¹ See generally Douglas, Z, ‘The Hybrid Foundations of Investment Treaty Arbitration’ (2003) 74 BYIL 151Google Scholar; Cremades, B and Cairns, D, ‘The Brave New World of Global Arbitration’ (2002) 3 J of World Investment 2, 173Google Scholar; R Dolzer and C Schreuer, Principles of International Investment Law (OUP, Oxford, 2008); C McLachlan, L Shore and M Weininger, International Investment Arbitration: Substantive Principles (OUP, Oxford, 2007); G Van Harten, Investment treaty Arbitration and Public Law (OUP, Oxford, 2007).

² Douglas ibid 152.

³ This article defines international commercial arbitration as international arbitration that covers disputes arising from relationships of a commercial nature (see, UNCITRAL, ‘UNCITRAL Model Law on International Commercial Arbitration 1985: With amendments as adopted in 2006’ <http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf> accessed 1 March 2010 (para 12). Defined as such, international commercial arbitration may also include investor-State (private-State) disputes, especially when they are based on arbitration agreements between a foreign investor and the host State. Definition based on the nature of the relationship inevitably leaves some ambiguity, and the nature of the relationship is to be judged case-by-case. See section III(A) of this article.

⁴ Arts 1119 and 1120 NAFTA.

⁵ Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (adopted 18 March 1965, entered into force 14 October 1968) 575 UNTS 159.

⁶ The Additional Facility Rules of ICSID, available at <http://icsid.worldbank.org/ICSID/> accessed 1 March 2010.

⁷ UNCITRAL, ‘UNCITRAL Arbitration Rules of 1976’ <http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules/arb-rules.pdf> accessed 1 March 2010.

⁸ Art 2(b) Additional Facility Rules of ICSID.

⁹ Art 6(1)(c) ICSID Convention. The ICSID Arbitration Rules are available at <http://icsid.worldbank.org/ICSID/> accessed 1 March 2010.

¹⁰ For example, an arbitral award is not subjected to a review of the local court of a State where the enforcement of the award is sought, and the State's ‘public policy’ does not constitute a ground to refuse recognition of the award (Art 54(1) of the ICSID Convention).

¹¹ ICC, ‘ICC Arbitration Rules of 1998’ <http://www.iccwbo.org/uploadedFiles/Court/Arbitration/other/rules_arb_english.pdf> accessed 1 March 2010.

¹² As of 2008, while 201 out of 317 investor-State disputes have been filed with ICSID or ICSID Additional Facility, 83 are filed under the UNCITRAL Rules, 17 are filed under the arbitration rules of the Stockholm Chamber of Commerce, and 5 are filed under the ICC Rules. UNCTAD, ‘Latest Developments in Investor-State Dispute Settlement’ (2009) <http://www.unctad.org/en/docs/webdiaeia20096_en.pdf> accessed 1 March 2010. See also, Dolzer and Schreuer (n 1) 226.

¹³ Van Harten and Loughlin argue that ‘investment treaties incorporate arbitration treaties in order to provide an institutional forum and procedural framework for investment arbitration’ (G Van Harten and M Loughlin, ‘Investment Treaty Arbitration as a Species of Global Administrative Law’ (2006) 17 EJIL 1, 121, 126). See also, Van Harten, G, ‘The Public-Private Distinction in the International Arbitration of Individual Claims against the State’ (2007) 56 ICLQ 2, 377CrossRefGoogle Scholar.

¹⁴ Dolzer and Schreuer (n 1) 225.

¹⁵ Convention on the Recognition and Enforcement of Foreign Arbitral Awards (adopted 10 June 1958, entered into force 7 June 1959) 330 UNTS 38.

¹⁶ Eg SD Franck, ‘The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions’ (2005) 73 Fordham L Rev 1521; Van Harten, Investment Treaty Arbitration and Public Law (n 1) 116–120; C Schreuer, ‘Diversity and Harmonization of Treaty Interpretation in Investment Arbitration’ (2006) 3 Transnational Dispute Management 2.

¹⁷ Art 42(1) of the ICSID Convention; Art 1131 of the NAFTA; AAPL v Sri Lanka (Asian Agricultural Products Ltd v Sri Lanka (Award of 27 June 1990) ICSID Case No. ARB/87/3 para 21); LG&E Energy Corp., LG&E Capital Corp. and LG&E International Inc v Argentine Republic (Decision on Liability of 3 October 2006) ICSID Case No. ARB/02/1 para 97); A Redfern and M Hunter, Law and Practice of International Commercial Arbitration (4^th edn, Sweet & Maxwell, London, 2004) 486; Parra, AR, ‘Applicable Substantive Law in ICSID Arbitrations Initiated Under Investment Treaties’ (2001) 16 ICSID Rev 20, 21CrossRefGoogle Scholar; C Schreuer, The ICSID Convention: A Commentary; A Commentary on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (CUP, Cambridge, 2001) 562, 612.

¹⁸ For example, the commentaries to ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts refer to several ICSID awards. ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’ <http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf> accessed 1 March 2010. For the examination of how practices of investment treaty arbitration contribute to the development of general international law, see, McLachlan, C, ‘Investment Treaties and General International Law’ (2008) 57 ICLQ 2, 391–401.CrossRefGoogle Scholar

¹⁹ M Sornarajah, The Settlement of Foreign Investment Disputes (Kluwer Law International, The Hague, 2000) 62.

²⁰ Kingsbury, B, Krisch, N and Stewart, RB, ‘The Emergence of Global Administrative Law’ (2005) 68 Law & Contemporary Problems 15, 36–37Google Scholar; G Van Harten, Investment treaty Arbitration and Public Law (n 1) Chapter I; G Van Harten and Loughlin, ‘Investment Treaty Arbitration as a Species of Global Administrative Law’ (n 13); Dolzer and Schreuer (n 1) 3; Sornarajah (n 19) 61–77; Schill, SW, ‘International Investment Law and the Host State's Power to Handle Economic Crises: Comment on the ICSID Decision in LG&E v Argentina’ (2007) 24 Journal of International Arbitration 3, 265Google Scholar ff.

²¹ G Van Harten, ‘Commentary: A Case for an International Investment Court’ Investment Treaty News (1 September 2008) <http://www.investmenttreatynews.org/content/archives.aspx> accessed 1 March 2010.

²² A Cosbey, ‘The Road to Hell? Investor Protections in NAFTA's Chapter 11’ in L Zarsky (ed) International Investment for Sustainable Development: Balancing Rights and Rewards (Earthscan, 2005); Dolzer and Schreuer (n 1). See also section III(A).

²³ Sornarajah (n 19) 77.

²⁴ The closed nature of arbitration proceedings manifests itself most significantly as the following two features: confidentiality of the proceedings and the limitation on third party participation. Although this article focuses on the latter, the former has also developed recently. For example, since Methanex Corporation v United States (documents of NAFTA cases, including Methanex, are available at <http://www.naftaclaims.com> accessed 1 March 2010), it is a regular practice of NAFTA tribunals to make the hearings open to the public. C Yannaca-Small, ‘Transparency and Third Party Participation in Investor-state Dispute Settlement Procedures’ in OECD (ed) International Investment Law: A Changing Landscape—A Companion Volume to International Investment Perspectives (OECD Publishing, Paris, 2005) 17–24. See also, Tienhaara, K, ‘Unilateral Commitments to Investment Protection: Does the Promise of Stability Restrict Environmental Policy Development?’ (2008) 17 Ybk Intl Envtl L 139, 165Google Scholar.

²⁵ Tollefson, C, ‘Metalclad v United Mexican States Revisited: Judicial Oversight of NAFTA's Chapter Eleven Investor-State Claim Process’ (2002) 11 Minnesota J of Global Trade 183, 204Google Scholar.

²⁶ Amicus curiae is defined as ‘[a] friend of the court. A term applied to a bystander, who without having an interest in the cause, of his own knowledge makes suggestion on a point of law or of fact for the information of the presiding judge’. S Krislov, ‘The Amicus Curiae Brief: From Friendship to Advocacy’ (1963) 72 Yale L J 4, 694, citing B Abbott, ‘Dictionary of Terms and Phrases used in American or English Jurisprudence’ (1879).

²⁷ See section III.

²⁸ Shelton argues that major international tribunals (except for the ICJ) had developed procedures to enable NGOs to submit information or statements on pending cases. Shelton, D, ‘The Participation of Nongovernmental Organizations in International Judicial Proceedings’ (1994) 88 AJIL 4, 611, 641–642.CrossRefGoogle Scholar

²⁹ Methanex Corporation v. United States (Decision of the Tribunal on Petitions from Third Persons to Intervene as Amici Curiae of 15 January 2001).

³⁰ ibid para 24.

³¹ ibid paras 29 and 47.

³² In particular, the tribunal cited the Note 5 of the Iran-US Claims Tribunal to art 15(1) of the UNCITRAL Arbitration Rules that authorizes the Tribunal to permit amicus briefs and appearances and one case in which third persons (foreign banks) submitted their own memorial to the tribunal (Iran v US, Case A/15 (Award No. 63-A/15-FT) 2 Iran-US CTR 40), and stated that they ‘demonstrates that the receipt of written submissions from a non-party third person does not necessarily offend the philosophy of international arbitration involving states and non-state parties’ (para 32). As to the Iran–US Claims Tribunal's Arbitration Rules, which is a modified version of the UNCITRAL Arbitration Rules, see CN Brower and JD Brueschke, The Iran-United States Claims Tribunal (M. Nijhoff, The Hague, 1998) 17–20.

³³ Methanex Corporation v United States (Decision on Amici Curiae) (n 29) para 49.

³⁴ ibid para 41.

³⁵ The term ‘materials’ refers to all or some of the following (depending on each request): pleadings; written memorials; witness statements; expert reports; minutes or records of hearings; correspondence between the parties and/or the tribunal; and all other documents and evidence submitted in arbitration proceedings.

³⁶ Methanex Corporation v United States (Decision on Amici Curiae) (n 29) paras 42–45.

³⁷ ibid para 46.

³⁸ Mann, H, ‘Opening the Doors, At Least a Little: Comment on the Amicus Decision in Methanex v United States’ (2001) 10 (2) RECIEL 241, 244Google Scholar.

³⁹ FTC, ‘Statement of the Free Trade Commission on non-disputing party participation’ <http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/Nondisputing-en.pdf> (unofficial text, subject to verification in all three NAFTA languages) accessed 1 March 2010.

⁴⁰ See, Tribunal Communication re: Amicus Participation of April 6, 2004; Methanex Corporation v The United States of America (Final Award of 9 August 2005) Part II, Chapter C, para 28. On the other hand, the tribunal declined to accept the request made by these institutions for permission to make a post-hearing submission on a legal issue (ibid Part II, Chapter C, para 44).

⁴¹ United Parcel Service v Canada (Decision on Petitions for Intervention and Participation as Amici Curiae of 17 October 2001) para 61.

⁴² ibid para 67.

⁴³ ibid para 68.

⁴⁴ United Parcel Service v Canada (Final Award of 11 June 2007) para 3.

⁴⁵ Glamis Gold Ltd v United States (Award of 8 June 2009) para 286.

⁴⁶ Decision on Application and Submission by Quechan Indian Nation (16 September 2005) para. 9 (‘The Tribunal need not now decide whether the discretion to accept substantive materials from non-parties is within the discretion of the Tribunal under art 15(1) of the UNCITRAL Rules. The Free Trade Commission's Statement on non-disputing party participation indicates that the three States in NAFTA accept such statements); Procedural Orders No. 4 (26 August 2005); No. 6 (15 October 2005); No. 8 (31 January 2006). See also, Tienhaara, K, ‘Third Party Participation in Investment-Environment Disputes: Recent Developments’ (2007) 16 (2) RECIEL 230, 239Google Scholar.

⁴⁷ Aguas del Tunari, SA v Republic of Bolivia ICSID Case No. ARB/02/3. Decisions and documents of this case mentioned in this article are available at <http://www.investmentclaims.com> accessed 1 March 2010.

⁴⁸ Petition of La Coordinadora Para la Defensa del Agua y Vida, La Federacion Departmental Cochabamba de Organizaciones Regantes, Sempa Sur, Friends of the Earth Netherlands, Oscar Olivera, Omar Ferdandez, Father Luis Sanchez, and Congressman Jorge Alvarado to the Arbitral Tribunal in Aguas del Tunari, SA v Republic of Bolivia (29 August 2002).

⁴⁹ Letter from President of Tribunal Responding to Petition (29 January 2003).

⁵⁰ Suez, Sociedad General de Aguas de Barcelona SA, and Vivendi Universal SA v Argentine (Order in Response to a Petition for Transparency and Participation as Amicus Curiae of 19 May 2005) ICSID Case No. ARB/03/19.

⁵¹ It should be noted that the tribunal confirmed that the ICSID Convention and ICSID Arbitration Rules neither specifically authorize nor specifically prohibit the amicus curiae submission. Yet the tribunal found the last sentence of art 44 (‘If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question.’) to be a grant of residual power to the tribunal to decide procedural questions. The tribunal also pointed out that art 44 is substantially similar to art 15(1) of the UNCITRAL Arbitration Rules, on which the Methanex tribunal based its decision to allow the submission of amicus curiae briefs (ibid para 14).

⁵² ibid para 22.

⁵³ ibid para 17.

⁵⁴ ibid para 14.

⁵⁵ ibid para 6.

⁵⁶ Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua SA v Argentina (Order in response to a Petition for Participation as Amicus Curiae of 17 March 2006) ICSID Case No. ARB/03/17.

⁵⁷ ibid para 18.

⁵⁸ ibid.

⁵⁹ ibid para 34.

⁶⁰ ibid para 38.

⁶¹ It is observed that the inconsistency between the Aguas del Tunari case on the one hand and Suez/vivendi and Suez/InteAguas cases on the other led to the amendments of ICSID Arbitration Rules 32 and 37 (ICSID Senior Counsel, ‘Introductory note to the Aguas del Tunari SA v Republic of Bolivia case’ available at <http://www.worldbank.org/ICSID> accessed 1 March 2010).

⁶² Art 44 of the ICSID Convention requires tribunals to use the version of rules in effect at the time the parties consented to arbitration.

⁶³ Tienhaara, ‘Third Party Participation in Investment-Environment Disputes: Recent Developments’ (n 46) 233. Parra points out that the ICSID Secretariat initially suggested giving tribunals an authority in this regard similar to the one in Rule 37, but it was not adopted. Parra, AR, ‘The Development of the Regulations and Rules of the International Centre for Settlement of Investment Disputes’ (2007) 41 The Int'l Lawyer 1, 47, 56Google Scholar.

⁶⁴ Suez, Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA v Argentina (Order in Response to a Petition by Five NGOs for Permission to Make an Amicus Curiae Submission of 12 February 2007) ICSID Case No. ARB/03/19.

⁶⁵ Art 44 of the ICSID Convention requires tribunals to use the version of rules in effect at the time the parties consented to arbitration.

⁶⁶ para 24.

⁶⁷ Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Procedural Order No. 5 of 2 Feb 2007) ICSID Case No. ARB/05/22. It should however be noted that the request for arbitration was filed before the amended Rules came into force, whereas, according to art 44 of the ICSID Convention, the amended Arbitration Rules apply to the initiated under investment treaties after the adoption of amendments (Parra, ‘The Development of the Regulations and Rules of the International Centre for Settlement of Investment Disputes’ (n 63) 58). In addition, there is nothing on the ICSID website indicating that the disputing parties agreed to apply the amended Rules. This leaves uncertainty as to the application of the amended Rules, but the procedural orders No. 3 and 5 appear to be based on the assumption that the arbitration is operating under the amended rules for purposes of amicus curiae participation. J Chalker, ‘Filing Amicus-curiae Petitions in Investor-State Arbitrations’ (2007) <http://sdla-npo.org/pub/2007_Filing_Amicus_Curiae_Petitionsin_Investor.pdf> accessed 1 March 2010.

⁶⁸ Procedural Order No. 5 (ibid) para 46.

⁶⁹ Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Procedural Order No. 3 (on confidentiality/procedural integrity) of 29 September 2006).

⁷⁰ Biwater had requested the tribunal to order the parties to, in particular, refrain from disclosing certain materials of the proceedings such as the pleadings.

⁷¹ While identifying several aspects that are necessary to keep the integrity of the arbitral proceedings (e.g. to avoid ‘trial by media’) (Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Procedural Order No.3 (n 69) para 135), the tribunal neither defined nor explained the term ‘procedural integrity’.

⁷² Procedural Order No.3 (n 69) paras 151–160.

⁷³ Although the tribunal did not specify the meaning of the term ‘in the public domain’, presumably it refers to the fact identified in the Procedural Order No. 3 ((n 69) para 136) that there was already ‘substantial media coverage’ of the issues concerned.

⁷⁴ Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Procedural Order No. 5 (n 67) para 65.

⁷⁵ ibid para 66.

⁷⁶ ibid paras 66–68. In Procedural Order No. 6 of 25 April 2007 issued after the conclusion of the hearing (not published on ICSID website), the tribunal stated that both parties agreed that ‘no further filing or intervention in these proceedings by the Petitioners was in fact needed’—therefore the issue of access to documents was not revisited (Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Award of 18 July 2008) ICSID Case No. ARB/05/22 paras 356–369). Considering that it is indeed rare that further amicus curiae submissions are allowed after the conclusion of a hearing, it may well be claimed that there was little point of mentioning the possibility of a disclosure after the hearing.

⁷⁷ Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Final Award) (ibid) paras 67.

⁷⁸ ibid.

⁷⁹ Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Procedural Order No. 5 (n 67) para 68. The amicus curiae submission is available at the CIEL's website <http://www.ciel.org/Publications/Biwater_Amicus_26March.pdf> accessed 1 March 2010.

⁸⁰ It should be noted that there seems to be a common understating among these tribunals that the confidentiality of the proceedings is separate from the privacy of the hearings, which has a clear legislative ground (as examined above).

⁸¹ Abi-Saab states that ‘[t]he question of amicus curiae relates to the multiplication and greater activism of new international actors and how they can find their way into the international legal system’. G Abi-Saab, ‘Whither the Judicial Function? Concluding Remarks’ in Chazournes, C Romano and R Mackenzie (eds) International Organizations and International Dispute Settlement (Transnational Publishers, New York, 2002) 245.

⁸² Charnovitz, S, ‘Two Centuries of Participation: NGOs and International Governance’ (1997) 18 Michigan J of Intl L 183Google Scholar; P Sands, Principles of International Environmental Law (2^nd edn, CUP, Cambridge, 2003) 112. In the context of the human rights issues, Donnelly observes that NGO lobbying helped to assure that human rights language was included in the United Nations Charter, and since then NGOs have become regular participants in the human rights work of the UN. J Donnelly, International Human Rights (3^rd edn, Westview Press, 2007) 142.

⁸³ Save in UPS, all the cases examined in section II involve either environmental or human rights issue.

⁸⁴ H French,‘The Role of Non-State Actors’ in J Werksman (ed) Greening International Institutions (Earthscan, London, 1996) 254.

⁸⁵ The texts of Agenda 21 are available at the website of the UN Division for Sustainable Development <http://www.un.org/esa/sustdev/documents/agenda21/english/agenda21toc.htm> accessed 1 March 2010.

⁸⁶ Agenda 21 paras 27.9, 38.5, 38.8 (d), 38.11, 38.13, 38.14. In particular, para 27.9 states that ‘[t]he United Nations system, including international finance and development agencies, and all intergovernmental organizations and forums should, in consultation with non-governmental organizations, take measures to:…’.

⁸⁷ ibid para 27.12.

⁸⁸ Sands (n 82) 199. For example, it is submitted that the effectiveness of the 1989 Basel Convention may ultimately turn on various informal monitoring and verification processes involving non-State actors, in particular NGOs. G Handl, ‘Environmental Security and Global Change: The Challenge to International Law’ in W Lang, H Neuhold and K Zemanek (eds) Environmental Protection and International Law (Graham & Trotman, London, 1991) 59, 73.

⁸⁹ 14–25 June 1993, Vienna, Austria.

⁹⁰ More than 800 NGOs attended the Conference. UN Office of the High Commissioner for Human Rights, ‘World Conference on Human Rights’ <http://www.ohchr.org/EN/AboutUs/Pages/ViennaWC.aspx> accessed 1 March 2010.

⁹¹ Vienna Declaration and Programme of Action (adopted by the World Conference on Human Rights on 25 June 1993).

⁹² It is also observed that ‘NGO lobbying increased the official conference statement's emphasis on women's rights’. S Sinnar, ‘Mixed Blessings: The Growing Influence of NGOs’ (1995) 18 Harvard Intl Rev 1, 54, 55.

⁹³ Eg art 38: ‘The World Conference on Human Rights recognizes the important role of non-governmental organizations in the promotion of all human rights and in humanitarian activities at national, regional and international levels’; art 52: ‘[t]he World Conference on Human Rights recognizes the important role played by non-governmental organizations in the effective implementation of all human rights instruments and, in particular, the Convention on the Rights of the Child’. See also, arts 13, 15, 18, 73, 82, 100.

⁹⁴ Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144 (1998). For example, art 18(3) states that: ‘[i]ndividuals, groups, institutions and non-governmental organizations also have an important role and a responsibility in contributing, as appropriate, to the promotion of the right of everyone to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights and other human rights instruments can be fully realized’. See also, arts 16, 18(2).

⁹⁵ More specifically, the roles of NGOs in international law-making include: creation of the awareness of the need to adopt international instruments (eg by mobilising the forces of public opinion); involvement in the creation of legally binding or non-binding international norms through their participation at treaty making or other global conferences; participation in the monitoring of international norms; involvement in judicial application and enforcement of international law through advocacy; and other ‘autonomous’ activities such as the drafting and publication of codes of conduct and guidelines, interpretative treaty commentaries or principles. See, A Boyle and C Chinkin, The Making of International Law (OUP, Oxford, 2006) 66–90; MT Kamminga,‘The Evolving Status of NGOs under International Law: A Threat to the Inter-State System?’ in P Alston (ed) Non-State Actors and Human Rights (OUP, Oxford, 2005) 101. The detailed examination of the role of NGOs in international policy and law-making is outside the scope of this article. See generally, PJ Spiro,‘Non-Governmental Organizations and Civil Society’ in D Bodansky, J Brunnee and E Hay (eds) The Oxford Handbook of International Environmental Law (OUP, Oxford, 2007); J Ebbesson,‘Public Participation’ in D Bodansky, J Brunnee and E Hay (eds) The Oxford Handbook of International Environmental Law (OUP, Oxford, 2007); Yamin, F, ‘NGOs and Internaitonal Environmental Law: A Critical Evaluation of their Roles and Responsibilities’ (2001) 10 RECIEL 149Google Scholar; Sands (n 82) 112–120, 198–200; French (n 84); S Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) 100 AJIL 2, 348, 352.

⁹⁶ Kamminga (ibid) 98.

⁹⁷ D Henderson, The MAI Affair: A Story and Its Lessons (Royal Institute of International Affairs, London, 1999) 23, 28 and 45.

⁹⁸ N Rubins, ‘Opening the Investment Arbitration Process: At What Cost, for What Benefit?’ (2006) 3 Transnational Dispute Management 3, 4.

⁹⁹ JE Viñuales, ‘Amicus Intervention in Investor-State Arbitration’ (2007) Nov 2006–Jan 2007 Dispute Resolution J 72, 75.

¹⁰⁰ It is argued that the principle of party autonomy is part of the principle of self-determination of the disputing parties. D Coester, ‘Constitutional Aspects of Party Autonomy and its Limits—the Prospective of Law’ <http://www.kcl.ac.uk/schools/law> accessed 1 March 2010.

¹⁰¹ More specifically, procedural issues covered by the principle of party autonomy refer to the choice of applicable law that govern the merits of a dispute and the selection of arbitration rules. E Gaillard and J Savage (eds) Fouchard, Gaillard, Goldman on International Commercial Arbitration (Kluwer Law International, The Hague, 1999) 31–32. See also, Pryles, M, ‘Limits to Party Autonomy in Arbitral Procedure’ (2007) 24 J of Intl Arb 3, 327, 327–328.Google Scholar

¹⁰² Redfern and Hunter (n 17) 265. Van Harten explains that the principle of party autonomy requires that the parties' agreement to arbitrate to be respected by States and the process should be insulated from oversight by domestic courts. Van Harten, Investment treaty Arbitration and Public Law (n 1) 60. The principle of party autonomy is reflected in Rule 20(1)(2) of the ICSID Arbitration Rules.

¹⁰³ UNCITRAL, ‘UNCITRAL Model Law on International Commercial Arbitration, the Texts with Amendments as Adopted in 2006’ <http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html> accessed 1 March 2010.

¹⁰⁴ Viñuales points to the UPS case where the Canadian NGOs tried to gain party status as a primary form of participation as an example of the risk of such erosion. Viñuales (n 99) 75.

¹⁰⁵ For the relationship between the principle of party autonomy and ICSID arbitration generally, see Boralessa, A, ‘The Limitations of Party Autonomy in ICSID Arbitration’ (2004) 15 The American Rev of Intl Arb 2, 253Google Scholar.

¹⁰⁶ L Reed, J Paulsson and N Blackaby, Guide to ICSID Arbitration (Kluwer Law International, The Hague, 2004) 83. This does not mean that the tribunals exclusively rely on evidence submitted by the parties. Under the ICSID Convention (art 43(2)) and ICSID Arbitration Rules (Rules 34–36), a tribunal has power to investigate the case on its own initiative. Tribunals asked the parties to provide answers to specific questions (Benvenuti & Bonfant v Congo (Award of 15 Aug 1980) ICSID Case No. ARB/77/2; Klockner v Cameroon (Award of 21 October 1983) ICSID Case No ARB/81/2), to produce specific documents (Amco v Indonesia (Decision on Annulment of 16 May 1986) ICSID Case No ARB/81/1); Klockner v Cameroon (Decision on Annulment of 3 May 1985) ICSID Case No ARB/81/2). Tribunals also appointed experts on their own motion (Benvenuti & Bonfant v Congo (ibid)). See, Schreuer, The ICSID Convention: A Commentary; A Commentary on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (n 17) 652 and 655. For the use of experts, it is usual for an arbitral tribunal to be given express power to appoint experts either by an express term of the arbitration agreement or through the incorporation of institutional rules of arbitration by such an agreement (Redfern and Hunter (n 17) 309). See also, art 27 of the UNCITRAL Arbitration Rules and art 20(4) of the ICC Arbitration Rules.

¹⁰⁷ Shelton identifies several reasons for such an omission by a State: it may consider certain issues subordinate or tangential to the major points it wishes to raise; it may feel that raising certain sensitive issues will exacerbate the dispute or be counterproductive. Shelton (n 28) 615. Moreover, the deliberate omission of certain public issues by the host State may be related to undue political pressure. For example, the host State may wish to leave issues relating to corruption on the part of its officials untouched, even thought such issues will demonstrate the illegality of the investor's conduct. Eg World Duty Free v The Republic of Kenya (4 October 2006) ICSID Case No ARB/00/7, award not published on ICSID website.

¹⁰⁸ J Durling and D Hardin, ‘Amicus Curiae participation in WTO dispute settlement: reflections on the past decade’ in R Yerxa and B Wilson (eds) Key Issues in WTO Dispute Settlement (CUP, Cambridge, 2005) 229.

¹⁰⁹ In Suez/InterAguas (n 56), the tribunal defined a ‘procedural question’ as ‘one which relates to the manner of proceeding or which deals with the way to accomplish a stated end’ and concluded that ‘[t]he admission of an amicus curiae submission would fall within this definition of procedural question since it can be viewed as a step in assisting the Tribunal to achieve its fundamental task of arriving at a correct decision in this case’ (para 12).

¹¹⁰ G Marceau and M Stilwell, ‘Practical Suggestions for Amicus Curiae Briefs before WTO Adjudicating Bodies’ [2001] J of Intl Economic L 155, 158: ‘(amicus curiae briefs) became a source of ideas and arguments that may affect the outcome of the dispute’.

¹¹¹ Van Harten, Investment treaty Arbitration and Public Law (n 1) 45.

¹¹² A Palacio, ‘Recent Institutional Developments’ (2007) 24 ICSID News 2, 20, 21. Palacio was the Secretary-General of the ICSID.

¹¹³ Yannaca-Small (n 24) 24.

¹¹⁴ Seriki, H, ‘Confidentiality in arbitration proceedings: recent trends and developments’ [2006] May J of Business L 300, 310Google Scholar.

¹¹⁵ F Marshall and H Mann, ‘Revision of the UNCITRAL Arbitration Rules, Good Governance and the Rule of Law: Express Rules for Investor–State Arbitrations Required (International Institute for Sustainable Development)’ (2006) <http://www.iisd.org/pdf/2006/investment_uncitral_rules_rrevision.pdf> accessed 1 March 2010.

¹¹⁶ Mistelis also stresses this point. Mistelis, L, ‘Confidentiality and Third Party Participation’ (2005) 21 Arb Intl 2, 211, 230Google Scholar.

¹¹⁷ Methanex Corporation v United States (Decision on Amici Curiae) (n 29) para 49.

¹¹⁸ United Parcel Service v Canada (Decision on Amici Curiae) (n 41) para 65.

¹¹⁹ Suez/Vivendi First Order on Amici (n 50) para 19.

¹²⁰ Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua S.A. v. Argentina (n 56) para 18.

¹²¹ Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Procedural Order No. 5) (n 67) para 53.

¹²² Ethyl Corporation v The Government of Canada <http://www.naftaclaims.com>

¹²³ SD Myers v The Government of Canada <http://www.naftaclaims.com>

¹²⁴ Metalclad Corporation v United Mexican States <http://www.naftaclaims.com>

¹²⁵ Methanex Corporation v United States (Final Award) (n 40).

¹²⁶ Tecnicas Medioambientales TECMED SA v Mexico (Award of 29 May 2003) ICSID Case No. ARB (AF)/00/2

¹²⁷ MTD Equity Sdn. Bhd. and MTD Chile SA v Republic of Chile (Award of 24 May 2004) ICSID Case No. ARB/01/7.

¹²⁸ Compañía del Desarrollo de Santa Elena, SA v Republic of Costa Rica (Award of 17 Febrary 2000) ICSID Case No. ARB/96/1.

¹²⁹ Parkerings-Compagniet AS v Republic of Lithuania (Award of 11 September 2007) ICSID Case No. ARB/05/8.

¹³⁰ For the contrary view, see Newcombe, A, ‘Book review, Gus Van Harten, Investment Treaty Arbitration and Public Law ’ (2008) 71 Modern Law Review 147, 150CrossRefGoogle Scholar.

¹³¹ Ethyl Corporation v The Government of Canada (n 122).

¹³² Dhooge, LJ, ‘The North American Free Trade Agreement and the Environment: The Lessons of Metalclad Corporation v United Mexican States’ (2001) 10 Minnesota J of Global Trade 209, 273–274.Google Scholar Marshall and Mann give such an example: in the mid 1990s the US tobacco lobby threatened to commence NAFTA arbitration proceedings against the Canadian government if it proceeded with planned restrictions on cigarette packaging, as a result of which the regulations proposed were never adopted. Marshall and Mann (n 115).

¹³³ Fauchald, OK, ‘International Investment Law and Environmental Protection’ (2008) 17 Ybk Intl Envtl L 3, 8 and 19Google Scholar.

¹³⁴ Separate opinion of Bryan Schwartz in SD Myers v The Government of Canada (Partial Awards on the Merits of 13 November 2000) para 203.

¹³⁵ This is firstly because it is unlikely that the investor appoints an arbitrator who is a national of the host State, and secondly because many investment treaties and the ICSID Conventions requires either: the third (presiding) arbitrator ‘shall not be a national of the disputing Party or a national of the Party of the disputing investor’ (art 1124(3) NAFTA); or ‘the majority of the arbitrators shall be nationals of States other than the Contracting State party to the dispute and the Contracting State whose national is a party to the dispute’ (art 39 ICSID Convention).

¹³⁶ Investment treaty arbitral awards are subject to review by domestic courts (non-ICSID awards) or by an annulment committee (ICSID awards). However, the grounds for judicial review set out in the NYC and the ICSID Convention are strictly limited (art V NYC, art 52 ICSID Convention).

¹³⁷ To be sure, investment treaty arbitration is distinguished from these public dispute settlement bodies in many respects, but the potentially significant impact of the decisions on the general public is in common between them.

¹³⁸ Van Harten, Investment treaty Arbitration and Public Law (n 1) 66.

¹³⁹ Van Harten and Loughlin (n 13) 145; Tollefson (n 25) 203–204. For the issue of the State consent to investment treaty arbitration, see Paulsson, J, ‘Arbitration Without Privity’ (1995) 10 ICSID Rev 232CrossRefGoogle Scholar.

¹⁴⁰ Van Investment treaty Arbitration and Public Law (n 1) 68.

¹⁴¹ Van Harten, ‘The Public-Private Distinction in the International Arbitration of Individual Claims against the State’ (n 13) 387.

¹⁴² ibid 391.

¹⁴³ It may be crucial in considering certain other issues such as the need for the review of arbitral awards and the creation of ‘world investment court’. See Van Harten (n 1) 175–183.

¹⁴⁴ Tienhaara (n 24) 159–163.

¹⁴⁵ Esty, DC, ‘Non-Governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion’ (1998) 1 J of Intl Economic L 123, 131Google Scholar.

¹⁴⁶ Eg The FTC Statement on Third Party Participation (n 39) B(8).

¹⁴⁷ Rubins (n 98) 8.

¹⁴⁸ ibid 5.

¹⁴⁹ Eg Methanex Corporation v United States (Decision on Amici Curiae) (n 29) para 50; United Parcel Service v Canada (Decision on Amici Curiae) (n 41) para 69.

¹⁵⁰ ‘The Tribunal shall ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party’.

¹⁵¹ Eg United States—Section 110(5) of US Copyright Act—Report of the panel (15 June 2000) WT/DS160/R para 6.8.

¹⁵² The FTC Statement on Third Party Participation (n 39) limits the length of the application for leave to file a non-disputing party submission to no more than five pages and that of the submission to twenty pages. The Biwater tribunal similarly limited the number of pages of the amicus curiae submission (Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Procedural Order No. 5 (n 67)) para 60.

¹⁵³ C Chinkin and R Mackenzie,‘Intergovernmental Organizations as “Friends of the Court‘' in Chazournes, C Romano and R Mackenzie (eds) International Organizations and International Dispute Settlement: Trends and Prospects (Transnational Publishers, New York, 2002) 155.

¹⁵⁴ The question of whether the parties may unilaterally release the materials introduced during the proceedings of investment treaty arbitration remains unclear. None of the ICSID Arbitration Rules, the UNCITRAL Arbitration Rules or NAFTA Chapter 11 provisions explicitly addresses the issue of the confidentiality obligations between parties, and the case law on this issue is inconsistent. In Amco v Indonesia (n 106), the tribunal confirmed that neither the ICSID Convention nor the Rules prevents the parties from revealing their case (para 4). It is observed that ‘[i]n fact, a number of ICSID awards have been released unilaterally by one of the disputing parties’ and ‘[s]ubmissions of the parties and other documents have in fact been made available to the public on a regular basis’ (Knahr, C and Reinisch, A, ‘Transparency versus Confidentiality in International Investment Arbitration—The Biwater Gauff Compromise’ (2007) 6 The L & Practice of Intl Courts and Tribunals 1, 97, 100 and 103Google Scholar). See also, Loewen Group v United States (Award on Jurisdiction of 5 January 2001). Cf. Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Procedural Order No. 3 (n 69)).

¹⁵⁵ As ‘there is no generally accepted definition of an NGO and the term carries different connotations in different circumstances’ (Willetts, ‘What is a Non-Governmental Organization?’ (2002) <http://www.staff.city.ac.uk/p.willetts/CS-NTWKS/NGO-ART.HTM> accessed 1 March 2010), this article takes the approach to define NGOs through what they are not: they are not established by a government or by intergovernmental agreement and their resources should come primarily from voluntary contributions. Boyle and Chinkin (n 95) 52–53.

¹⁵⁶ Kamminga (n 95) 110. It is argued that the participation of private actors, at its extreme, may ‘unfairly displace the interests of the masses by those of a few’. Durling and Hardin (n 108) 227–228.

¹⁵⁷ Kamminga (ibid) 111; Viñuales (n 99).

¹⁵⁸ Brower, CH, ‘Legitimacy, and NAFTA's Investment Chapter’ (2003) 36 Vanderbilt J of Transnational L 1, 37, 73Google Scholar; Boyle and Chinkin (n 95) 58.

¹⁵⁹ For such examinations, see Charnovitz ‘Nongovernmental Organizations and International Law’ (n 95); S Charnovitz, ‘Participation of Nongovernmental Organizations in the World Trade Organization’ (1996) 17 U of Pennsylvania J of Intl Economic L 331.

¹⁶⁰ Esty (n 145) 123.

¹⁶¹ RP Buckley and P Blyschak, ‘Guarding the Open Door: Non-Party Participation Before the International Centre for Settlement of Investment Disputes ’ (2007) U of New South Wales Faculty of L Research Series 33.

¹⁶² Shelton points out the benefit of amicus curiae briefs for States is that they ‘may lessen their litigation burden and show public support for the arguments they make’. Shelton (n 28) 626.

¹⁶³ Chinkin and Mackenzie (n 153) 154.

¹⁶⁴ Buckley and Blyschak (n 161).

¹⁶⁵ This discretionary power, together with the ambiguity of the term ‘significant interest (in the arbitration proceedings)’ (Paragraph 6(c) of the FTC Statement on Third Party Participation (n 39); Rule 37(2) of ICSID Arbitration Rules), raises the concern of the ‘impossibly high threshold’ for granting leave, but this is a separate issue.

¹⁶⁶ Buckley and Blyschak (n 161). For example, the circumstances such as a potential amici is subsidized by the host State or has received donations from the relevant foreign investor may well indicate the lack of its independence. It should be noted that, however, the tribunal in UPS received the amicus curiae brief from the Chamber of Commerce, despite the fact that the Chamber had received US$100,000 (which represented 12 per cent of its annual budget) from the UPS before its submission of amicus curiae briefs. Amicus curiae brief of the Chamber of Commerce dated 10 October 2005 (para 9).

¹⁶⁷ J Chalker, ‘Bricks without Straw: the Confidentiality Order in Biwater Gauff (Tanzania) v United Republic of Tanzania (Biwater)’ <http://www.sdla-npo.org/pub/2007_Bricks_Without_Straw_Emailed_0325.pdf> accessed 1 March 2010.

¹⁶⁸ Chalker, ‘Filing Amicus-curiae Petitions in Investor-State Arbitrations’ (n 67).

¹⁶⁹ Tienhaara, ‘Third Party Participation in Investment-Environment Disputes: Recent Developments’ (n 46) 231.

¹⁷⁰ Suez/Vivendi Second Order on Amici (n 64) para 24.

¹⁷¹ For the meaning of the term ‘public domain’, see, n 73.

¹⁷² Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Procedural Order No. 5 (n 67)) para 64.

¹⁷³ An example where the failure of the respondent State to produce documentation ordered by the tribunal resulted in an unfavourable assessment is AGIP SpA v People's Republic of the Congo (Award of 30 November 1979) ICSID Case No. ARB/77/1 (see Buckley and Blyschak (n 161)).

¹⁷⁴ Chinkin and Mackenzie (n 153) 137.

¹⁷⁵ US Rejoinder on the Merits of 20 April 2004 para 195.

¹⁷⁶ Van Harten, Investment treaty Arbitration and Public Law (n 1) 159.

¹⁷⁷ French (n 84) 256; Donnelly (n 82) 142.

¹⁷⁸ Shelton (n 28) 618.

¹⁷⁹ Bartholomeusz, L, ‘The Amicus Curiae before International Courts and Tribunals’ (2005) 5 Non-State Actors & Intl L 3, 209, 241Google Scholar.

¹⁸⁰ Biwater amicus curiae brief (n 79) para 10.

¹⁸¹ As examined above, they have legal authority to investigate the case on their own motion, but their resources to do so are limited, primarily, to the parties, appointed experts and the ICSID Secretariat. Schreuer, The ICSID Convention: A Commentary; A Commentary on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (n 17) 652–655, 660. It should also be noted that, for ICSID arbitration, the Secretary General of the ICSID appoints a secretary of tribunals who assists arbitrators in each proceeding, but his/her assistance is limited to matters of procedure and the management of the proceedings. A Broches, Selected Essays: World Bank, ICSID, and Other Subjects of Public and Private International Law (Martinus Nijhoff, The Hague, 1995) 276.

¹⁸² Here, the term ‘good quality’ refers to factors such as based on enough consideration from all relevant perspectives, free from legal and factual errors, and well-balanced etc. Although it is argued that amicus curiae submissions will contribute to reduce the likelihood of ‘erroneous’ conclusions (DA Wirth, ‘Reexamining Decision-Making Processes in International Environmental Law ’ (1994) 79 Iowa L Rev 769, 790), the term a ‘right (or correct) decision’ should be avoided, because there is no set answer to the question of what is a right decision. For example, the best decision for the parties in a particular case may not be the best for the public, or for the overall arbitration regime. See also Viñuales (n 99).

¹⁸³ Esty (n 145) 136.

¹⁸⁴ E Decaux, ‘Human Rights and Civil Society’ in P Alston (ed) The EU and Human Rights (OUP, Oxford, 1999) 917.

¹⁸⁵ Shelton (n 28) 618.

¹⁸⁶ Bartholomeusz (n 179) 279.

¹⁸⁷ This is not to deny such a possibility, which is recognized by Chinkin and Mackenzie: ‘perhaps the amicus can, potentially at least, enhance public acceptance of the judicial process and decision by providing an opportunity (and a transparent mechanism) for all aspects of the dispute to be considered’. Chinkin and Mackenzie (n 153) 137.

¹⁸⁸ Marceau and Stilwell (n 110) 180.

¹⁸⁹ Eg they may have interests in the outcome of the dispute (eg the CUPE in UPS); they may have specific reasons to support one party (e.g. the Chamber of Commerce in UPS (n 165)); or they may wish to ‘earn their influence’ by demonstrating the attractiveness of their ideas and values in the international sphere (as to the last point, see Charnovitz ‘Nongovernmental Organizations and International Law’ (n 95) 348).

¹⁹⁰ Bartholomeusz (n 179) 285. This purpose is reflected in the rule of amicus curiae participation in the European Convention on Human Rights: ‘in the interest of the proper administration of justice’ (art 36(2)).

¹⁹¹ Charnovitz observes that ‘any NGO briefs accepted by WTO panels and the Appellate Body are kept in juristic quarantine away from the proceeding’. Charnovitz ‘Nongovernmental Organizations and International Law’ (n 95) 354.

¹⁹² United States—Import Prohibition of Certain Shrimp and Shrimp Products (Shrimp-Turtle Case)—Report of the Appellate Body (12 October 1998) WT/DS58/AB/R.

¹⁹³ Art 13 of the Dispute Settlement Understanding (‘DSU’) <http://www.wto.org/english/tratop_e/dispu_e/dsu_e.htm> accessed 1 March 2010.

¹⁹⁴ Art 12.1 of the DSU.

¹⁹⁵ Shrimp-Turtle (n 192) paras 105–108.

¹⁹⁶ United State—Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom—Report of the Appellate Body (10 May 2000) WT/DS138/AB/R paras 36–42.

¹⁹⁷ European Communities—Measures Affecting Asbestos and Products Containing Asbestos Communication from the Appellate Body (8 November 2000) WT/DS135/9.

¹⁹⁸ United States—Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom – Report of the Appellate Body (n 196) paras 40–41.

¹⁹⁹ European Communities—Measures Affecting Asbestos and Products Containing Asbestos – Report of the Appellate Body (12 March 2001) WT/DS135/AB/R para 52. The Asbestos tribunal rejected all of the seventeen applications filed.

²⁰⁰ Durling and Hardin (n 108) 224–225. For examination of the (non) use of amicus curiae submissions by the WTO panels and the Appellate Body, see, Marceau and Stilwell (n 110); Dunoff, J, ‘Border Patrol at the World Trade Organization’ (1998) 9 Ybk Intl Envtl Law 20Google Scholar; Chazournes and M Mbengue, ‘The Amici Curiae and the WTO Dispute Settlement System: the Doors are Open’ (2003) 2 The L & Practice of Intl Courts and Tribunals 205.

²⁰¹ European Communities—Measures Affecting the Approval and Marketing of Biotech Products – Report of the panel (29 September 2006) WT/DS291/R, WT/DS292/R, WT/DS293/R.

²⁰² ibid para 7.11.

²⁰³ ibid paras 7.18, 7.32, 7.96.

²⁰⁴ Young, MA, ‘The WTO's use of Relevant Rules of International Law: an Analysis of the Biotech case’ (2007) 56 ICLQ 4 907, 926Google Scholar.

²⁰⁵ Dunoff (n 200) 21.

²⁰⁶ Boyle and Chinkin (n 95) 305; Foster, CE, ‘Social Science Experts and Amicus Curiae Briefs in International Courts and Tribunals: The WTO Biotech Case’ (2005) 52 Netherlands Intl L Rev 3, 433, 453–454.Google Scholar

²⁰⁷ General Council, Minutes of the Meeting of Nov 22, 2000, WT/GC/M/60 para 120.

²⁰⁸ Methanex Corporation v The United States of America (Final Award) (n 40).

²⁰⁹ ibid Part IV, Chapter B, paras 21–37. The IISD argued that trade law approaches were not simply to be transferred to investment law. There was no mention in its award to the other amicus curiae submission made by the Bluewater Network, Communities for a Better Environment and CIEL.

²¹⁰ United Parcel Service v Canada (Final Award) (n 44).

²¹¹ ibid paras 80–120.

²¹² ibid paras 137–181.

²¹³ Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Final Award) (n 76) paras 371–392.

²¹⁴ ibid para 392.

²¹⁵ Biwater amicus curiae brief (n 79) para 9.

²¹⁶ ibid para 53; Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Final Award) (n 76) para 380.

²¹⁷ Biwater amicus curiae brief (n 79) para 60.

²¹⁸ Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Final Award) (n 76) paras 514–515.

²¹⁹ ‘it is a well-established principle of international law that an investor cannot seek compensation from a state because of its own poor performance and weak business planning’ and ‘international investment law is not intended to protect investors from the normal commercial risk inherent in their business ventures and in the host country's economic environment, including risk arising from an investor's own conduct’. ibid para 440.

²²⁰ ibid paras 807, 808, 814.

²²¹ ibid para 359. These recognitions were the bases of its acceptance of amicus curiae submissions.

²²² Glamis Gold Ltd v United States (Final Award) (n 45) para 8.

²²³ ibid.

²²⁴ ibid paras 353–536.

²²⁵ ibid paras 616, 627.

²²⁶ ibid paras 756–830.

²²⁷ Eg the nationality of Glamis and the significance of the environmental and cultural preservation objectives underlying the measures (Friends of the Earth amicus curiae brief (30 September 2005)); the relationship between the obligation under art 1105 NAFTA and the host State's international law obligations to preserve and protect indigenous peoples' rights to land and its resources (Quechan Indian Nation amicus curiae brief (19 August 2004)).

²²⁸ This effect is recognized by the tribunals. E.g. Methanex (Decision on Amici Curiae) (n 29) para 49; Suez/vivendi First Order on Amici (n 50) para 22; Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (Procedural Order No. 5 (n 67)) para 54.

²²⁹ Tienhaara, ‘Third Party Participation in Investment-Environment Disputes: Recent Developments’ (n 46) 239.

²³⁰ In Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua S.A. v. Argentina (n 56), the tribunal rightly pointed out that ‘The purpose of amicus submissions is to help the Tribunal arrive at a correct decision by providing it with arguments, expertise, and perspectives that the parties may not have provided’ (para 23).

²³¹ Considering the ambiguous criteria of granting leave set out in the FTC Statement on Third Party Participation (n 39) and Rule 37(2) of the ICSID Arbitration Rules, this is a very broad discretion. Potential amici are required to make their arguments as effective as possible by, for example, conducting careful research or having input from experts and so on.

²³² Bartholomeusz (n 179) 276.

²³³ Eg recently, in the Piero Foresti, Laura de Carli and others v Republic of South Africa case (ICSID Case No ARB(AF)/07/01), several NGOs including the CIEL submitted ‘Petition for Limited Participation as Non-disputing Parties in Terms of arts 41(3), 27, 39, and 35 of the Additional Facility Rules’ (17 July 2009).

²³⁴ For more comprehensive list of such US Free Trade Agreements, see Tienhaara ‘Third Party Participation in Investment-Environment Disputes: Recent Developments’ (n 46) 233; Fauchald (n 133) 40.

²³⁵ As examined in Section (B) above, the Biwater tribunal's approach lacked this ‘response’, ie the actual examination of the content of the amicus curiae arguments.

²³⁶ Art 36 of the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (opened for signature 4 November 1950, entered into force 3 September 1953) 213 UNTS 221) and Rule 44 of the Rules of Court provide for the clear legal basis for the acceptance of amicus curiae submissions. For the ECtHR cases in which amicus intervention was allowed, see Bartholomeusz (n 179) 236–240. Even before 1998, the Court has accepted and taken into account amicus curiae submissions since Young, James & Webster v UK (App No. 7601/76, 7806/77) (1981) 4 EHRR 38. For the Court's practice before 1998, see Shelton (n 28) 635–637.

²³⁷ For the examination of the issue of confidentiality, see, Knahr and Reinisch (n 154); Chalker, ‘Bricks without Straw: the Confidentiality Order in Biwater Gauff (Tanzania) v United Republic of Tanzania (Biwater)’ (n 167); Egonu, MI, ‘Investor-State Arbitration Under ICSID: A Case for Presumption Against Confidentiality?’ (2007) 24 J of Intl Arb 5, 479Google Scholar; Seriki (n 114); J Misra and R Jordans, ‘Confidentiality in International Arbitration: An Introspection of the Public Interest Exception’ (2006) 23 J of Intl Arb 1.