Safeguarding the Environment? The Effectiveness of Amicus Curiae Submissions in Investor-State Arbitration

in International Community Law Review
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Although amicus curiae participation in investor-state arbitration is important in bringing different insights into the settlement of investment disputes, which often involve issues of public concern, little research has been conducted into the extent to which amicus curiae submissions have had the substantial impact on the outcome of the disputes. Using three cases which involved challenges to the host states’ environmental measures as examples, this paper identifies the approaches amici curiae have taken to advance their environmental arguments, and examines whether these arguments have been considered and addressed by arbitral tribunals.

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References

11

Ishikawa, supra note 3, pp. 394–398.

22

Ishikawa, supra note 3, pp. 392–393. See also J. Harrison, “Human Rights Arguments in Amicus Curiae Submissions: Promoting Social Justice?” in P-M. Dupuy, F. Francioni and E-U. Petersmann (eds.), Human Rights in International Investment Law and Arbitration (2009) p. 414.

56

Fauchald, supra note 2, pp. 11–13.

86

Ibid., pp. 223–226.

87

Ibid., pp. 226–227.

88

Ibid., pp. 227–230.

131

Tudor, supra note 128, pp. 163–168; Schreuer, supra note 128, pp. 374–380. For the arbitral practice, see Tecmed, supra note 114, at para 154; cms Gas Transmission Company v Argentine Republic, icsid Case No. arb/01/8, Award (12 May 2005) at paras 273–274; International Thunderbird Gaming v Mexico, Award (26 January 2006) at para 147.

132

Dolzer and Schreuer, supra note 112, pp. 145–146.

133

Ibid., pp. 141, 148–149.

142

Ibid., pp. 189–190.

143

Ibid., pp. 190–195.

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