Requirements for Amicus Curiae Participation in International Investment ArbitrationA Deconstruction of the Procedural Wall Erected in Joint ICSID Cases ARB/10/25 and ARB/10/15 (original) (raw)
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The intervention of amicus curiae in investment arbitration is a matter of great interest and it will continue generate a legal debate in the future. In the wake of multiple courts and some tribunals, several rules on investment arbitration have increasingly recognized the possibility that the general interest is protected through amicus submissions. The fact that a party of the investment arbitration is a state and problems transcend the interests of the specific parties involved in the arbitration justify the progressive implementation of the principle of transparency, which has been traditionally rejected in commercial arbitration, in the field of investment arbitration.The acceptance of the institution of amicus curiae in BITs and arbitration rules has resulted recently in various NGOs submitting amicus briefs in relevant international arbitrations. Additionally, UNCITRAL and ICC are currently developing two projects in the field of investment arbitration that are going to address the issue of amicus briefs. Taking all of this data as reference, this Note reflects on the most appropriate regulation of the institution of amicus curiae. This means taking into account a multiplicity of factors, both internal -concerning the content and the submission process- and external -referring to the relationship of these non-parties with other participants in investment arbitration-. The approach taken regarding this regulation is multiple, since the institution of amicus curiae is controversial. Against the multiple benefits preached mainly by NGOs, investors believe that the acceptance of amicus curiae brings various injustices. The proposal advocated by this Note is twofold. On the one hand, the acceptance of unsolicited amicus briefs should be governed by a set of criteria able to block any submission that do not benefit the outcome of arbitration and are excessively detrimental to the parties and arbitrators of the investment dispute. On the other hand, institutions managing investment arbitrations could establish an new institution exclusively and permanently dedicated to defending the collective interest. This proposal, although suggestive, would imply a major change in the system and therefore their perspectives of success would possibly materialize in the medium to long term.
Jurisdiction ratione temporis in International Investment Arbitration
The Law & Practice of International Courts and Tribunals, 2017
Issues concerning the temporal scope of jurisdiction of international investment arbitration tribunals are attracting increased attention due to recent events, such as the denunciation of the icsid Convention by some states, the denunciation of bilateral investment treaties from which the tribunals draw their jurisdiction, or the provisional application of other treaties concerning investment protection. The solutions offered by most arbitral tribunals are in line with international customary rules on the law of treaties, a point which deserves attention as further proof of the cohesiveness of international investment law with public international law.
Advance Legal Research Foundation, 2024
This research studies the effect of Amicus Curiae submissions on rulings in investment arbitrations by the International Centre for Settlement of Investment Disputes (ICSID investment arbitration). This research uses empirical test on ICSID cases to explore how Amicus Curiae, the non-disputing parties, affects the final judgment of arbitration on both substantive and procedural aspects. Based on the theoretical guidance of influential people on the affected side and market supply and demand, this analysis probes the content, experience and current situation of related amicus curiae submissions. Outcome shows that Amicus can have persuasive effect on tribunal, but dependes on how much they are close to tribunal views, the social and specialized background of the Amicus Curiae and the kind of submissions. In this way it also illustrates the complexity of sustainability in investment arbitration... the study derives the absence of transparency, objectivity and neutrality inherent in the framework of regulation and recommends that ICSID principles be remodelled for a more liberal and sustainable mode in regulation to bring greater openness, fairness and probity in process of arbitration so as to ensure impartiality. The findings illustrate the urgent need for articulating a regulation that is designed to control Amicus Curiae participation and, equally vividly, reflect how court discretion holds the key to balancing an over the long-term effects of these interventions. This study sheds light on the nuanced idea of sustainability in investment arbitration while furthering our knowledge of the procedural and substantive factors affecting ICSID rulings.
Jurisdiction and Admissibility in Investment Arbitration. A View from the Bridge at the Practice
The Law & Practice of International Courts and Tribunals
The jurisdiction of international courts and tribunals and the admissibility of inter-State claims under international law are central to international adjudication, operating as a gateway to the litigation on the merits – the end goal of the proceedings. Still, these concepts remain inherently under-defined, and can be shaped in multiple ways to formulate preliminary objections in international litigation in general. International investor-State arbitration adds specific aspects and complexities to the issue. This introductory contribution accounts for the theoretical deficiencies underpinning the notions of jurisdiction and admissibility, with a special focus on international investment arbitration, and introduces the selected case-studies which form the subject-matter of the articles in this Special Issue. The recent Urbaser award is also used as an example of the unexplored potential of novel – and critical – legal argumentation relating to the jurisdiction of investment tribunals.
Investment arbitration can contribute to the promotion of the international rule of law through a wider use of legal norms in the international society and through the protection of private persons’ rights. However, as shown by the European Union’s approach in this field, investment arbitration can only be a useful complement to the rule of law within the State if it is reformed to incorporate some elements of permanent courts. Firstly, legal certainty requires clearer and more predictable case-law, which would be eased by an appeal system based on a permanent body. Secondly, procedural fairness needs to be increased, especially through new appointment methods. Thirdly, several mechanisms can foster transparency.
Law and World, 2020
An economic development of the states highly depends upon the fl ow of private international investment. Whilst the creation of suitable investment climate which would guarantee the fair and equitable treatment of foreign investment within the depoliticised and impartial dispute resolution system had been objective of the World Bank, the International Centre for Settlement of Investment Disputes was established under its auspices. The primary objective of the ICSID Convention has been viewed on facilitating and safeguarding of private international investment through the creation of a favourable investment climate. Arbitration under the ICSID, serves not only in favour of investors but also of host states. Whilst the favourable means are offered to the both parties for dispute resolution according to the major provisions of the Convention, the "[e]xecution of the awards", represent the slight alteration in the disadvantageous position of the foreign investor. The aforementioned alteration as the time consuming process, fulfi lled within the state bureaucracy is more sensibly approached by the foreign investors in developing countries, under which the political risk and demand for foreign investment protection is always one of the highest extent. However, by virtue of signing the Convention, the states not only accept the proposed dispute resolution mechanism, but also declare and desire to welcome the foreign investment. As states aforementioned attempts could be related to the creation of the Global Forum for delivering better Investment Climate, the demands of the World Bank in the sphere is one of the most signifi cant importance.
Even though international investment law (IIL) has developed at an unprecedented pace, its newly acquired popularity has come at a high cost. In a time of crisis of Western liberal-democracy and questioning of the economic model even by its fierce advocates, it has become easy prey for those disappointed with the distribution of wealth and prestige and for the political class, which has tried to “outsource” responsibility for problems unresolved domestically. Deficiencies in the construction of IIL has aggravated a legitimacy crisis. Unfortunately, current reform initiatives do not address the roots of the problem. In this paper, I suggest ways of solving the legitimacy problem and for restructuring the normative framework. I start by asking whether the legitimacy crisis is an actual problem worth analysis or if it is a theoretical exercise void of practical relevance (Part 2). On the assumption that addressing this issue is necessary for the subsistence of IIL, three possible sources of legitimacy are indicated. Having opted for so-called social legitimacy, I refer to the Weberian legal-rational model (Part 3). In order to decide which stakeholders should be allowed to influence investment law directly, I recall Leon Petrażycki’s notion of the law’s superiority over morality (Part 4), which leads me to the conclusion that IIL reform should focus on home states, rather than on the investor-host state balance. With the backdrop of the subjective scope of investment law, I highlight major substantive shortages of IIL (Part 5). In accordance with the theory of legal impulsions, I subsequently argue that the current restrictive definition of IIL not only does not reflect the reality of arbitral decision-making but also hinders meaningful reform debate. From this rift between formal definition and actual understanding of IIL stem misconceptions about domestic problems that are transferred to an international plane. I argue that without reaching domestic compromise in terms of wealth distribution, current international initiatives constitute an anaesthetic, at best (Part 6). The solution advocated in this paper is to fully embrace the principle of rule of law as the substantive contents and formal requirements with respect to IIL. It is argued that an investment consensus based on this principle simultaneously resolves the legitimacy concerns and contributes towards the development of law (Part 7). Because investment law both constitutes and is created by the international investment community, a separate passage is dedicated to the relationship between the rule of law and the rule of arbitrators, and its possible impact on legitimacy (Part 8). Having thus prepared the ground for internalisation of the rule of law, I argue that IIL can embrace a broader standard (thick rule of law) than what would be reasonable in other branches of public international law (Part 9), which is adapted for investment purposes (Part 10). I conclude with general remarks (Part 11).
International investment law and arbitration
Analogies in International Investment Law and Arbitration
International Investment Law is one of the most dynamically growing fields of International Law as shown by the volume of Bilateral Investment Treaties (BITs), and investment chapters in a growing numbers of regional and mega-regional trade agreements. This paper explores the origin, evolution and operation of International Investment Law. It discusses the main actors, the protections afforded to foreign investments and investors, and the content of modern BITs. The legal issues and challenges International Investment Law faces today are brought into perspective. Particularly, this paper provides an assessment of the measures put forth by the European Union aimed at transforming the traditional investor-State arbitration system to an Investment Court System. An examination of the NAFTA re-negotiations is also presented, including the impact that CETA, a trade deal between the EU and Canada could have in the outcome of the current re-negotiations.
he present article proposes two different approaches to determine whether the failure to comply with prior steps to arbitration —negotiations or domestic litigation for a period of time— is a matter pertaining to the admissibility of a claim, jurisdiction or seisin of a tribunal. Under the first approach, the non-compliance with the prior steps represent an implicit rejection of the arbitration offer made by the host State and thus their legal value is jurisdictional strictu sensu. Under the second approach, the legal value of the prior steps is that they constitute prerequisite conditions for the seisin of a tribunal. Under either approach, the juridical outcome proposed by this article is that a tribunal may not address the merits of the case submitted.
Who Decides Who Decides in International Investment Arbitration
University of Pennsylvania Journal of International Law, 2013
The past twenty years have witnessed a dramatic rise in international adjudication, and especially in international investment arbitration. As international investment arbitration has become more prominent and pervasive, one of its fundamental tenets has come under fire: the practice of having the parties themselves nominate one or more of the arbitrators. Critics contend that party-appointed arbitrators are inherently biased and thus propose eliminating party-appointments altogether. In this article, I argue that moving away from party-appointed arbitrators is unwarranted and unwise, and would too radically transform international investment arbitration. Instead, I propose a simpler solution: adopting stricter arbitrator challenge rules and enlarging the pool of arbitrators. There is no need to gut the arbitration selection system to fix it. Instead, the solution lies in improving the process of deciding who decides the world's international investment disputes.