The European Commission: Ami Fidèle or Faux Ami? Exploring the Commission’s Role as Amicus Curiae in ICSID Proceedings

In: European Investment Law and Arbitration Review Online
Alexander G. Leventhal
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Akshay Shreedhar
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ICSID’S Rule 37(2) introduced into the ICSID system a process by which a nondisputing party may make submissions as an amicus curiae. While amicus submissions have existed in the ICSID system for nearly 20 years, the majority of Rule 37(2) applications have been filed only recently by one party – the EU Commission – on one issue – the applicability of the arbitration agreements in intra- EU BIT S. In this article, we explore how tribunals and ad hoc committees have addressed these applications, which do not seek to provide insight on a particular issue in relation to the merits (as past amicus have), but to strip the ICSID process of jurisdiction over all intra- EU BIT disputes.

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