The legal standard on amicus curiae participation in international investment arbitration has been forged by the judicial development of legal rules and, in parallel, the modification of normative sources, such as the ICSID Arbitration Rules. Current and future decisions by arbitral tribunals on the participation of amicus curiae in a given dispute must abide by this consolidated standard. In June 2012, the arbitral tribunal in Joint ICSID Cases No. ARB/10/15 and No. ARB/10/25 released a procedural order, rejecting an amicus petition. This Order contains various deviations from the applicable legal standard and severely restricts the options for amicus participation. The recent attempt to strengthen the legitimacy of international investment arbitration by allowing for greater amicus participation and the acknowledgement of the interdependence of investment law and other areas of international law is thereby put in peril.
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ECCHR, supra note 18, at 1.
UNCITRAL, Report of Working Group II, supra note 5, at para. 52.
Newcombe & Lemaire, supra note 31, at 37. For another case: Pacific Rim, supra note 2, and the argumentation in the amicus petition itself of 2 March 2011, 2.
Choudhury, supra note 14, at 791.
Buckley & Blyschak, supra note 12, at 15–16.
UNCITRAL, Working Group II, supra note 5, Art. 5 (1) (4) (d); NAFTA, Statement of the Free Trade Commission, supra note 3, B (3) (d).
Anne van Aaken, “Fragmentation of International Law: The Case of International Investment Protection”, University of St. Gallen Law and Economics Research Paper Series (2008), available at http://ssrn.com/abstract=1097529.
McLachlan, supra note 7, at 369–374; ILC, Fragmentation of International Law, supra note 55, at para. 413 et seq.; But see the recent refusal that such a customary norm of systemic integration existed under international law in: Electrabel,supra note 2, at para. 4.130. The tribunal did, however, take into account non investment law (Law of the European Union), but for different methodological reasons.
Biwater, supra note 2, Award of 24 July 2008, para. 601 and Amicus Curiae Submission of 26 March 2007.
ILC, Fragmentation of International Law, supra note 55, at para. 45.
UNCITRAL, Working Group II, supra note 5, Art. 5 (2), para. 35; NAFTA Statement of the Free Trade Commission, supra note 3, at para. 2 (c)–(e); Aguas Provinciales de Santa Fe, supranote 2, at paras. 24, 29, 32.
UNCITRAL, Report of Working Group II, supra note 5, at para. 49.
UNCITRAL, Report of Working Group II, supra note 5, at para. 77.
UNCITRAL, Report of Working Group II, supra note 5, at para. 77.
Van Harten, supra note 9, at 327–328.
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The legal standard on amicus curiae participation in international investment arbitration has been forged by the judicial development of legal rules and, in parallel, the modification of normative sources, such as the ICSID Arbitration Rules. Current and future decisions by arbitral tribunals on the participation of amicus curiae in a given dispute must abide by this consolidated standard. In June 2012, the arbitral tribunal in Joint ICSID Cases No. ARB/10/15 and No. ARB/10/25 released a procedural order, rejecting an amicus petition. This Order contains various deviations from the applicable legal standard and severely restricts the options for amicus participation. The recent attempt to strengthen the legitimacy of international investment arbitration by allowing for greater amicus participation and the acknowledgement of the interdependence of investment law and other areas of international law is thereby put in peril.
All Time | Past 365 days | Past 30 Days | |
---|---|---|---|
Abstract Views | 665 | 34 | 3 |
Full Text Views | 132 | 7 | 0 |
PDF Views & Downloads | 163 | 24 | 0 |