Civil Society in Investment Treaty Arbitration

Status and Prospects

Series:

Civil Society in Investment Treaty Arbitration: Status and Prospects provides an overview of the evolution of civil society’s participation as amicus curiae before ICSID tribunals and ad hoc tribunals applying the UNCITRAL Arbitration Rules. That evolution fits within a broader movement towards transparency in investment treaty arbitration. By looking at the procedural roles available to civil society before other jurisdictions, the book questions whether the amicus role could be expanded. El-Hosseny ultimately shows how substance and procedure closely intertwine. The issue of civil society’s participation in investment treaty arbitration transcends the procedural realm. It is equally about arbitral tribunals’ openness vis-à-vis public interest, environmental protection and human rights issues—a crucial consideration in ongoing debates over the legitimacy, and future, of investor-state arbitration.
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Biographical Note

Farouk El-Hosseny, Ph.D. (Leiden University, 2016) is an international arbitration practitioner. He has co-authored a number of articles and chapters on international arbitration, including Amicus Acceptance and Relevance: The Distinctive Example of Philip Morris v. Uruguay (Netherlands International Law Review, 2016) and Non-Compensatory Damages in Civil and Common Law (Global Arbitration Review Guide to Damages, 2016).

Table of contents

List of Abbreviations

Introduction
 1 Concepts and Definitions
  i  The Concept of ‘civil society’
  ii  ‘Amicus curiae’ and ‘third party intervention’ Procedures
 2 Approach and Methodology
  i  Approach
  ii  Methodology
 3 Structure

Part 1: Civil Society Participation before Investor-state Tribunals


 Introductory Remarks
 1 Identifying the ‘public interest’ in an Investor-state Arbitration Context
  1.1  A Structural Stress Test: ‘public interest’ Pressure on Foreign Investors’ Rights and Host States’ Obligations
  1.2  Plenty of ‘hard law’ Rights, Few ‘soft law’ Obligations: A Look at the International Framework on Foreign Investment Protection
  1.3  Earlier Examples of Public Interest Issues Raised in Investor-state Disputes
  1.4  Adjudication à sens unique? Some of the Earlier Criticism of Investor-state Tribunals’ Awards
  1.5  Impact of the International Commercial Arbitration Model on Investor-state Arbitration and Civil Society’s Role
 2 Procedural Rules Governing Civil Society’s Participation as micus curiae
  2.1  Acceptance of Civil Society’s Participation as Amicus curiae
  2.2  Formalization of Amicus curiae Participation – The Opening Up to ‘third persons’
 3 From Theory to Practice: Investor-state Tribunals’ Decisions on Amicus curiae Participation
  3.1  Earlier Tribunals Inspired by the Methanex Precedent
  3.2  Tribunals That Applied Amended and Recently-Adopted Rules
  3.3  Common (Procedural) Grounds
 4 Civil Society Participation: Where Procedure Intertwines with Substance
  4.1  Are Environmental Protection and Human Rights Issues Relevant to the Adjudication of Investor-state Disputes?
  4.2  The leitmotiv of Environmental Protection
  4.3  Civil Society as a Human Rights Advocate
  4.4  Representing the Under-represented: Civil Society and Indigenous Groups
 5 An Appraisal of Civil Society’s Amicus curiae Role
  5.1  Procedural Developments: Amicus curiae Intervention Crystallized
  5.2  ‘Mixed results’ – Do Investor-state Tribunals Consider Amici’s Substantive Arguments?
 6 Concluding Remarks

Part 2: Civil Society Participation before Other Jurisdictions: Four Models


 Introductory Remarks
 1 Absent, but Not Entirely: Indirect Participation at the icj
  1.1  Contentious Proceedings
  1.2  Advisory Proceedings
 2 Standing before International Human Rights Jurisdictions
  2.1  Civil Society as a Victim of Human Rights Violations before the ECtHR
  2.2  Representation of Victims of Human Rights Violations before the IACtHR and achpr
 3 A ‘friend of the court’ Outside the Realm of Investor-state Arbitration
  3.1  The amicus curiae Procedure – A Common Law Inspiration
  3.2  wto Panels and the Appellate Body’s Restrictive Approach
  3.3 International Human Rights Jurisdictions’ Liberalism
 4 The Peculiar Case of Third Party Intervention
  4.1  Third Party Intervention – A Look at the us Model
  4.2  Third Party Intervention as Practiced before International Jurisdictions
  4.3  Towards a Common Understanding of ‘third party intervention’?
 5 Concluding Remarks

Part 3: An Enhanced Role for Civil Society before Investor-state Tribunals?


 Introductory Remarks
 1 Transcending amicus curiae Submissions
  1.1  The Inherent Limitations of the amicus curiae Role – A Comparative Perspective
  1.2  To be an amicus or Not to be: Fundamental Differences with Third Party Intervention
 2 Looking for a Procedure to Uphold Third Parties’ Direct Interest in Investor-state Arbitration
  2.1  The Impossibility of ‘adding strangers to the arbitration’ – ups v. Canada
  2.2  Extreme Circumstances, Standard Limitations – Aguas del Tunari v. Bolivia
  2.3  Jurisdictional Barriers Set by the ups and Bechtel Tribunals
 3 The Access to Justice Principle: The Basis for Civil Society’s Third Party Intervention?
  3.1  Access to Justice under International Law
  3.2  Is There a Civil Society ius standi before Investor-state Tribunals?
 4 What Conditions Would Govern Civil Society’s Third Party Intervention?
  4.1  Rationalizing Civil Society’s Third Party Intervention in Investor-state Arbitration
  4.2  Procedural Void and Substantive Barriers: How to Reconcile Third Party Intervention with the Investor-state Arbitration Regime?
 5 Concluding Remarks

Conclusion

Bibliography
Summary
Curriculum Vitae

Readership

All interested in issues of transparency and third party participation in investment treaty arbitration, including practitioners submitting, or dealing with, amicus curiae briefs.

Index Card

Collection Information