scholar

7 Within the last ten years, there has been a proliferation of international investment agreements (IIAs). By 2005, more than 2,400 bilateral investment treaties and 200 free trade agreements with investment provisions had been concluded. See United Nations Conference on Trade and Development (UNCTAD), “Research Note: Recent Developments in International Investment Agreements,” Doc. UNCTAD/WEB/ITE/IIT/2005/1 (30 August 2005), <http://www.unctad. org/sections/dite_dir/docs/webiteiit20051_en.pdf>.

8 Gilpin, Robert, The Political Economy of International Relations (Princeton: Princeton University Press, 1987) at 172–89.CrossRefGoogle Scholar Other possible approaches to trade and investment include Marxism and some Third World approaches to international law (TWAIL) perspectives. For descriptions of liberalism, nationalism, and Marxism as political economic ideologies, see generally Gilpin (at 25–64). For expositions on the tenets of the TWAIL perspective, see Mutua, Makau wa, “What Is TWAIL?” (2000) 94 A.S.I.L. Proc. 31 Google Scholar; and Okafor, Obiora Chinedu, “Newness, Imperialism and International Legal Reform in Our Time: A TWAIL Perspective” (2005) 43 Osgoode Hall L.J. 171.Google Scholar

9 Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, (1994) 33 I.L.M. 1125 [WTO Agreement].

10 North American Free Trade Agreement, 17 December 1992, (1993) 32 I.L.M. 289 [NAFTA].

11 See generally Dolzer, Rudolf and Stevens, Margrete, Bilateral Investment Treaties (The Hague: Kluwer Law International, 1995).Google Scholar

12 See Petersmann, Ernst-Ulrich, The GATT/WTO Dispute Settlement: International Law, International Organizations and Dispute Settlement (London: Kluwer Law International, 1997) at 165,Google Scholar for a discussion of the WTO as a model for other international organizations in a liberal international order. For a critique of liberal theory of international trade, see Strange, Susan, “Protectionism and World Politics” (1985) 39 Int’l Org. 233.CrossRefGoogle Scholar

13 Vandevelde, Kenneth, “The Political Economy of a Bilateral Investment Treaty” (1998) 92 A.J.I.L. 621.Google Scholar

14 Vandevelde, Kenneth, “Investment Liberalization and Economic Development: The Role of Bilateral Investment Treaties” (1998) 36 Colum. J. Transnt’l L. 501.Google Scholar On the political economy of foreign investment, see generally Gilpin, Robert, U.S. Power and the Multinational Corporation: The Political Economy of Foreign Direct Investment (London: Macmillan, 1975).CrossRefGoogle Scholar

15 Vandevelde, supra note 14 at 510–13.

16 General Agreement on Tariffs and Trade, 30 October 1947, 55 U.N.T.S. 187 [GATT]; GATT 1994, Annex 1 A to the WTO Agreement, supra note 9.

17 See generally Das, Dilip K., The Doha Round of Multilateral Trade Negotiations: Arduous Issues and Strategic Responses (New York: Palgrave Macmillan, 2005).CrossRefGoogle Scholar

18 In arguing for greater NGO participation at the World Trade Organization (WTO), G. Richard Shell states unequivocally that he is “an international rela-tions ’liberal,’” while those (Phillip Nichols) who urge control of trade matters by states and diplomats are trade realists. See Richard Shell, G., “The Trade Stakeholders Model and Participation by Nonstate Parties in the World Trade Organization” (1996) 17 U. Pa. J. Int’l Econ. L. 359 at 371.Google Scholar

19 This position is generally attributable to constructivist international relations theory. For a concise introduction to constructivism’s main arguments, see Hopf, Ted, “The Promise of Constructivism in International Relations Theory” (1998) 23 Int’l Security 171 CrossRefGoogle Scholar; and Reus-Smit, Christian, “Constructivism,” in Burchill, Scott et al, Theories of International Relations (New York: Palgrave Macmillan, 2005), 108.Google Scholar

20 Wells, Louis T. Jr., “Foreign Direct Investment,” in Lindauer, David L. and Roemer, Michael, eds., Asia and Africa: Legacies and Opportunities in Development (San Francisco: Institute for Contemporary Studies, 1994), 337 at 341Google Scholar; and Gallagher, Kevin P. and Zarsky, Lyuba, “No Miracle Drug: Foreign Direct Investment and Sustainable Development,” in Zarsky, Lyuba, ed., International Investment for Sustainable Development: Balancing Rights and Rewards (London: Earthscan, 2005), 13.Google Scholar

21 See generally Bernasconi-Osterwalder, Nathalie et al., Environment and Trade: A Guide to WTO Jurisprudence (London: Earthscan, 2006).Google Scholar

22 See Aguas del Tunari, S.A., v. Republic of Bolivia, ICSID Case No. ARB/02/3, (2005) 20 ICSID Rev.-FILJ 445 [Aguas del Tunari].

23 Glamis Gold, supra note 4. See especially, Glamis Gold Ltd. v. United States of America, Application for Leave to File a Non-Party Submission: Submission of the Quechan Indian Nation, 19 August 2005, United States Department of State, <http://www.state.gov/documents/organization/ 52531 .pdf>.

24 United States – Import Prohibition of Certain Shrimp and Shrimp Products, Appellate Body Report, WTO Doc. WT/DS58/AB/R (12 October 1998) at para. 101 [US – Shrimp, Appellate Body Report]. For an argument on refusing standing to NGOs in WTO dispute settlement, see Nichols, Phillip, “Extension of Standing in World Trade Organization Disputes to Nongovernmental Parties” (1996) 17 U. Pa. J. Int’l. Econ. L. 295.Google Scholar In contrast, see Richard Shell, G., “Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization” (1995) 44 Duke L.J. 829.CrossRefGoogle Scholar Nichols critiques Richard Shell’s “trade stakeholder model,” which argues for the participation of all parties with a stake in trade policy in dispute settlement. In spite of Nichols’s argument against NGO standing, I do not read him as taking a position against the acceptance of amicus curiae briefs. He opines that expanding standing to non-WTO members is not merely procedural, whereas the submission of amicus curiae briefs is understood as a matter of procedure. For a reply to Nichols, see Shell, supra note 18.

25 Dunoff, Jeffrey L., “Civil Society at the WTO: The Illusion of Inclusion?” (2001) 7 I.L.S.A. J. Int’l & Comp. L. 275 Google Scholar; and Dunoff, Jeffrey L., “The WTO in Transition: Of Constituents, Competence and Coherence” (2001) 33 Geo. Wash. Int’l L. Rev. 979.Google Scholar

26 United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, Appellate Body Report, WTO Doc. WT/DS138/AB/R (10 May 2000) at para. 41 [US – Lead and Bismuth II].

27 The majority of the literature on this subject focus on trade and not investment. See Charnovitz, Steve, “Participation of Nongovernmental Parties in the World Trade Organization: Participation of Nongovernmental Organizations in the World Organization” (1996) 17 U. Pa. J. Int’l Econ. L. 331 Google Scholar; and Esty, Daniel, “Linkages and Governance: NGOs at the World Trade Organization” (1998) 19 U. Pa J. Int’l Econ. L. 709.Google Scholar

28 Charnovitz, Steve, “WTO Cosmopolitics” (2002) 34 N.Y.U. J. Int’l L. & Pol. 299.Google Scholar

29 On NGO participation in the international order, see generally Charnovitz, Steve, “Two Centuries of Participation: NGOs and International Governance” (1997) 18 Mich. J. Int’l L. 183 Google Scholar; and Charnovitz, supra note 1.

30 Shelton, Dinah, “The Participation of Nongovernmental Organizations in International Judicial Proceedings” (1994) 88 A.J.I.L. 611 at 618.Google Scholar

31 United States – Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, infra note 54 and accompanying text.

32 See the (American) National Mining Association’s Application to File a Non-Disputing Party Submission in Glamis Gold Ltd v. United States of America, 13 October 20O6, <http://www.state.gov/documents/organization/ 75178 .pdf>; and US – Lead and Bismuth II, supra note 26.

33 Charnovitz, Steve, “The WTO and Cosmopolitics,” in Petersmann, Ernst-Ulrich, ed. (with the assistance of James Harrison), Reforming the World Trading System: Legitimacy, Efficiency and Democratic Governance (Oxford: Oxford University Press, 2005), 437 at 442.CrossRefGoogle Scholar See also Charnovitz, Steve, “Opening the WTO to Nongovernmental Interests” (2000) 24 Fordham Int’l L.J. 173 at 210Google Scholar (stating that “the value of an NGO’s input is its ideas”).

34 See Organization for Economic Cooperation and Development (OECD), Transparency and Third Party Participation in Investor-State Dispute Settlement Procedures, Working Papers on International Investment, No. 1/ 2005, April 2005, <http://www.oecd.org/dataoecd/25/3/34786913.pdf> at para. 1.

35 GATT, supra note 16. See, for example, US – Shrimp, Appellate Body Report, supra note 24 at para. 186. It is important to note that human rights are not included as a separate category under Article XX. For a general discussion of Article XX and its chapeau, see Condon, Bradly J., Environmental Sovereignty and the WTO: Trade Sanctions and International Law (Ardsley, NY: Transnational Publishers, 2006).CrossRefGoogle Scholar

36 In addition to Article 104 of NAFTA, supra note 10, and the general exceptions that are drawn from the experience and provisions of the GATT, supra note 16, NAFTA provides for a side agreement on the environment.

37 Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal S.A. v. The Argentine Republic, Order in Response to a Petition for Transparency and Participation as Amicus Curiae, ICSID Case No. ARB/03/19) (19 May 2005) at para. 19 [Aguas Argentinas].

38 United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, approved by the UN General Assembly, 15 December 1976, (1976) 15 I.L.M. 701.

39 Understanding on Rules and Procedures Governing the Settlement of Disputes, contained in the WTO Agreement, supra note 9 at Annex 2 [DSU].

40 DSU, supra note 39 at Articles 12(1)-(2), 13, and 17(9). These articles are broad provisions that could be interpreted in a manner that allows NGO submissions or participation in WTO dispute settlement proceedings.

41 See DSU, supra note 39 at Articles 4(6), 5(2), 13(1), 14(1), 17(1), and 18(2).

42 See generally Cawley, Jared B., “Friend of the Court: How the WTO Justifies the Acceptance of the Amicus Curiae Brief from Non-Governmental Organizations” (2004–5) 23 Penn St. Int’l L. Rev. 47.Google Scholar However, see Slotboom, Marco M., “Participation of NGOs before the WTO and EC Tribunals: Which Court Is the Better Friend?” (2006) 5 World Trade Rev. 69,CrossRefGoogle Scholar where the author argues that NGOs should not be allowed to participate as amicus curiae before the WTO.

43 United States – Import Prohibition of Certain Shrimp and Shrimp Products, Panel Report, WTO Doc. WT/DS58/R ( 15 May 1998) at para 7.8 [US – Shrimp, Panel Report].

44 US – Shrimp, Appellate Body Report, supra note 24 at paras. 79–91 and 99–110. See McRae, Donald M., “The WTO in International Law: Tradition Continued or New Frontier?” (2000) 3 J. Int’l Econ. L. 27 at 33–35.CrossRefGoogle Scholar The Appellate Body decision on amicus briefs in US – Shrimp was adopted by a panel in Australia – Measures Affecting Importation of Salmon, Recourse to Article 21.5 of the DSU by Canada, Panel Report, Doc. WT/DS18/RW (18 February 2000).

45 See European Communities-Measures Concerning Meat and Meat Products (Hormones), Appellate Body Report, WTO Doc. WT/DS26/AB/R and WTDS48/AB/R (16 January 1998), for an earlier Appellate Body statement on the limits of arguments that panels can adopt in resolving claims. The Appellate Body found that these arguments could extend beyond those that disputing parties advance in making their cases before panels.

46 US – Lead and Bismuth II, supra note 26 at paras. 36–42.

47 For a review of the amicus curiae decision in this case, see Appleton, Arthur E., “The Amicus Curiae Submissions in the Carbon Steel Case: Another Rabbit from the Appellate Body’s Hat” (2000) 3 J. Int’l Econ. L. 691.CrossRefGoogle Scholar

48 US – Lead and Bismuth II, supra note 26 at para. 39.

49 Ibid. at paras. 40–42.

50 European Communities – Measures Affecting Asbestos and Asbestos Containing Products, Panel Report, Doc. WT/DS135/R (18 September 2000) at paras. 6.1-6.4 and 8.12-8.14 [EC – Asbestos, Panel Report].

51 Working Procedures for Appellate Review, Doc. WT/DS135/8, 23 October 2000. European Communities – Measures Affecting Asbestos and Asbestos Containing Products, Appellate Body Report, Doc. WT/DS135/AB/R (12 March 2001) at paras 5057 [EC – Asbestos, Appellate Body Report]. See Zonnekyn, Geert, “The Appellate Body’s Communication on Amicus Curiae Briefs in the Asbestos Case: An Echternach Procession?” (2001) 35 J. World Trade 553.CrossRefGoogle Scholar On suggestions for criteria to guide the acceptance of amicus curiae briefs, see Marceau, Gabrielle and Stilwell, Matthew, “Practical Suggestions for Amicus Curiae Briefs before WTO Adjudicating Bodies” (2001) 4. J Int’l Econ. L. 155.CrossRefGoogle Scholar

52 The Appellate Body’s rules of procedure for accepting non-disputing party briefs in this case generated some controversy. On the concern of some Third World states over the Appellate Body’s approach to amicus curiae submissions, see WTO General Council, Minutes of Meeting, Doc. WT/GC/M/60 (22 November 2000). Robert Howse has insightfully noted that “one should be skeptical of the view that developing countries are the true ’enemies’ of amicus practice; it is really the trade ’Club’ that is the enemy, and the Club has made developing countries that canon fodder of the amicus fight.” Howse, Robert, “Membership and Its Privileges: The WTO, Civil Society, and the Amicus Brief Controversy” (2003) 9 Eur. L.J. 496 at 509.CrossRefGoogle Scholar

53 European Communities – Anti-Dumping Duties on Imports of Cotton Type Bed Linen from India, Panel Report, WTO Doc. WT/DS141/R (30 October 2000) at para. 6.1, note 10.

54 United States – Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, Appellate Body Report, WTO Doc. WT/DS58/ AB/RW2 (2 October 2001) at paras. 75-78. The panel’s decision on amicus briefs is similar. See United States – Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, Panel Report, WTO Doc. WT/DS58/RW (15 June 2001).

55 European Communities – Trade Description of Sardines, Appellate Body Report, WTO Doc. WT/DS231/AB/R (26 September 2002) at paras. 153–70.

56 Ibid. at para. 170. Several other WTO reports that have commented on participation as amicus curiae. These include Brazil – Measures Affecting Imports of Retreaded Tyres, Panel Report, WTO Doc. WT/DS332/R (12 June 2007); Thailand – Anti-Dumping on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-beams from Poland, Appellate Body Report, WTO Doc. WT/DS122/AB/R (12 March 2001); United States – Final Determination with Respect to Certain Softwood Lumber from Canada, Panel Report, WTO Doc. WT/DS/257/R (29 August 2003) at paras. 5.54-5.56; and United States – Final Determination with Respect to Certain Softwood Lumber from Canada, Appellate Body Report, WTO Doc. WT/DS/257/AB/R (19 January 2004) at paras. 9 and 42. In another move towards a transparent dispute settlement system, the meeting of the panel with the parties on 12–15 September 2005 in Canada – Continued Suspension of Obligations in the EC-Hormones Dispute (Dispute DS321 ) was open to the public through closed-circuit television broadcast.

57 Methanex Corporation v. United States of America, Final Award of the Tribunal on Jurisdiction and Merits, UNCITRAL (3 August 2005), (2005) 44 I.L.M. 1345 [Methanex].

58 See generally Mann, Howard, “Opening the Doors, at Least a Little: Comment on the Amicus Decision in Methanex v. the United States ” (2001) 10 R.E.C.E.I.L. 241.Google Scholar

59 Methanex Corporation v. United States of America, Petition to the Arbitral Tribunal Submitted by the International Institute for Sustainable Development, UNCITRAL (25 August 2000). Methanex Corporation v. United States of America, Joint Motion to the Tribunal Regarding the Petitions for Amicus Curiae Status, UNCITRAL (31 January 2003) at para. 20, <http://www.state.gov/documents/ organization/ 17769.pdf>.

60 Methanex Corporation v. United States of America, Decision of the Tribunal on Petitions from Third Persons to Intervene as “Amici Curiae,” UNCITRAL ( 15 January 2001 ) at para. 49.

61 An example of such procedural rules is provided by the “Statement of the [NAFTA] Free Trade Commission on Non-disputing Party Participation” dis-cussed in the third part of this article.

62 Mann, Howard, “The Final Decision in Methanex v. United States: Some New Wine in Some New Bottles” (August 2005), <http://www.iisd.org/pdf/2005/ commentary_methanex.pdf>..>Google Scholar

63 For the specific requests, see United Parcel Service of America Inc. v. Government of Canada, Petition to the Arbitral Tribunal, UNCITRAL (10 May 2001), DFAIT <http://www.dfait-maeci.gc.ca/tna-nac/documents/petitiontothearbitral tribunalCUP.pdf>. On 20 October 2005, the Chamber of Commerce of the United States applied for amicus status and made amicus submissions. See DFAIT <http://www.dfait-maeci.gc.ca/tna-nac/documents/UPSdoc1 .pdf>.

64 United Parcel Service of America Inc. v. Government of Canada, Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae, UNCITRAL (17 October 2001 ), DFAIT <http://www.dfait-maeci.gc.ca/tna-nac/documents/ IntVent_oct.pdf> at paras. 35–43.

65 Ibid. at para. 70. In a subsequent “Procedural Directions on Amicus Submissions” issued on 4 April 2003, the tribunal declared that the parties make copies of their current and future pleadings available to the petitioners.

66 Ibid. at para. 65.

67 Aguas del Tunari, supra note 22.

68 See ibid. at Appendix III.

69 Aguas Agrentinas, supra note 37. The proceedings with respect to Aguas Argentinas were discontinued on 14 April 2006. See Procedural Order No. 1 Concerning the Discontinuance of Proceedings with Respect to Aguas Argentinas, ICSID Case No. ARB/03/19 (14 April 2006), <http://worldbank.org/icsid/cases/ARB-03-19-PO-N01 .pdf>.

70 Aguas Argentinas, supra note 37 at para. 1 .

71 Ibid. at paras. 4–7. In the observations of 11 March 2005, the claimants refused to grant consent to the petitioners to attend the hearings.

72 Ibid. at para. 25. The conditions are similar to those in the statement of the North American Free Trade Commission on Non-Disputing Party Participation (7 October 2003), <http://www.dfait-maeci.gc.ca/nafta-alena/Nondisputing-en.pdf> [FTC Statement], which the tribunal expressly acknowledged that it was drawing on.

73 Ibid. at paras. 19–20.

74 Aguas Argentinas, Order in Response to a Petition by Five Non-Governmental Organizations for Permission to Make an Amicus Curiae Submission (12 February 2007) <http://www.worldbank.org/icsid/cases/pdf/ARB0319_ ORDER.pdf>.

75 Aguas Provinciales de Santa Fe S.A., Suez, Sociedad General de Aguas de Barcelona S.A. and InterAguas Servicios Integrales de Agua S.A. v. Argentine Republic, Order in Response to a Petition for Participation as Amicus Curiae, ICSID Case No. ARB/ 03/17 (17 March 2006) at para. 1. The proceedings with regard to Aguas Provinciales were discontinued on 14 April 2006. See Procedural Order No. 1 Concerning the Discontinuance of Proceedings with Respect to Aguas Provinciales de Santa Fe S.A. of April 14, 2006, <http://www.worldbank.org/ icsid/cases/ARB-03-17-PO-NO 1 .pdf>.

76 Ibid. at para. 33.

77 Biwater Gauff, Procedural Order No. 5, supra note 5 at paras. 51–55.

78 Ibid. at para. 64.

79 ICSID, “Possible Improvements of the Framework for ICSID Arbitration,” ICSID Secretariat Discussion Paper (22 October 2004), <http://www.worldbank.org/ icsid/highlights/improve-arb.htm>; and Howard Mann et al., “Comments on ICSID Discussion Paper: ’Possible Improvements of the Framework for ICSID Arbitration’” (December 2004), <http://www.iisd.org/pdf/2004/ investment_icsid_response.pdf>.

80 Statement of Canada on Open Hearings in NAFTA Chapter Eleven Arbitrations, DFAIT, <http://www.dfait-maeci.gc.ca/nafta-alena/open-hearing-en.asp>.

81 NAFTA, supra note 10 at Article 2001.

82 FTC Statement, supra note 72.

83 Ibid. at Article B(6)(d).

84 Aguas Argentinas, supra note 37 at para. 25.

85 Glamis Gold, supra note 4. See United States Department of State, <http://www.state.gov/s/1 /c10986.htm>, for other groups that filed applications for leave to submit amicus curiae briefs.

86 Methanex Corporation v. United States of America, Application for Amicus Curiae Status by the International Institute for Sustainable Development, UNCITRAL (9 March 2004) at para. 3.

87 NAFTA Free Trade Commission, “Notes on Interpretation of Certain Chapter 11 Provisions” (31 July 2001), <http://www.dfait-maeci.gc.ca/tna-nac/NAFTA-Interpr-en.asp>.

88 FTC Statement, supra note 72 at Article A( 3). See Howard Mann, “The Free Trade Commission Statements of October 7, 2003 on NAFTA’s Chapter 11: Never-Never Land or Real Progress?” <http://wrww.iisd.org/pdf/2003/ trade_ftc_comment_oct03.pdf> at 3.

89 Foreign Affairs and International Trade Canada (DFAIT), “Canada’s FIPA Model,” 20 May 2004, <http://www.dfait-maeci.gc.ca/tna-nac/what_fipa-en.asp#structure> at Article 19 [Canadian FIPA Model].

90 Ibid. at Article 38.

91 Office of the United States Trade Representative (USTR), “U.S. Model Bilateral Investment Treaty (BIT),” November 2004, <http://www.ustr.gov/ Trade_Sectors/Investment/Model_BIT/Section_Index.html> [US Model BIT].

92 See, for example, Treaty between the United States of America and the Oriental Republic of Uruguay Concerning the Encouragement and Reciprocal Protec-tion of Investment, 25 October 2004, <http://ustr.gov/assets/Trade_ Agreements/BIT/Uruguay/asset_upload_file748_9005.pdf> at Article 28(3).

93 See, for example, the FTAs between the United States and Morocco, Singapore, and Chile. These documents are available on the Office of the United States Trade Representative website at <http://www.ustr.gov>.

94 Salacuse, Jeswald W., “BIT by BIT: The Growth of Bilateral Investment Treaties and Their Impact on Foreign Investments in Developing Countries” (1990) 24 Int’l Lawyer 655 at 663.Google Scholar

95 ICSID Convention, supra note 3 at Article 6(1 )(c).

96 For a concise statement on the benefits and problems of NGOs’ role in international law, see Charnovitz, supra note 29 at 274–78.

97 McDougal, Myers S., Lasswell, Harold D., and Reisman, W. Michael, “The World Constitutive Process of Authoritative Decision,” in McDougal, Myers S. and Reisman, W. Michael, eds., International Law Essays: A Supplement to International Law in Contemporary Perspective (Mineola, NY: Foundation Press, 1981), 191 at 21922 and 267–69.Google Scholar

98 Chen, Lung-Chu, An Introduction to Contemporary International Law: A Policy Oriented Perspective, 2nd edition (New Haven: Yale University Press, 2000) at 6972.Google Scholar

99 Charnovitz, supra note 1 at 352–55.

100 Ibid. at 357–62.

101 These potential dangers and responses to them, formed part of the Nichols/ Shell debate mentioned earlier in this article. See note 24 in this article for the articles by Nichols and by Shell.

102 Charnovitz, supra note 28 at 320.

103 Grossman, Claudio and Bradlow, Daniel D., “Are We Being Propelled towards a People-Centered Transnational Legal Order?” (1993) 9 Am. U. J. Int’l L. & Pol’y 1.Google Scholar

104 For an individualist response to the statist perspective of the WTO, see Charnovitz, “Opening the WTO,” supra note 33 at 197–212.

105 Several investment dispute settlement tribunals have drawn on WTO insight in addressing amicus curiae participation. See, for example, the decisions on amicus curiae submissions in Methanex, supra note 6O and Aguas Argentinas, supra note 37.

106 It is acknowledged that BITs and NAFTA are not completely pro-environmental protection, but, relative to the WTO Agreement, supra note 9, they some-times constitute more acceptable documents to environmentalists.

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