TESTING AMICI CURIAE IN INTERNATIONAL LAW: RULES AND PRACTICE

Electronic copy available at: http://ssrn.com/abstract=2405145

TESTING AMICI CURIAE IN INTERNATIONAL LAW: RULES AND PRACTICE

Luigi Crema*

Abstract

Amici curiae are persons interested in a trial but not party to it that submit an unsolicited written brief or make an oral statement before the bench. The wide-spread possibility to submit amicus curiae briefs in international courts and tribu-nals is a recent phenomenon. Traditionally international procedures did not allow this kind of intervention. The purpose of this paper is to take stock of this evolution and assess the functioning of the new procedures. It does this by looking compara-tively at several courts and tribunals, in order to get a picture of the commonalities and common problems surrounding this general development. Two sets of ques-tions are considered, the first centered on issues of transparency and public partici-pation, the second on the rights of the parties. Among the elements that deal with public participation, the paper examines the clarity of the procedures, the equality of the treatment of all the interested entities, the conditions and reasons for accept-ing or refusing the proposed amici, and the inclusion of the amici submissions in the text of the final decision. The other set of questions, concerning the rights and interests of the parties to the dispute, includes their role in the submission phase and their interest in efficient proceedings. In answering these questions, serious issues of transparency, publicity, and the political role of states acting as amici emerge. The paper concludes that further reflection is necessary on the origins of these problems, but that a first, important step can be achieved by addressing these procedural issues.

Keywords: amicus curiae; transparency; due process; international courts; civil society; public participation.

* Research Associate, Università degli Studi di Milano. This paper is the fruit of con-versations which unfolded in the rich environment of the Jean Monnet Center at the New York University, in particular with Roberto Bin, Margaret Chon, Rafael Domingo, Barbara Guastaferro, Rike Kraemer, Janez Kranjc, George Letsas, Arie Rosen, and especially with the Director of the Center, Joseph Weiler. To all of them a heartfelt thanks for the close camarade-rie and their insights into my work. My thanks also to Barry Appleton, Anna Dolidze, Robert Howse, Maria Chiara Massetti, Cesare Pitea, Michele Potestà, Nicholas Soroshinski, Tullio Treves and the anonymous reviewers of the IYIL for their help and insightful observations at different stages of this work.

Electronic copy available at: http://ssrn.com/abstract=2405145

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1. introduCtion

1.1. Its Diffusion, a Recent Phenomenon in International Law

In the 2010 and 2011 proceedings of the advisory opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS) received a joint brief from Greenpeace and the WWF.1 The rules regulating the procedure of the ITLOS and of the Chamber are clear in prohibiting the submission of briefs by private entities during advisory proceedings and, ac-cordingly, their observations were not attached to the official record. Nevertheless, the brief was published on the ITLOS website and placed at the disposition of the Judges, and during the hearings the amici made an oral statement for the press in a special room of the Tribunal of Hamburg.2

This is one of several signs of the keen interest and active efforts of non-State actors to intervene in international litigation and of a certain degree of benevolence towards them coming from international courts and tribunals. Requests of this sort are not entirely new in international law, even if the majority of them have been made recently: already in the second post-war period a few attempts were made (and then denied) by non-governmental organizations (NGOs), before the International Court of Justice (ICJ).3 Then, in the 1980s, the European Court of Human Rights (ECtHR) deemed them a consolidated practice: Rule 37.2, introduced in 1983, was clear in allowing any concerned person other than the applicant to petition the

1 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, Advisory Opinion of 1 February 2011.

2 Articles 84 and 133 of the ITLOS Rules permit only States and international organizations to participate as amici curiae in contentious cases before the Tribunal and the Seabed Disputes Chamber. See gautier, “NGOs and Law of the Sea Disputes”, in treves et al. (eds.), Civil Society, International Courts and Compliance Bodies, The Hague, 2005, p. 233 ff. A comment on the Advisory Opinion has been drafted by the President of the Seabed Disputes Chamber himself, treves, “Non-Governmental Organizations before the International Tribunal for the Law of the Sea: The Advisory Opinion of 1 February 2011”, in Le 90e anniversaire de Boutros Boutros-Ghali / The 90th Birthday of Boutros Boutros-Ghali, Maubeuge, 2012, p. 255 ff.

3 See International Status of South West Africa, ICJ Pleadings, 1950, p. 327; Asylum case, ICJ Pleadings, 1950, Part II, p. 227; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ Pleadings, 1970, Part 2, pp. 636-640, 644, 672, 678-679. See ospina, “Non-Governmental Organizations and the International Court of Justice”, in treves et al. (eds.), cit. supra note 3, pp. 227-232; CLark, “The International League for Human Rights and South West Africa 1947-1957: The Human Rights NGO as Catalyst in the International Legal Process”, Human Rights Quarterly, 1981, p. 116 ff.; rovine and d’amato, “Written Statement of the International League for the Rights of Man Filed with The International Court of Justice in the Namibia Question”, New York University Journal of International Law and Politics, 1971, p. 335 ff.

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President for the opportunity to clarify points to the Court.4 Also the Iran-USA Claims Tribunal and the Inter-American Court of Human Rights (IACtHR) oc-casionally during the same years allowed amici participation.5 However, it was around the turn of the millennium, after the US – Gasoline dispute at the World Trade Organization (WTO)6 that the pressure to be heard, coming from NGOs, again increased, and this time was gratified. States have reacted in different ways, with approval or disapproval: with formal amendments to existent procedures, as in the case of the Arbitration Rules of the International Centre for Settlement of Investment Disputes (ICSID), or with resistance to these changes, as in the case of the WTO. This paper, instead of focusing on just one of these diverse approaches, considers them all together, as expressions of a unique movement that character-izes international law in general.7 At this moment there is a significant amount of practice involving amici curiae, which makes it possible to carry out a considered reflection on this significant shift. The purpose of the following analysis is to weigh how these procedures work in practice, to determine if there are outstanding issues that still prevent them from working properly and that must be addressed, and to provide a detailed overview for further reflection on the transformation of interna-tional litigation.

1.2. Amicus Curiae: A Definition

There is no official definition in international law of the amicus brief as a way of intervening in a proceeding – there are many jurisdictions in international law,

4 mahoney, “Developments in the Procedure of the European Court of Human Rights: The Revised Rules of Court”, YEL, 1983, p. 141 ff. For cases prior to this reform see doLidze, “Anglo-Saxonizing Rights: Transnational Public Interest Litigation in Europe”, ASIL Proceedings, 2011, p. 50 ff.

5 The newly-established Inter-American Court of Human Rights accepted amicus briefs coming from private entities based in the United States in its first advisory opinions, even if the American Convention and rules did not explicitly provide for this possibility. moyer, “The Role of Amicus Curiae in the Inter-American Court of Human Rights”, in La Corte-Interamericana de Derechos Humanos. Estudios y documentos, San José, 1986, p. 103 ff.; BuergenthaL, “The Advisory Practice of the Inter-American Court of Human Rights”, AJIL, 1985, p. 1 ff. The Iran-USA Claims Tribunal sometimes accepted amici briefs under Art. 15 of the UNCITRAL Arbitration Rules of 1976 beginning with Iran v. USA, Case A/15, Award No. 63-A/15-FT of 20 August 1986, reproduced in Iran-USA Cl. Tr. Rep., p. 43.

6 US – Gasoline, Report of the Panel of 29 January 1996, WT/DS2/R. See aLa’i, “Judicial Lobbying at the WTO: The Debate over the Use of Amicus Curiae Briefs and the U.S. Experience”, Fordham International Law Journal, 2000, p. 68 ff.; and CawLey, “Friend of the Court: How the WTO Justifies the Acceptance of the Amicus Curiae Brief from Non-Governmental Organizations”, Penn State International Law Review, 2004, p. 61 ff.

7 Scholars have mainly focused on one specific jurisdiction at a time. However, there are some exceptions: see, for example BarthoLomeusz, “The Amicus Curiae before International Courts and Tribunals”, Non-State Actors and International Law, 2005, p. 209 ff.

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and no single code of procedure. For example, in 2005 an ICSID Tribunal gave this definition:

“An amicus curiae is, as the Latin words indicate, a ‘friend of the court’, and is not a party to the proceeding. Its role in other fora and systems has traditionally been that of a non-party. […] [Its] traditional role […] is to help the decision maker arrive at its decision by provid-ing the decision maker with arguments, perspectives, and expertise that the litigating parties may not provide. […] [A]n offer of assistance – an offer that the decision maker is free to accept or reject”.8

Beside amicus curiae, other decisions and rules of procedure refer to “third persons”, “non-disputing parties”, or “interested third parties” (see infra section 2). Therefore, for the purposes of this paper a broad definition will be employed: the expression amicus curiae will be used to refer in general to procedures that allow any entity (including States, organs of States and of international organizations, and private entities) interested in a trial but not party to it, to submit an unsolicited written brief or make an oral statement on a point of law, fact, or value before an international court or tribunal.

1.3. The Focus

The introduction of the amicus curiae in international adjudication raises three major strands of problems. The first regards the subjectivity of non-State actors in international law and litigation: in an international law model conceived around the State the possibility for private entities to participate in international legal disputes raises several conceptual problems. This issue has received a great deal of attention from the literature dedicated to assessing the role of NGOs in international law,9 and this paper will not treat it at length.

8 Suez, Sociedad General de Aguas de Barcelona S.A. and Interagua Servicios Integrales de Agua S.A. v. Argentina, ICSID Case No. ARB/03/17, Order in Response to a Petition for Participation as Amicus Curiae of 17 March 2006, para. 13. See similarly Aguas Argentina S.A. and Others v. Argentina, ICSID Case No. ARB/03/19, Award on the Petition for Transparency and Participation as Amicus Curiae of 19 May 2005, para. 8, and the IACtHR Rules of the Court (2009), Art. 2.3. Legal scholars give similar definitions of amici curiae in international law. See sheLton, “The Participation of Nongovernmental Organizations in International Judicial Proceedings”, AJIL, 1994, p. 611 ff.; BarthoLomeusz, ibid., p. 211; sands and maCkenzie, “International Courts and Tribunals, Amicus Curiae”, in woLfrum (ed.), The Max Planck Encyclopedia of Public International Law, Oxford, 2008, online edition (available at: <http://www.mpepil.com>), para. 1.

9 See sheLton, ibid.; distefano, “NGOs and the WTO Dispute Settlement Mechanism”, in treves et al., cit. supra note 2, p. 261 ff.; vieruCCi, “NGOs before International Courts and


The second regards the function of amici curiae in contemporary international law, and this question too has been extensively explored. Legal scholarship has so far stressed that amici curiae enhance transparency;10 bring civil society clos-er to distant international disputes;11 provide locus standi to otherwise excluded stakeholders;12 give legitimacy to international courts;13 and democratizes inter-national law.14 In short, because they open up international courts to the recipients of decisions and bring civil society closer to those institutions, amici curiae have been depicted as an instrument to obtain a more complete account of the interests and opinions related to an international dispute or to grant a “proper administration of justice”.15

The third strand regards the suitability of these new procedures, and their com-pliance with some basic criteria of transparency and due process. If a great deal of attention has already been dedicated to stressing the positive effects of these pro-cedures, less attention has been devoted to the procedures themselves, to the qual-ity of their transparency and effective functioning. This paper will deal with this last point, through an analysis of the procedural rules (when they exist) of several

Tribunals”, in dupuy and vieruCCi (eds.), NGOs in International Law, Northampton, 2008, p. 155 ff.; and de BraBandere, “NGOs and the ‘Public Interest’: The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes”, Chicago Journal of International Law, 2011, p. 85 ff.

10 Charnovitz, “Transparency and Participation in the World Trade Organization”, Rutgers Law Review, 2004, p. 927 ff. See also Methanex Corp. v. USA, Decision on Petitions from Third Persons to Intervene as “Amici Curiae” of 15 January 2001, para. 49; and Aguas Argentina S.A. and Others v. Argentina, ICSID Case No. ARB/03/19, Petition for Transparency and Participation as Amicus Curiae of 19 May 2005, para. 22.

11 harLow, “Global Administrative Law: The Quest for Principles and Values”, EJIL, 2006, p. 187 ff., pp. 203-204; franCioni, “Access to Justice, Denial of Justice and International Investment Law”, EJIL, 2009, p. 738 ff.

12 See the speech of former US President Clinton, proposing that “[…] the WTO provide the opportunity for stakeholders to convey their views, such as the ability to file amicus briefs, to help inform the panels in their deliberation”. Remarks by the President at the Commemoration of the 50th Anniversary of the World Trade Organization, 18 May 1998.

13 d’aspremont and de BraBandere, “The Complementary Faces of Legitimacy in International Law: The Legitimacy of Origin and the Legitimacy of Exercise”, Fordham International Law Journal, 2010-2011, p. 190 ff., in particular pp. 234-237. Methanex Corporation v. USA, Amended Petition of Communities for A Better Environment, The Bluewater Network of Earth Island Institute, and the Center for International Environmental Law to Appear Jointly as Amici Curiae of 13 October 2000, para. 2.

14 Choudhury, “Recapturing Public Power: Is Investment Arbitration’s Engagement of the Public Interest Contributing to the Democratic Deficit?”, Vanderbilt Journal of Transnational Law, 2008, p. 775 ff., pp. 814-818; von Bogdandy and venzke, “On the Democratic Legitimation of International Judicial Lawmaking”, German Law Journal, 2011, p. 1366 ff.

15 Art. 36(2) of the ECHR; the NAFTA FTC Statement, cit. infra note 76, which speaks of “interests of fairness and the orderly conduct of arbitrations”. Similarly see Art. 15(1) of the UNCITRAL Rules of Arbitration, Art. 12 of the Dispute Settlement Understanding (DSU), and Art. 16(1) of the Working Procedures for Appellate Review of the WTO.

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international courts and tribunals, as well as their practice. The assessment will be conducted bearing particularly in mind (i) the idea of public participation, and (ii) the rights and interests of the parties to the dispute. With regard to the first idea, the analysis will test, inter alia, the clarity of the procedures and of the terms for requesting the intervention; the equality of the treatment of all interested entities; the conditions and reasons for accepting or refusing the proposed amici; and the emergence of the amici submissions in the final decision or in the case file. Then, the rights of the parties will be considered, with a look at their role in the submis-sion (whether they are involved in the submission and/or permitted to comment on the briefs, or whether judges and arbitrators manage them alone), as well as the efficiency of the procedure (whether the amici’s right to intervene places an exces-sive burden on the parties, and whether the intervention of other States as amici in disputes between private parties and States impairs the position of the private par-ties, or transforms international litigation into a unregulated political forum).

To achieve this overview, several international procedures16 for submitting amici curiae will be scrutinized separately (section 2). Then, at the end, there will be a comprehensive overview to offer a vision that synthesizes all of them (section 3). The ultimate aims of this analysis are two: the first is to describe several prac-tices now well-established, and to highlight some critical aspects with the purpose of polishing and ameliorating them. The second is to contribute to further discus-sion on the appropriateness of amicus curiae procedures in international law and on the role played by international courts in global governance.

2. anaLysis of the proCedures

2.1. Courts of Human Rights

2.1.1. The Strasbourg Court

The first international Court that envisaged a procedure for the submission of amici curiae was the ECtHR.17 The expression amicus curiae is not present in the

16 Amici curiae are also admitted in international criminal tribunals and in international administrative tribunals. Cf. respectively the Part II of treves et al. (eds.), cit. supra note 2, p. 105 ff, and the list provided by ruzie, “L’intervention devant les juridictions administratives in-ternationales”, in deCaux and pettiti (eds.), La tierce intervention devant la Cour européenne des droits de l’homme et en droit comparé, Bruxelles, 2009, p. 73 ff.

17 mahoney, cit. supra note 4, pp. 141-154; hampson, “Interventions par des tiers et le rôle des organisations non gouvernementales devant la Cour européenne des droits de l’homme”, in deCaux and pettiti (eds.), ibid., pp. 136-137; doLidze, cit. supra note 4, p. 50, with further references to early cases of the ECtHR; “Articolo 36”, in BartoLe, de sena and zagreBeLsky, Commentario Breve alla Convenzione europea per la salvaguardia dei diritti dell’uomo e delle libertà fondamentali, Padova, 2012, p. 685.


relevant texts. However, Article 36 of the ECHR18 (“Third party intervention”) pro-vides:

“1. In all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose nationals is an applicant shall have the right to submit written comments and to take part in hearings. 2. The President of the Court may, in the interest of the proper admin-istration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the ap-plicant to submit written comments or take part in hearings. 3. In all cases before a Chamber or the Grand Chamber, the Council of Europe Commissioner for Human Rights may submit written comments and take part in hearings”.19

This provision is completed by Article 44 of the Rules of the Court.20 According to these two provisions, four kinds of subject are allowed to intervene: the Member State(s) whose national(s) is/are applicant(s), the other Member States, persons concerned, and the Council of Europe Commissioner for Human Rights.

The first and third paragraphs grant a specific right to submit written com-ments, and a right to intervene in the hearings, to Contracting Parties whose nation-als are applicants and to the Council of Europe Commissioner for Human Rights. The Court has no discretionary power over these submissions. Paragraph 2, on the contrary, gives the Court the discretionary power to accept written comments or participation from other Member States and other persons. In practice, other Member States have so far been treated like those States whose nationals are appli-cants. The Court, even while acting under Article 36(2), always accepts their briefs and always allows them to intervene in hearings, as though by right. Therefore, in practice, all the Member States have the right to submit briefs and intervene. The reference to “persons” in paragraph 2 is very broad, and appears to exclude third States, NGOs and international organizations (IOs). However, in practice, NGOs, IOs and their organs (like the United Nations High Commissioner for Refugees)

18 Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, as amended by Protocols Nos. 11 and 14, CETS No. 5.

19 On this procedure and its practice see supra note 17 and zagoraC, “International Courts and Compliance Bodies: The Experience of Amnesty International”, in treves et al. (eds.), cit. supra note 2, p. 11 ff.; harBy, “The Experience of the AIRE Centre in Litigating before the European Court of Human Rights”, in treves et al. (eds.), cit. supra note 2, p. 41 ff.; frigessi di rattaLma, “NGOs before the European Court of Human Rights: Beyond Amicus Curiae Participation?”, in treves et al. (eds.), cit. supra note 2, p. 57 ff.; vajiC, “Some Concluding Remarks on NGOs and the European Court of Human Rights”, in treves et al. (eds.), cit. supra note 2, p. 93 ff.

20 As amended by the Court on 7 July 2003 and 13 November 2006; last edition of the Rules entered into force on 1 September 2012.

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have so far been included under the term person used in Article 36(2) of the ECHR and Rule 44(3) of the Rules of the Court, and this practice has never been chal-lenged by Member States, which have thus acquiesced to it.

While the procedure envisaged for the intervention of a Member State whose national is an applicant or the Council of Europe Commissioner for Human Rights is sufficiently clear (Rules 44(1) and 44(2)), the sections dedicated to the submis-sions of other entities (Rules 44(3), 44(5) and 44(6)) are more ambiguous. Rule 44(3) establishes a two-step procedure, with an early request to participate, and, in case of a positive answer, the actual submission of the brief. It does not specify the length or the content of the request, it just says that it should be “duly reasoned” and written in one of the two official languages of the Court (English or French).21 The request should be sent to the President of the Court within 12 weeks after either communication of the application has been given to the respondent Contracting Party, or the decision is made that a Grand Chamber will deal with it.22 If participa-tion is permitted, the President sets a new time limit and the briefs should be written in one of the official languages of the Court.23

There is no prescription regarding the length of the brief or the points that it may touch upon, but these questions are likely addressed by the President in the an-swer to the request.24 From an analysis of the practice (the communication from the Chambers to, and the briefs submitted by, the amici) the briefs may not put forward arguments in favor or against allegations, but may only contribute facts and legal analysis that will be helpful to the Court and that are expressions of the special exper-tise or interest of the proponent. The briefs are usually no longer than 20 pages, but the Court often limits them to fewer pages, depending on the issues at stake. Also in practice, publicity is provided by naming the amici accepted under Article 36(2) (but not those rejected), in the first paragraphs of the final decisions, along with the names of the parties and the description of the procedural phases of the proceedings.

Regarding the possibility to appear before the Court to present oral statements, this possibility is usually granted to Member States, but is rarely extended to other persons or entities.

2.1.2. The San José Court

The Inter-American Court of Human Rights officially introduced the possibil-ity to submit amici curiae in 2001,25 though there are examples of amici curiae sub-

21 Rule 44.3.b.22 Rules 44.3.b and 44.4.a and b.23 Rules 44.5, and 44.6. 24 Rules 44.3 and 44.5.25 Article 45.1 of the Rules of 2000, as amended in 2001, cf. pasquaLuCCi, The Practice

and Procedure of the Inter-American Court of Human Rights, Cambridge, 2003, p. 74 ff. and


mission appearing in practice even before, especially under the advisory jurisdic-tion.26 Today the submission of amicus briefs is regulated by Articles 2, 28 and 44 of its Rules of Procedure of 2009,27 and they are admitted in contentious proceed-ings, including monitoring compliance of judgments and provisional measures.28 Neither the Rules of Procedure of 2000 nor those of 2009 explicitly envisaged the possibility to submit amicus briefs under the advisory jurisdiction, but the Court usually invites them to participate, and often to present their observations orally.29

Article 2(3) defines an amicus curiae as “the person or institution who is unre-lated to the case and to the proceeding and submits to the Court reasoned arguments on the facts contained in the presentation of the case or legal considerations on the subject-matter of the proceeding by means of a document or an argument presented at a hearing”. Article 28 dictates the formalities for the submission of any brief to the Court, while Article 44 regulates amici curiae in detail. The latter provision reiterates that any person or institution can submit a brief. While it is clear that both NGOs and IOs and their organs fall under the term “institution”, it is not explicitly stated that other Member States can participate as amici, as they can under the ECtHR; until now the Court has not accepted (or has never received) requests by other Member States to participate as amici.

The practice preceding and following the amendments of 2009 consistently shows that the Court has taken a broad view of which subjects may submit the briefs: it accepted an amicus brief presented by a law firm on behalf of the petition-ers (at the time in which the role of parties before the Court was reserved to the Commission and the respondent State alone),30 briefs coming from an organ of the respondent State (the Ombudsman),31 briefs coming from organs of international organizations,32 and briefs coming from entities not based in the OAS countries.33

faúndez Ledesma, The Inter-American System for The Protection of Human Rights, 3rd ed., San José, 2007, p. 677.

26 moyer, cit. supra note 5; BuergenthaL, cit. supra note 5.27 Rules of Procedure of the Inter-American Court of Human Rights, approved by the Court

during its LXXXV Regular Period of Sessions, 16-28 November 2009.28 Articles 44(2) and (4).29 See for example Juridical Condition and Rights of Undocumented Migrants, Advisory

Opinion of 17 September 2003, Series A, No. 18; Article 55 of the American Convention on Human Rights, Advisory Opinion of 29 September 2009, Series A, No. 20.

30 The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Decision on Merits of 31 August 2001, Series C, No. 79, para. 52.

31 Baena Ricardo et Al. v. Panama, Decision on Merits of 2 February 2001, Series C, No. 72, para. 37; Barrios Altos v. Peru, Interpretation of the Judgment on the Merits of September 2001, Series C, No. 83, para. 7; Artavia Murillo et Al., (“In Vitro Fertilization”) v. Costa Rica, Decision on Preliminary Objections, Merits, Reparations and Costs of 28 November 2012, para. 13(35).

32 The United Nations High Commissioner for Refugees (UNHCR) often files briefs.33 For example, the Universidad de Valencia filed a brief in the case Vélez Restrepo and

Family v. Colombia, Decision on Preliminary Objection, Merits, Reparations and Costs of 3

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A previous request for authorization is not required: the submission of the brief is the request.34 The brief can be sent in electronic format,35 and it must be written in the working language of the case and bear the names and signatures of its authors.36 There is no limit on its length.

The brief must be sent to the Tribunal, which in turn, after consultation with the President, transmits it to the parties.37 The Rules do not contain specific guidelines on the content that an amicus curiae should have. In a 2006 decision the Court admitted them, “since they contain information which is useful and relevant to the instant case.”38 However this dictum that could be interpreted as setting a standard for the content of amici has been surpassed by the very general wording of the Rules of 2009, which says that “[t]he Presidency may, in consultation with the Permanent Commission, reject any communication that he or she considers pat-ently inadmissible”.39 This rule envisages a high threshold for refusals of amicus briefs (“patently inadmissible”), on which the President does not decide alone.40

Unlike at the ECtHR, here the beginning of the term to submit a brief is very clear and publicly ascertainable: it “may be submitted at any time during conten-tious proceedings for up to 15 days following the public hearing”, while if the Court does not hold a public hearing, they “must be submitted within 15 days fol-lowing the Order setting deadlines for the submission of final arguments”.41

2.1.3. Some Observations

Notwithstanding the fact that there is constant participation of amici curiae in the ECtHR, there are some lingering shadows in the procedure that should be dispersed. First, the term a quo for the application process in cases referred to the Grand Chamber “shall run from the notification to the parties of the decision of the Chamber […] to relinquish jurisdiction in favour of the Grand Chamber or of the

September 2012, Series C, No. 248; See also In Vitro Fertilization case, cit. supra note 31, para. 13

34 Art. 44(1).35 Art. 44(2).36 Art. 44(1).37 Art. 44(3).38 Almonacid-Arellano et Al v. Chile, Decision on Preliminary Objections, Merits, Reparations

and Costs of 26 September 2006, Series C, No. 154, para. 80. pasquaLuCCi, The Practice and Procedure of the Inter-American Court of Human Rights, 3nd ed., Cambridge, 2013, p. 159.

39 Art. 28(4). On the applicability of these provision to amicus briefs see Art. 44(1). The Rules of 2000, were different on this point. At Art. 27(3) they said: “The President may, in con-sultation with the Permanent Commission, reject any communication from the parties that he considers patently inadmissible”, emphasis added.

40 The Permanent Commission is composed by President, Vice-President and a third Judge nominated by the President.

41 Art. 44(3).


decision of the panel of the Grand Chamber […] to accept a request […] for refer-ral […]”. Although decisions on the relinquishment of jurisdiction or the referral of a case to the Grand Chamber are posted on the Court’s website, the term for submission begins with an act – the notification to the parties – that is not public, but involves intercourse only between the Court and the parties (and may be posted later). The date of the relinquishment/referral may coincide with the day of the notification, but this is not necessary. Thus it is not clear to any interested person when the twelve-week term starts. The choice of a clear and public start date for the submission term would be preferable.

Second, Article 36(2) and Rule 44(3) give the management of the whole pro-cedure for the participation of private entities to the President, without reserving a role to the parties or to the Chamber, but this power is not subject to any rule of transparency: there is no duty to publish the identities of those who requested par-ticipation nor to publish the names of the briefs accepted or refused. In the signifi-cant managerial power given to the President of the Chamber alone, the procedure envisaged in Article 36(2), even if it is under the heading “Third party intervention”, more closely resembles the discretionary handling of evidence: the President is at the center of the procedure, free from any involvement by the parties. In a positive sense (contrast this, for example, with the WTO in section 2.2) this independence gives the President the opportunity to admit controversial briefs or briefs interven-ing in high-stakes disputes. In addition, the parties are prevented from interfering with the relationship between the participant and the Court. They do not have the right to oppose admission, but can only make their observations once the Court has communicated the briefs to them. The downside, and probably it is more than just a downside, is that the President has no duty to publically report who submitted an amicus, or the reasons why a given submission was accepted or dropped. The lack of a duty to disclose all the applicants and to justify the decision is untenable given the importance that third participants can play in deciding a case in Strasbourg.

The Rules of the ECtHR apparently do not provide any further clarification of important procedural issues surrounding the use of amici curiae, particularly, the use of a non-public act to start the clock ticking on the allotted time to request leave of the President of the Grand Chamber for cases referred to it, and the lack of a duty to report in public all the petitions to participate as amici and the reasons behind their acceptance or refusal. The introduction of different rules on these questions could be helpful in resolving the issues they entail.

Compared to the ECtHR procedure, the procedure of the IACtHR is more fo-cused on the role of amici helping the curia, than on the role of amici as third participants. In the European Court the amici are short briefs sent to the Court at the beginning of a proceeding, so that the parties have the chance to take a posi-tion regarding them; in the IACtHR, on the contrary, even if the Rules are clear in stating that the briefs “shall be immediately transmitted to the parties, for their information” (Article 44(3)), the amici, without any preliminary request, have time to submit a brief up to 15 days following the order setting the deadline for the final

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arguments. Because of this allowance, the amici can reflect knowledge of the par-ties’ arguments, and avoid repetition, to make precise further points and emphasize mistakes. At the same time, there is little time and possibility for the parties to consider and address the points that the amicus briefs raise.

The procedure of the IACtHR is much clearer than the European one: the pub-licity of the rules and of the term for the time limit makes them more accessible and transparent. Here the President of the Court cannot reject an amicus alone, but rather must act together with a panel: the Permanent Commission, and the Rules of the Court set a clear guideline with a high threshold for refusing an amicus.42

Similar to the European Court, the IACtHR has the weak point of not having any duty to publish the identities of the applicants, and of those who were refused. Lastly, the absence of a limit on the length and number of amicus briefs creates a risk that amici might be time consuming for the Court, which could become more involved with the arguments of private entities than with the positions of the State(s). This can be seen both in contentious cases, with briefs longer than 70 pages,43 and under the advisory jurisdiction. For example, the advisory opinion on Article 55 of the American Convention on Human Rights44 treats the arguments of the institutional subjects (requesting State, Member States – those that actu-ally have the power to comply with the duties enshrined in the Convention – and Inter-American Commission on Human Rights) for 11 pages, and the arguments of persons and NGOs for 30 pages.45

2.2. The Dispute Settlement Body of the World Trade Organization

The Dispute Settlement Understanding (DSU) of the WTO does not have any rule expressly dedicated to amici curiae.46 Given the absence of clear rules, it is

42 Art. 28(4).43 See for example the 42 pages amicus brief submitted by the Human Right Foundation in

the Case of López Mendoza v. Venezuela (Merits, Reparations, and Costs), 1 September 2011, Series C, No. 233 (available at: <http://thehrf.org/documents/Amicus_CuriaeLL_English.pdf>) or the 80 pages presented by the National Congress of American Indians in the case of the Mayagna (Sumo) Community, cit. supra note 30.

44 Article 55 of the American Convention on Human Rights, Advisory Opinion of 29 September 2009, Series A, No. 20.

45 The whole list of interveners is reported ibid., para. 7.46 Legal literature on amici curiae at the WTO is extensive. See, inter multa alia, mavroidis,

“Amicus Curiae Briefs Before The WTO: Much Ado About Nothing”, Jean Monnet Working Paper 2/01, 2001; howse, “Membership and Its Privileges: The WTO, Civil Society, and the Amicus Brief Controversy”, European Law Journal, 2003, p. 496 ff.; roBBins, “False Friends: Amicus Curiae and Procedural Discretion in WTO Appeals under the Hot-Rolled Lead/Asbestos Doctrine”, Harvard ILJ, 2003, p. 317 ff.; keLLer, “The Future of Amicus Participation at the WTO: Implications of the Sardines Decision and Suggestions for Further Developments”, International Journal of Legal Information, 2005, p. 449 ff.; Lim, “The Amicus Brief Issue at


necessary to look into the decisions to find out how amici curiae have been man-aged. Several panels and the Appellate Body (AB) have accepted them on the basis of different rules. The panels referred first to Article 13 of the DSU (power to seek information), but also to Article 12 (power to tailor the procedure on the specificity of a dispute).47 The AB justified its acceptance under Article 17 and Article 16(1) of the Working Procedures for Appellate Review that give the AB power to modify their procedure as required by the exigencies of an ordered dispute.48

The rules of procedure for the proceedings of the panel and the AB are differ-ent. However, in dealing with them, panel reports often quote AB decisions. For this reason the decisions of panels and the AB will be considered together, and only when a difference emerges will there be a separate comment on the two jurisdic-tions.

By 1 March 2013, 456 disputes had been brought to the Dispute Settlement Body of the WTO.49 176 Disputes are still in the preliminary phases,50 while 155 panel reports and 91 AB reports have been issued.51 Since the first panel report ex-plicitly52 admitting amici curiae in US – Shrimp in 1998,53 other 136 panel reports were issued, and in 16 cases the question of amici curiae was openly discussed. The AB also considered amici for the first time in the AB report on the US – Shrimp dispute, but only insofar as they were attached to a party.54 It was not until after the discussion of the Asbestos dispute before the AB in 2000 that this organ explicitly established its power to receive amicus briefs, even if not attached to the parties’ pleadings.55 Since the AB report on the Asbestos dispute, 57 AB reports have been

the WTO”, Chinese Journal of International Law, 2005, p. 85 ff.; stern, “The Emergence of Non-State Actors in International Commercial Disputes through WTO Appellate Body Case-Law”, in saCerdoti, yanoviCh and Bohanes (eds.), The WTO at Ten, Cambridge, 2006, p. 372 ff.; ortino, “The Impact of Amicus Curiae Briefs in the Settlement of Trade and Investment Disputes”, in meessen (ed.), Economic Law as an Economic Good, Munich, 2009, p. 301 ff.; aLa’i, cit. supra note 6; and CawLey, cit. supra note 6.

47 On the dialectic between these two articles and their role in admitting amicus curiae see guohua, merCurio and yonjie, WTO Dispute Settlement Understanding. A Detailed Interpretation, The Hague, 2005, p. 173 ff.

48 Cf. EC – Asbestos, Document inviting briefs, DS 135/9.49 See at: <http://www.wto.org/english/tratop_e/dispu_e/dispu_current_status_e.htm>.50 Disputes at the consultation stage, with a panel established, or composed.51 Article 21(5) reports on compliance are not included in these numbers. All the reports can

be found at: <http://www.wto.org/english/tratop_e/dispu_e/find_dispu_documents_e.htm>.52 According to legal literature, the admissibility of amici briefs was discussed in 1996 in

US – Gasoline dispute, when certain NGOs sought to bring an amicus that was dismissed, see supra note 6.

53 Cit. infra note 56, section III.B. See howse, cit. supra note 46, pp. 497-499.54 Cit. infra note 56, paras. 79-81.55 Although of the 17 requests of amicus filed at the Asbestos appellate proceedings, none

was admitted. See the harsh critics by howse, cit. supra note 46, pp. 504-505.

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issued, and in 13 cases (Asbestos included) the question of amici curiae was openly discussed.56

There are no restrictions on which entities may submit a brief. The vast majority of the cases involve submissions either from environmental or human rights NGOs (in about seven proceedings),57 or from producer associations (in about ten proceedings).58 There are also cases in which briefs were filed by medical associations,59 university

56 US – Shrimp, WT/DS58/R, Panel Report of 15 May 1998, and WT/DS58/AB/R, AB Report of 12 October 1998; US – Lead and Bismuth II, WT/DS138/R, Panel Report of 23 December 1999, and WT/DS138/AB/R, AB Report of 10 May 2000; EC – Bed Linen, WT/DS141/R, Panel Report of 30 October 2000; EC – Asbestos, WT/DS135/R, Panel Report of 18 September 2000, and WT/DS135/AB/R, AB Report of 12 March 2001 (although the discussion on the admissibility of amici brief is not reported in the final report); Thailand – H-Beams, WT/DS122/AB/R, AB Report of 12 March 2001; EC – Sardines, WT/DS231/AB/R, AB Report of 26 September 2002; US – Softwood Lumber III, WT/DS236/R, Panel Report of 27 September 2002; US – Countervailing Measures on Certain EC Products, WT/DS212/AB/R, AB Report of 9 December 2002; US – Softwood Lumber IV, WT/DS257/R, Panel Report of 29 August 2003, and WT/DS257/AB/R, AB Report of 19 January 2004; US – Steel Safeguards, WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, AB Report of 10 November 2003; US – Softwood Lumber VI, WT/DS277/R, Panel Report of 22 March 2004; EC – Export Subsidies on Sugar, WT/DS265/R, WT/DS266/R, WT/DS283/R, Panel Report of 15 October 2004 and WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, AB Report of 28 April 2005; EC – Biotech, WT/DS291/R, Panel Report of 29 September 2006; EC – Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, AB Reports of 12 September 2005; US – Zeroing (EC), WT/DS294/R, Panel Report of 31 October 2005; Mexico – Taxes on Soft Drinks, WT/DS308/AB/R, AB Report of 6 March 2006; Brazil – Retreaded Tyres, WT/DS332/R, Panel Report of 12 June 2007, and WT/DS332/AB/R, AB Report of 3 December 2007; China – Auto Parts, WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R, AB Report of 15 December 2008; Australia – Apples, WT/DS367/R, Panel Report of 9 August 2010; Thailand – Cigarettes (Philippines), WT/DS371/R, Panel Report of 15 November 2010; US – Anti-Dumping and Countervailing Duties (China), WT/DS379/AB/R, AB Report of 11 March 2011; US – Tuna II (Mexico), WT/DS381/R, Panel Report of 15 September 2011; US – COOL, WT/DS384/R, WT/DS386/R, Panel Report of 18 November 2011; US – Clove Cigarettes, WT/DS406/R, Panel Report of 2 September 2011, and WT/DS406/AB/R, AB Report of 4 April 2012; Canada – Renewable Energy, WT/DS412/R, WT/DS426/R, Panel reports of 19 December 2012.

57 US – Shrimp, Panel Report, Annex I, ibid.; US – Softwood Lumber IV, AB Report, para. 9, ibid.; US – Softwood Lumber VI, Panel Report, note 75, ibid.; EC –Biotech, Panel Report, paras. 7.10-7.11, ibid.; Brazil – Retreaded Tyres, AB Report, note 32, ibid.; US – Clove Cigarettes, Panel Report, para. 10, ibid.; Canada – Renewable Energy, Panel Report, para. 1.12, ibid.

58 US – Lead and Bismuth II, Panel Report, para. 6.3, cit. supra note 56; EC – Bed Linen, Panel Report, note 10, cit. supra note 56; Thailand – H-Beams, AB Report, para. 62, cit. supra note 56; US – Countervailing Measures on Certain EC Products, AB Report, para. 9 and note 17, cit. supra note 56; EC – Export Subsidies on Sugar, Panel Report, para. 2.20, cit. supra note 56; EC – Export Subsidies on Sugar, AB Report, para. 9, cit. supra note 56; EC – Chicken Cuts, AB Report, para. 12, cit. supra note 56; US – Zeroing (EC), Panel Report, para. 1.7, cit. supra note 56; Mexico – Taxes on Soft Drinks, AB Report, para. 8, cit. supra note 56; Canada – Renewable Energy, Panel Report, para. 1.12, cit. supra note 56.

59 US – Clove Cigarettes, Panel Report, para. 10, cit. supra note 56.


professors,60 by a single individual,61 and by a WTO Member (Morocco, in the pro-ceedings before the Appellate Body in EC – Sardines dispute).62 This last choice was contested by Brazil, which argued that Morocco should not have been permit-ted to intervene in a way that even members with an enhanced status at the dispute expressly recognised by the DSU (like Colombia, which participated in the case as an observer) cannot do. The AB dismissed this argument: “As we have already de-termined that we have the authority to receive an amicus curiae brief from a private individual or an organization, a fortiori we are entitled to accept such a brief from a WTO Member, provided there is no prohibition on doing so in the DSU. We find no such prohibition”.63

The most common way to submit a brief is to send it directly and simultane-ously to the parties and the panelists or the AB, avoiding a preliminary request. Looking at the practice, two different time limits for their submission emerge: some panels gave a strict time limit, saying that a brief must be submitted before the first substantive meeting of the Panel;64 the majority of the reports specified that the par-ties must have at least one meeting in order to make their comments on the briefs (so those sent after the first meeting, but before the last one are acceptable).65

Apart from the very first cases,66 almost all the reports assert that the panel and the AB have discretion in accepting amicus briefs.67 A panel in a recent report clearly declared its autonomy in deciding the admissibility of amici: “The Panel […] has the authority to consider the information contained in the submission […] and has done so to the extent that it deemed it relevant to the examination of the claim before it”.68 However, in practice, the parties too play a decisive role in the admission of a brief. In early disputes, amicus briefs were considered only when the parties incorporated them into their files.69 Then, more recently, both panel and AB reports decided to

60 Ibid. and EC – Biotech, Panel Report, cit. supra note 56, para. 7.10.61 EC – Sardines, AB Report, cit. supra note 56: “We find that we have the authority to ac-

cept the brief filed by a private individual, and to consider it. We also find that the brief submitted by a private individual does not assist us in this appeal” (para. 160).

62 Ibid., para. 163.63 Ibid., para. 164. Cf. the brief filed by Morocco, ibid., paras. 163-165.64 US – Softwood Lumber III, Panel Report, cit. supra note 56, para. 7.2. See also implicitly

US – Softwood Lumber VI, cit. supra note 56, note 75.65 US – Lead and Bismuth II, Panel Report, cit. supra note 47, para. 6.3; EC – Export

Subsidies on Sugar, Panel Report, cit. supra note 56, para. 7.81.66 See, e.g., US – Lead and Bismuth II, AB Report, cit. supra note 56.67 This has been stressed in all cases. See, inter alia, US – Lead and Bismuth II, AB Report,

cit. supra note 56, paras. 36-42.68 US – Tuna II (Mexico), cit. supra note 56, para. 7.9. In US – Clove Cigarettes, AB Report,

cit. supra note 56, para. 10, the AB circulated among the participants and third participants the briefs but did not find necessary to rely on them in rendering its decision.

69 US – Shrimp, Panel and AB Reports, cit. supra note 56; EC – Asbestos, Panel Report, para. 8.12 (that follows what stated by the AB in the US – Shrimp report), cit. supra note 56; Brazil – Retreaded Tyres, Panel Report, para. 1.8, cit. supra note 56.

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consider them only when the parties agreed or did not contest their admission,70 while other reports said that they would be taken into account only insomuch as the parties touched upon them. Recently, in Canada — Renewable Energy, “the Panel informed the parties that it would take the briefs into account only to the extent the parties decided to incorporate them into their own submissions”.71

Also in the US – Tuna II (Mexico) report, notwithstanding the autonomy as-serted by the panel, the opinion of at least one of the parties was heavily considered. The panel, in its findings, relied extensively on information contained in the briefs, which was recalled by the USA to support its position72 (giving to the information contained in the briefs a decisive weight on certain matters).73 An approach too de-pendent on parties risks rendering the submission of briefs very rare, because so far only the USA and then, in part, the European Union have welcomed the possibility to submit amicus briefs at the WTO. Many other States have clearly opposed this possibility.74

The opposition to amicus curiae has been exacerbated by three cases in which the content of either an amicus curiae, or the website of an NGO that submitted one, revealed that the author of the brief had access to documents and information covered by confidentiality. In EC – Biotech the objection was raised that the amici had disclosed “on their own websites, interim findings and conclusions of the Panel which were clearly designated as confidential”.75 Again, in Thailand – H-Beams, Thailand observed that the file of the amicus contained confidential information and that the same law firm cooperated both with a party and with the amicus.76 Finally, in EC – Export Subsidies on Sugar, Brazil contested the use of confidential

70 In US – Countervailing Measures on Certain EC Products, AB Report, to the opposition of the European Community corresponded the fact the AB did not consider the amicus submis-sion (para. 76, cit. supra note 56); in Mexico – Taxes on Soft Drinks, AB Report, to the opposition of the USA the AB did not consider the amicus (cf. note 8 and para. 8, cit. supra note 56); China – Auto Parts, AB Report, para. 11, cit. supra note 56; EC – Export Subsidies on Sugar, Panel Report, para. 2.20, and 7.77, cit. supra note 56; US – Shrimps Turtles, AB Report, para. 107, cit. supra note 56; US – Anti-Dumping and Countervailing Duties (China), AB Report, para. 18, cit. supra note 56.

71 Canada – Renewable Energy, Panel Report, para. 1.13, cit. supra note 56. See previously EC – Bed Linen, Panel Report, note 10, cit. supra note 56; US – Zeroing (EC), Panel Report, para. 1.7, cit. supra note 56; US – Softwood Lumber IV, WT/DS257/AB/R, 19 January 2004, para. 9, cit. supra note 56; US – Softwood Lumber VI, Panel Report, note 75, cit. supra note 56; US – COOL, Panel Report, para. 2.10, cit. supra note 56.

72 Ibid., paras. 7.182, 7.288, and 7.363.73 Ibid., paras. 7.288 and 7.363.74 In this vein, see the observations in US – Final Softwood Lumber IV, Panel Report, para.

5.55, cit. supra note 56; Thailand – H-Beams, AB Report, para. 63, cit. supra note 56; US – Softwood Lumber IV, AB Report, para. 42, cit. supra note 56; US – Softwood Lumber VI, Panel Report, note 75, cit. supra note 56.

75 EC –Biotech, Panel Report, cit. supra note 56, para. 6.196.76 Thailand – H-Beams, AB Report, paras. 62-78, cit. supra note 56.


information by a German association of producers.77 So far, apart from the US – Tuna II (Mexico) report, the most extensive reasoning in recent reports on amici curiae has been dedicated to breaches of confidentiality.78

As for the content of the brief, in the proceedings before a panel a brief may contain both facts and points of law, while certain reports of the AB have specified that, given the fact that Article 17(6) of the DSU limits an appeal to issues of law and legal interpretations developed by the panel, on appeal the briefs may only concern legal matters. As observed by the AB in EC – Sardines: “[…] Article 17.6 of the DSU limits an appeal to issues of law and legal interpretations developed by the panel, the factual information provided in Morocco’s amicus curiae brief is not pertinent in this appeal”.79 In practice, this has a practical impact on the length of briefs, given that the description of certain facts may need several pages more than legal interpretation. One report of the AB also specified that in the appeal the briefs should deal only with new questions not yet provided by the parties.80

The lack of a procedure naturally renders analysis more difficult in comparison with other jurisdictions and leaves several murky issues unresolved. For example, there is no duty to publish the identities of those who submitted a brief. Therefore, it is not clear when the participation of amici was refused: it is possible that re-quests have been made in all the cases, but there is no way to know this. Also the terms and time limits for submission are not clear: some panels have said that a brief must be submitted before the first substantive meeting of the Panel, and oth-ers that the parties must have at least one meeting prior to submission. In any case, while it is clear and public when a panel is constituted, this cannot be said for the hearings, so those interested will not be aware of how much time they have to pre-pare and submit their brief. Given this, it may not be so surprising that in certain cases there have been issues of confidentiality. Given the uncertain procedures and the uncertain allowable timeframe of submissions, an entity with actual ties to a party, rather than someone with a general interest in something affected generally by the dispute, is more likely to have the real possibility to participate as an amicus. The practice concerning the role of the parties in the admission of a brief is likewise uncertain. Nearly all cases have stressed that the briefs must be circulated to the parties. And while many reports assert the autonomous discretion of the panels and

77 EC – Export Subsidies on Sugar, Panel Report, paras. 2.21-2.28, and 7.86-7.99, cit. supra note 56.

78 While in other cases in which they were accepted the panel and the AB rapidly dismissed the briefs, finding them not useful to the case, EC – Chicken Cuts, AB Report, para. 12; Mexico – Taxes on Soft Drinks, AB Report, para. 8; EC –Biotech, Panel Report, para. 7.11 (US said that amici curiae were irrelevant); EC – Sardines, AB Report, para. 315.b: “the amicus curiae briefs submitted in this appeal are admissible but their contents do not assist us in deciding this appeal”; EC – Export Subsidies on Sugar, AB Report, para. 9; Brazil – Retreaded Tyres, AB Report, para. 7 (cit. supra note 56).

79 EC – Sardines, Panel Report, para. 169, cit. supra note 56.80 US – Softwood Lumber IV, AB Report, para. 9, cit. supra note 56.

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AB to accept them, it seems essential to their consideration that the parties rely on them.

In short, notwithstanding that the practice of accepting amicus briefs at the WTO is 15 years old, no rules have been so far introduced, and the practice is often incoherent, with some marked points of discord. The problem of confidentiality, however, comes precisely from the lack of a clear procedure, which incentivizes and rewards contacts with the parties, and not from the nature of amici in and of itself. The resistance of many States to amici participation,81 however, makes it unlikely that this will be resolved in the short-term.

2.3. International Investment Arbitrations

As at the WTO, amici curiae were introduced in international investment arbi-trations between private entities and States through the adjustment of the procedure by the arbitrators during the proceedings. It happened first in the Iran-USA Claims Tribunal,82 and then before Chapter 11 NAFTA arbitral tribunals in two cases,83 and then before ICSID tribunals in 2005 and 2006.84 These submissions were allowed through the interpretation of the UNCITRAL and ICSID dispositions that attribute to the arbitrators the possibility to adjust the procedures when necessary.85 Unlike

81 On the opposition of developing countries to amicus curiae see syam, “Civil Society Groups and Administrative Law: Amicus Curiae in WTO”, Institute for International Law and Justice, Global Administrative Law: South Asian Dialogue Series, 2007; and hurreLL, On Global Order, New York, 2007, pp. 112-114.

82 See supra note 5.83 Methanex Co. v. USA, Decision of the Tribunal on Petitions from Third Persons to

Intervene as “Amici Curiae” of 15 January 2001; and United Parcel Service of America INC v. Canada, Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae of 17 October 2001. For comments, see ortino, cit. supra note 46, p. 301 ff. The experience of the Iran-USA Claims Tribunal to allow amici curiae participation under Art. 15 of UNCITRAL Arbitration Rules (commented supra note 5) was evoked as precedent in the Methanex case. Cf. de BraBandere, “Non-State Actors in International Dispute Settlement: Pragmatism in International Law”, in d’aspremont (ed.), Participants in the International Legal System, New York, 2011, p. 352.

84 Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal. S.A. v. Argentina, ICSID Case No. ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae of 19 May 2005; and Suez, Sociedad General de Aguas de Barcelona S.A. and Interagua Servicios Integrales de Agua S.A. v. Argentine, ICSID Case No. ARB/03/17, Order in Response to a Petition for Participation as Amicus Curiae of 17 March 2006. In Aguas del Tunari S.A. v. Bolivia, ICSID Case No. ARB/02/3, Decision on the Respondent’s Objection to Jurisdiction of 21 October 2005, para. 17, the request was rejected.

85 On this topic the legal literature is extensive: ishikawa, “Third Party Participation in Investment Treaty Arbitration”, ICLQ, 2010, p. 373 ff.; knahr, “Transparency, Third Party Participation and Access to Documents in International Investment Arbitration”, Arbitration International, 2007, p. 327 ff.; misteLis, “Confidentiality and Third Party Participation in


the WTO, the States then officially endorsed amici participation, issuing a specific statement of the Member States in the case of NAFTA in 200386 and amending the ICSID Arbitration Rules in 2006.87

After this, other bilateral investment treaties (BITs) and free trade agreements recognized the possibility of submitting amici curiae, like the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA).88 Therefore, the possibility to submit an amicus brief is now enshrined at two levels: in the proce-dural rules that regulate arbitrations and in the investment treaty. The UNCITRAL Arbitration Rules, as amended in 2010, do not envisage this possibility, because they are still conceived as a regulation primarily for private commercial arbitra-tion. A working group is, however, discussing the introduction of special rules on transparency for arbitrations involving States.89

2.3.1. The NAFTA and the FTC Statement

NAFTA provides at Article 1128 the possibility for Member States that are not party to a dispute to “make submissions to a Tribunal on a question of interpreta-tion of [the] Agreement”. No other article allows or prohibits the possibility for private parties to submit a brief, and that is why, in the Methanex and UPS cases, the Tribunals could interpret the arbitration rules to accept private amici.

Investment Arbitration”, Arbitration International, 2005, p. 205 ff.; savarese, “Amicus Curiae Participation in Investor-State Arbitral Proceedings”, IYIL, 2007, p. 379 ff.; tienhaara, “Third Party Participation in Investment-Environment Disputes: Recent Developments”, RECIEL, 2007, p. 230 ff.; yannaCa-smaLL, “Transparency and Third Party Participation in Investor-State Dispute Settlement Procedures”, in OECD (ed.), International Investment Law: A Changing Landscape, Paris, 2005, pp. 17-24; zoeLLner, “Third-Party Participation (NGOs and Private Persons) and Transparency in ICSID Proceedings”, in hofmann and tams (eds.), The International Convention for the Settlement of Investment Disputes (ICSID) – Taking Stock After 40 Years, Baden-Baden, 2007, pp. 179-208; franCioni, cit. supra note 11, p. 738 ff.; Choudhury, cit. supra note 14, pp. 814-818; Levine, “Amici Curiae in International Investment Arbitration: The Implications of an Increase in Third-Party Participation”, Berkeley Journal of International Law, 2011, p. 200 ff.

86 Free Trade Commission Statement on Non-Disputing Party Participation of 7 October 2003, available at: <http://www.international.gc.ca/trade-agreements-accords-commerciaux/as-sets/pdfs/Nondisputing-en.pdf>; see the comments in kinnear et al., Investment Disputes under NAFTA, An Annotated Guide to Chapter 11, Alphen aan den Rijn, 2006.

87 antonietti, “The 2006 Amendments to the ICSID Rules and Regulations and the Additional Facility Rules”, ICSID Review – Foreign Investment Law Journal, 2006, p. 427 ff.; parra, “The Development of the Regulations and Rules of the International Centre for Settlement of Investment Disputes”, International Lawyer, 2007, p. 47 ff.

88 CAFTA, Arts 10.20.2 and 3. See also Art. 15.19.3 of the Free Trade Agreement between the USA and Singapore of May 2003, and Art. 28.3 of the Bilateral Investment Treaty between Rwanda and USA of 19 February 2008.

89 See infra section 2.3.4 for details.

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With the Statement of 2003 (FTC Statement), the Free Trade Commission composed by the three NAFTA Member States extended the possibility to submit a written brief to any interested party, with the recommendation to follow the pro-cedure described in the FTC Statement in the “interests of fairness and the orderly conduct of arbitrations”.90 This statement is not a formal amendment of NAFTA and gives recommendations for the amicus procedure. However, the non-disputing interveners and the arbitral tribunals are very scrupulous in observing what is pre-scribed by the FTC Statement,91 integrating it also with references to the ICSID Arbitration Rules.92

The conditions are well detailed. The FTC Statement sets a two-phase pro-cedure, first the request for permission to submit a brief, and then the possible submission of the brief (depending on the response of the tribunal). Only persons that have a significant presence in the territory of a Party can apply (para. B.1). The application for leave to file a brief must be written, no longer than 5 typed pages, and include a description of the applicant.93 It must contain the nature of the interest that the applicant has in the arbitration and the specific issues of fact or law it wants to address, and explain why the Tribunal should accept the submission (para. B.2). If permission to submit the brief is granted, the submission shall be no longer than 20 typed pages, including any appendices, set out a precise statement supporting the applicant position on the issues, and only address matters within the scope of the dispute (para. B.3). The FTC Statement also lists certain criteria to guide the arbitral tribunal in the decision to accept the brief: whether it brings “a perspective, particular knowledge or insight that is different from that of the disputing parties”; whether it “address[es] matters within the scope of the dispute”; whether “the non-disputing party has a significant interest in the arbitration”; whether “there is a public interest in the subject-matter of the arbitration”; and whether the submission avoids disrupting the proceedings or unduly burdens or unfairly prejudices any dis-puting party (paras B.6 and B.7). The arbitral tribunal then decides on the request and sets the time-limits for the parties and for the non-disputing Member States to present their observations.

After the awards held before the FTC Statement (Methanex and UPS), amici curiae were presented in five more cases decided after its introduction: Glamis

90 See supra note 86.91 See e.g. the proceedings and the analysis in Glamis Gold Ltd. v. USA, Award of 8 June

2009, para. 286.92 In Apotex Inc. v. USA (NAFTA-UNCITRAL) the Tribunal also used decisions of ICSID

arbitrations and referred to ICSID Arbitration Rules of 2006 because “these criteria are substan-tially similar” (Procedural Order No.2 on the participation of a non-disputing party of 11 October 2011, para. 19).

93 It must include its general objectives, the nature of its activities and any parent organiza-tion; must disclose whether or not the applicant has any affiliation, direct or indirect, with any disputing party; must identify any government, person or organization that has provided any financial or other assistance in preparing the submission.


v. USA, Grand River v. USA, Merrill & Ring v. Canada, Apotex Inc. v. USA, and Apotex Holding v. USA.94 In all these cases the tribunals followed the conditions set in the FTC Statement.

Even if it is not so prescribed, the tribunals in Apotex Inc. v. USA and Apotex Holding v. USA gave notice of the possibility to submit an amicus brief through the Internet. In Apotex Holding v. USA, however, the Tribunal issued the invitation to participate on 31 January 2013, giving a very short deadline for the submissions, 8 February, making it very difficult to organize a request.95

The entities that requested participation are human rights and environmental NGOs, associations of producers, associations and representatives of indigenous peoples, unions, and a consulting firm. In Glamis v. USA, a complicated case in-volving a mining site (touching on the rights of the owner, the rights of Native Americans, a natural park, and environmental laws)96 several briefs were presented by different groups: the National Mining Association, the Quechan Indian Nation, the Sierra Club and Earthworks, and Friends of the Earth. In the Merrill & Ring v. Canada case97 the Communications, Energy and Paperworkers Union of Canada, the United Steelworkers and the British Columbia Federation of Labour, presented a joint brief. In Grand River v. USA, a case involving a producer of tobacco and American legislation on Native rights, the Tribunal in 2009 received a letter from the National Chief of the Assembly of First Nations.98 In Apotex Inc. v. USA, the Tribunal received a request to participate from Business Neatness Magnanimity, a “management consulting firm” dedicated to sustainable finance.99

All the tribunals have been very attentive to the pertinence of the non-disputing party intervention, both in terms of the areas of interest and expertise of the amici, and the relevance of the briefs to the scope of the dispute. In Glamis v.USA, the Tribunal clearly stated that, “[g]iven the Tribunal’s holdings […], the Tribunal does not reach the particular issues addressed by [the amici] submissions”.100 In Apotex Inc. v. USA the Tribunal rejected BNM’s request to participate because its area of expertise did not touch on any of the topics of the dispute, and therefore it was not

94 Glamis case, cit. supra note 91; Merrill & Ring Forestry L. P. v. Canada, Award of 31 March 2010; Grand River Enterprises Six Nations Ltd. et Al. v. USA, Award of 12 January 2011; Apotex Inc. v. USA, Procedural Order No. 2 on the participation of a non-disputing party of 11 October 2011; Apotex Holdings Inc. and Apotex Inc. v. USA, ICSID Case No. ARB (AF)/12/1, Invitation to Amici Curiae of 31 January 2013.

95 Apotex Holding, ibid.96 More than 150 paragraphs of the final decision are dedicated to summarize the relevant

facts and national legislations over the dispute, cf. Glamis, cit. supra note 91, paras. 32-184.97 Merrill & Ring, cit. supra note 94.98 The letter endorsed the UN Declaration on the Rights of Indigenous Peoples “and the cus-

tomary international law principles it reflects” and called for indigenous rights to be “taken into account whenever a NAFTA arbitration involves First Nations investors or investments”, Grand River, cit. supra note 94, para. 50.

99 Apotex Inc., cit. supra. note 94, para. 4.100 Glamis, cit. supra note 91, para. 8.

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“able to provide any assistance to this Tribunal that might not otherwise be avail-able to it”,101 and because public interest in the subject matter of the arbitration was lacking.102

The decision on admissibility lies only with the tribunal, and the parties are merely consulted. However, in certain cases the parties have been involved to ad-just submissions that were not formally correct. In the Merrill & Ring v. Canada case, a joint brief was presented after the term, and accepted by the Tribunal after consultation with the parties.103 In Grand River v. USA, the Tribunal received a letter from the National Chief of the Assembly of First Nations after the term for submission,104 and the claimants decided to include the letter in their file, and in that context it was read and considered by the Tribunal.105

So far, the importance of the briefs to final decisions seems very low. In Glamis v. USA, the mining association supported the claimant, while the environmentalist groups and the Quechan Indian Nation supported the USA. The arbitral tribunal rejected the claims and did not challenge the legislation of California, but without commenting upon the amicus briefs. In Merrill & Ring v. Canada, the amicus brief supported the State against the claims – that were rejected by the Tribunal, but without comment on the brief.106

2.3.2. ICSID Arbitration Rules

Compared to the FTC Statement, ICSID Arbitration Rules are more generic. Rule 37, effective 10 April 2006, says:

“After consulting both parties, the Tribunal may allow a person or en-tity that is not a party to the dispute [in this Rule called the ‘non-dis-puting party’] to file a written submission with the Tribunal regarding a matter within the scope of the dispute. In determining whether to allow such a filing, the Tribunal shall consider, among other things, the extent to which: (a) the non-disputing party submission would as-sist the Tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties; (b) the non-

101 Apotex Inc., cit. supra. note 94, para. 23.102 Ibid., para. 29.103 Merrill & Ring, cit. supra note 94.104 Cf. supra note 98.105 Ibid.106 Written Submission by the United Steelworkers, Communications, Energy and

Paperworkers Union of Canada, and the British Columbia Federation of Labour of 26 September 2008.


disputing party submission would address a matter within the scope of the dispute; (c) the non-disputing party has a significant interest in the proceeding. The Tribunal shall ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party, and that both parties are given an opportunity to present their observations on the non-disputing party submission”.

The rules, which refer not to amici curiae, but to “non-disputing parties”, are not as detailed as the FTC Statement, but are similar to it, and in practice, dur-ing the proceedings further similar details are usually established by the tribunals through orders fixing the admissible length and setting time-limits for the amici and for the parties to the dispute to reply.107

As for the entities that may participate, so far NGOs, international associa-tions, and organs of international organizations (the European Commission) have all been accepted as non-disputing parties.108 Other State(s) party to the treaty never requested to participate.

107 The first case that admitted the filing of amicus briefs under the new rules is Biwater Gauff v. Tanzania, in 2007, notwithstanding the proceedings started before the amendment of the ICSID Arbitration rules (accordingly the Arbitral Tribunal should not have applied the new rules, cf. Art. 44 of the ICSID Convention). However, the arbitral tribunal considered whether the three conditions envisaged by Rule 37.2(a), (b), and (c), were fulfilled, and accepted a brief, Biwater Gauff (Tanzania) Ltd v. Tanzania, ICSID Case No. ARB/05/22, Award of 2 February 2007, para. 50. For comments see fernández masiá, “Primeras aplicaciones de las nuevas reglas de arbitraje del CIADI sobre transparencia y partecipacion de terceros en el procedimiento arbitral”, Transnational Dispute Management, 2009. The ICSID Arbitration Rules have also been applied in other cases kept confidential, Ioan Micula, Viorel Micula, S.C. European Food S.A, S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v. Romania, ICSID Case No. ARB/05/20, Decision on Jurisdiction and Admissibility of 24 September 2008. In 2011, a non-disputing party applied to file a written submission in the case Caratube International Oil Company LLP v. Republic of Kazakhstan, ICSID Case No. ARB/08/12. Electrabel v. Hungary, ICSID Case No. ARB/07/19. For a comment on these cases see knahr, “The New Rules on Participation of Non-Disputing Parties in ICSID Arbitration: Blessing or Curse?”, in Brown and miLes (eds.), Evolution in Investment Treaty Law and Arbitration, Cambridge, 2011, p. 319 ff., pp. 330-333; see also söderLund, “The Future of the Energy Charter Treaty in the Context of the Lisbon Treaty”, in Coop (ed.), Energy Dispute Resolution: Investment Protection, Transit, and the Energy Charter Treaty, Hungtinton, 2011, p. 120 ff.

108 Piero Foresti, Laura de Carli and Others v. South Africa, ICSID Case No. ARB(AF)/07/1, Award of 4 August 2010, paras. 9, 25-29. In AES v. Hungary, a corporation incorporated in the United Kingdom filed a case against Hungary, AES Summit Generation – Tisza Erömü KFT v. Hungary, ICSID Case No. ARB/07/22, Award of 23 September 2010. Since both the UK and Hungary are European Union members, the European Commission submitted an amicus brief, ibid., para. 8.2. In other cases, the Commission was invited by the arbitrators to the proceedings, see the comments of BjorgLund, “The Participation of Sub-National Government Units as Amici Curiae in International Investment Disputes”, in Brown and miLes (eds.), ibid., p. 311 ff.

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The conditions prescribed by Article 37 are usually carefully checked. In the procedural order on the admittance of amici curiae in Bernhard Von Pezold v. Zimbabwe the Tribunal stressed the importance of the interest of the non-disputing parties to the dispute (Article 37(1)(c)), and of their independence from the parties (Article 37(2)).109 In the order the Tribunal pointed out the discrepancy between the purpose of an association and the dispute at hand:

“[T]he Petitioners do not have a ‘significant interest in the proceeding’ […] [T]he ECCHR’s expertise is focused on corporate responsibili-ties for human rights abuses […] [and its] mission and experience do not, in the context of these proceedings, as presently constituted, sat-isfy the requirement of a ‘significant interest in the proceedings’”.110

Aside from the question of interest in the dispute, the Tribunal went on to assess the presence of the freely-given spirit necessary to friendship, to amicitia – that is, an independence of the amici from the parties:

“[T]he Arbitral Tribunals have reservations as to the independence and/or neutrality of the Petitioners, including the chiefs of the indig-enous communities. […] Rule 37(2) also provides that [a non-dis-puting party] submission must not unfairly prejudice either party. In this case, the Arbitral Tribunals are of the view that the circumstances surrounding these Petitioners are such that the Claimants may be unfairly prejudiced by their participation and the Application must therefore be denied”.111

In short, a non-disputing party should be a friend that is interested but inde-pendent, a friend of the court and not a friend of one of the parties. This is not to say that it should be indifferent to the dispute, or not siding with one of the possible outcomes, but that an amicus cannot be the duplicate of a party, or directly con-nected to it.

The Bernhard Von Pezold v. Zimbabwe award is also relevant as far as the con-tent of the brief is concerned. The Tribunal checked the pertinence of the brief to the dispute, as required by Rule 37(a) and (b) and refused the submission because the non-disputing parties were addressing issues not directly involved in the dispute: “neither Party has put the identity and/or treatment of indigenous peoples, or the

109 Bernhard Von Pezold and Others v. Zimbabwe (ICSID case No. ARB/10/15), and Borders Timbers Limited, Borders Timbers International (Private) Limited, and Hangani Development Co. (Private) Limited v. Zimbabwe, ICSID Case No. ARB/10/25, Procedural Order No. 2 of 26 June 2012.

110 Ibid., para. 61.111 Ibid., para. 62.


indigenous communities in particular, under international law, including interna-tional human rights law on indigenous peoples, in issue in these proceedings”.112

To avoid useless briefs and “enable NDPs [non-disputing parties] to give useful information and accompanying submissions to the Tribunal”,113 an arbitral tribunal in the case Piero Foresti, Laura de Carli and Others v. South Africa wisely decided to grant partial access to the case files, to give to the amici the possibility to comply with Rule 37 (the brief shall bring a perspective, particular knowledge or insight that is different from that of the disputing parties, and address a matter within the scope of the dispute). It then specified:

“The Tribunal had ordered the Parties to provide the NDPs with cer-tain redacted documents because it had taken the view that the NDPs must be allowed access to those papers submitted to the Tribunal by the Parties that are necessary to enable the NDPs to focus their sub-missions upon the issues arising in the case and to see what positions the Parties have taken on those issues”.114

This solution – disclosing only the relevant information to understand the cen-tral point of a dispute – is interesting because it preserves the confidentiality of the sensitive data in the case file, while at the same time providing the opportunity for interested subjects to profitably intervene.

2.3.3. ICSID Arbitration Rules and CAFTA

The ICSID Arbitration Rules have also been applied in arbitrations established under CAFTA. This treaty has very broad provisions on amici (here called amici curiae, while non-disputing Parties refers to the other Member States of the treaty), which say at Article 10.20: “2. A non-disputing Party may make oral and written submissions to the tribunal regarding the interpretation of this Agreement. 3. The tribunal shall have the authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party”. Sub-paragraph 2 gives non-disputing Member States the right to submit a brief or to make an oral statement on the interpretation of the agreement, but not on other issues (similarly to Article 1128 in NAFTA).115 Sub-paragraph 3 establishes the possibility for any person or

112 Ibid., para. 60.113 Piero Foresti, cit. supra note 108, para. 28. The parties settled the dispute, and this deci-28. The parties settled the dispute, and this deci-

sion discontinued the case, and awarded the costs.114 Ibid.115 See Railroad Development Corporation v. Guatemala, ICSID Case No ARB/07/23,

Award of 29 June 2012, in which El Salvador, Mexico, and United States filed a submission with the interpretation of the minimum standard of aliens (para. 207 ff.), and Pac Rim Cayman v. El

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entity to submit an amicus brief. The general wording of sub-para. 3, then, allows not only private entities, but also Member States, to participate as non-disputing parties, submitting a brief and making oral statements. In Commerce Group and San Sebastian Gold Mines v. Guatemala, two Member States of CAFTA, namely Costa Rica and Nicaragua, submitted amicus briefs under Article 10.20.3 (and not under 10.20.2)116 and Article 37.2 of the ICSID Arbitration Rules, and three non-disputing States were admitted to make oral statements at the hearings.117 In its decision the Tribunal discussed the two written amici, and ultimately reached con-clusions in line with them.118

Article 10.20.3 leaves the decision on whether to accept an amicus brief only to the tribunal, which may act without consulting the parties to the dispute. This is ap-parently in contradiction with the ICSID Arbitration Rules, which give the parties power to be consulted about amicus admissibility. In the CAFTA cases mentioned above, the arbitration was governed by the ICSID Arbitration Rules. The tribunals always fleshed out the procedures with further details, and the parties had the op-portunity to make comment on them. However, if the arbitration is not governed by the ICSID Arbitration Rules, but by rules that do not provide a procedure for amici (like the UNCITRAL Arbitration Rules), nothing prevents the tribunal from allowing written submissions or oral statements without consulting the parties, in a way that is similar to the ECtHR and the IACtHR. Paradoxically, in a CAFTA arbi-tration regulated by ICSID Arbitration Rules (that admit a procedure open to amici participation after having consulted the parties), the parties can exclude amici par-ticipation, but not in a CAFTA arbitration regulated by UNCITRAL Arbitration Rules (that does not say anything about amici participation). This paradox could emerge in the TCW Group, Dominican Energy Holdings v. Dominican Republic case, a CAFTA-UNCITRAL dispute. However, the Tribunal, in a procedural or-der, established a procedure for amici submission that closely resembled the FTC Statement and ICSID Arbitration Rules that, again, envisage an active role for the parties.119

Salvador, ICSID Case No. ARB/09/12, Decision on the Respondent’s Jurisdictional Objections of 1 June 2012, in which the submission was made by Costa Rica and the USA (paras. 1.31-1.32).

116 In Railroad Development Corporation v. Guatemala, ibid., El Salvador, Guatemala, and the USA submitted a brief under Art. 10.20.2, interpreting the CAFTA.

117 Commerce Group and San Sebastian Gold Mines v. El Salvador, ICSID Case No. ARB/09/17, Award of 14 March 2011. Costa Rica and Nicaragua submitted a written brief (para. 39) while Costa Rica, Dominican Republic and USA were admitted to the hearings ex Art. 32 of the ICSID Arbitration Rules (para. 47).

118 Ibid., paras. 80-82 and 140.119 TCW Group, Inc., and Dominican Energy Holdings, L.P. v. Dominican Republic,

Procedural Order No. 2 of 15 August 2008, paras. 3 and 3.6.1 ff. The dispute was then terminated by the mutual agreement of the parties (Consent Award of 16 July 2009).


CAFTA also does not specify if the amicus must be in writing or can consist of an oral statement. The parties raised these questions in the Pac Rim Cayman v. El Salvador case, a CAFTA arbitration regulated by ICSID Arbitration Rules. Here, the Tribunal requested the observations of the Parties on the admissibility of writ-ten amicus briefs and on the admissibility of amici to present oral arguments,120 and gave permission to submit only written observations on the current jurisdictional phase.121

It must be noted that an arbitral tribunal eventually adopted an interesting prac-tice to make the public effectively aware of the possibility to participate with a brief. In the Pac Rim Cayman LLC v. El Salvador case the Tribunal issued an ICSID news release with the conditions for submitting an amicus brief in order to invite broad public participation.122 The Tribunal received one brief123 which it took into consideration in several passages of its decision.124

2.3.4. The Work at the UNCITRAL on Transparency

In several earlier cases the 1976 UNCITRAL Arbitration Rules had been inter-preted as allowing amici submission, through a broad interpretation of Article 15 (“[…] the arbitral tribunal may conduct the arbitration in such manner as it consid-ers appropriate […]”).125 Then, in 2006, the UNCITRAL’s working group on arbi-tration entertained the possibility of formalizing this interpretation by adding a new provision to the Arbitration Rules.126 However, it eventually decided to consider the issue separately, as part of a new work on transparency in investment arbitration

120 Letter from El Salvador, Re: Pac Rim Cayman LLC v. Republic of EI Salvador of 18 March 2011, ICSID Case No. ARB/09/12, in which El Salvador, the respondent State, affirmed that “it would be appropriate for the Tribunal to accept and consider the proposed amicus curiae submission”. Letter from the Claimant, Re: Pac Rim Cayman LLC v. Republic of EI Salvador of 18 March 2011, ICSID Case No. ARB/09/12, in which the Claimant requested to deny the Applicants’ request to make an oral presentation, non-accept part of the brief.

121 Pac Rim Cayman LLC v. EI Salvador, ICSID Case No. ARB/09/12, Procedural Order No. 8 of 23 March 2011.

122 ICSID News Release Re Amicus Curiae, Procedural Order Regarding Amici Curiae of 2 February 2011, reproduced in Pac Rim Cayman LLC v. El Salvador, Decision on the Respondent’s Jurisdictional Objections of 1 June 2012, para. 1.35.

123 Ibid., para. 1.33 ff.124 Ibid., paras. 1.38, 2.36-2.40, 2.43, 4.58, 4.85.125 Apart from the cases commented in section 2.3.1, this interpretation has been proposed in

the arbitration Chevron Corporation and Texaco Petroleum Company v. Ecuador (PCA Case N. 2009-23, Award of 31 August 2011). On 26 April 2011, “[a]fter considering the Petition submit-ted and the comments of the Parties, the Tribunal has decided not to permit the participation of the Petitioners as amici curiae at this stage of the arbitration”.

126 Settlement of commercial disputes: Revision of the UNCITRAL Arbitration Rules, 20 July 2006, UNCITRAL, Working Group II (Arbitration), 45th session, Doc. A/CN.9/WG.II/WP.143, para. 71.

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between private entities and States,127 and the new Arbitration Rules were approved in 2010 without provisions on amicus participation.

The debate on transparency is still on-going,128 and it affects many issues beside the participation of amici curiae, like the publication of awards and access to the documents and hearings. Nevertheless, a key part of the work has been dedicated to amici curiae. Amicus curiae participation was not initially intended for inclusion in the discussion,129 but the question was immediately raised during the session, using the expression amicus curiae,130 and then officially included as one of the issues for consideration. The issue was labelled “Submissions by third parties (amicus curiae) in arbitral proceedings”, and was treated separately from another one dedi-cated to the possibility to intervene by non-disputing State(s) that are parties to the investment treaty, but not to the arbitration.131

In 2011 the Working Group highlighted two possible approaches to a draft on amici curiae participation, one more concise, and one more thorough, resem-bling the FTC Statement, and with the purpose of being more suitable for States not familiar with amicus curiae.132 Accordingly, the draft articles presented in July 2011 included two options under Article 5, one very brief, and the other involving several paragraphs,133 which “corresponds to a suggestion that guidance should be

127 Settlement of commercial disputes: Preparation of rules of uniform law on transpar-ency in treaty-based investor-State dispute settlement, 5 August 2010, UNCITRAL, Working Group II (Arbitration and Conciliation), 53rd session, Doc. A/CN.9/WG.II/WP.160. The friction between the confidentiality of arbitrations and the need for transparency in procedures involv-ing public entities like States was already stressed in other reports, cf. Report of the Working Group on Arbitration and Conciliation on the Work of Its Forty-Fifth Session (UNCITRAL, Vienna, 11-15 September 2006), Doc. a/Cn.9/614, para. 83; Report of the Working Group on Arbitration and Conciliation on the Work of Its Forty-Eighth Session (New York, 4-8 February 2008), UNCITRAL, Doc. a/Cn.9/646, para. 69.

128 Settlement of commercial disputes: Preparation of a legal standard on transparency in treaty-based investor-State arbitration, 30 November 2012, UNCITRAL, Working Group II (Arbitration and Conciliation), 58th session, Doc. A/CN.9/WG.II/WP.176.

129 Settlement of commercial disputes: Preparation of rules of uniform law on transparency in treaty-based investor-State dispute settlement, 5 August 2010, UNCITRAL, Working Group II (Arbitration and Conciliation), 53rd session, Doc. A/CN.9/WG.II/WP.160,

130 Report of Working Group II (Arbitration and Conciliation) on the Work of Its Fifty-Third Session, 20 October 2010, Doc. A/CN.9/712, paras. 31 and 60.

131 Settlement of commercial disputes: Preparation of a legal standard on transparency in treaty-based investor-State arbitration, 9 December 2010, UNCITRAL, Working Group II (Arbitration and conciliation), 54th session, Doc. A/Cn.9/wg.ii/wp.162/Add.1, paras. 18-27; see also Report of Working Group II (Arbitration and Conciliation) on the Work of Its 54th ses-sion, 25 February 2011, UNCITRAL, Doc. A/CN.9/717, para. 124.

132 Report of Working Group II (Arbitration and Conciliation) on the Work of Its 54th session, 25 February 2011, UNCITRAL, Doc. A/CN.9/717, paras. 118-121.

133 Settlement of commercial disputes: Preparation of a legal standard on transparency in treaty-based investor-State arbitration, 29 July 2011, UNCITRAL, Working Group II (Arbitration and conciliation), 55th session, Doc. A/CN.9/WG.II/WP.166, paras. 43-51.


provided to third parties and the arbitral tribunal, taking account of the fact that a number of States have a little experience in that field”.134

Most recently the long, detailed version of the provision has been preferred; it contains several specifications as to the form of the brief, the duty to reveal sources of funding and sponsorship both of the organization and of the preparation process for the brief, and the rights of the parties in the procedure.135 The expression third persons was used instead of amicus curiae,136 and emphasis was placed on both the importance of distinguishing it conceptually from the intervention of non-disputing States and the importance of limiting the latter to issues of law and matters of inter-pretation, to prevent amicus participation from resembling diplomatic protection.137 This second proposal was polished further in 2012 with minor changes.138

The work goes forward, and the Working Group remains active in proposing shared solutions that contemplate the possibility to submit third person and non-disputing party briefs in arbitrations between private investors and States.

2.3.5. A Few Remarks on Amici Curiae in Investment Arbitrations

The possibility to submit amici curiae is today envisaged at both levels, the material (the treaties) and the procedural (the arbitration rules). We have focused on two multilateral instruments, NAFTA and CAFTA, on the arbitration rules made by ICSID and on the works on transparency at the UNCITRAL.

The three texts that envision the explicit possibility to submit amici curiae are different: the FTC Statement and the ICSID Arbitration Rules refer to “non-disputing parties”, CAFTA to “amici curiae”, and UNCITRAL to “third persons”. More important, the FTC Statement of 2003 is detailed, regulating basically all the aspects of the procedure. The ICSID Arbitration Rules are more generic, but still provide guidance for the most problematic aspects. CAFTA is highly generic. However, in (almost) all the CAFTA cases with participation of amici, CAFTA pro-visions were completed by the ICSID Arbitration Rules. In the only case in which

134 Ibid., para. 47; the proposals are at para. 42 ff.135 Report of the Working Group II (Arbitration and Conciliation) on the Work of Its Fifty-

Fifth session, 17 October 2011, UNCITRAL, Doc. A./CN.9/736, paras. 69-70.136 Ibid., paras. 71-74.137 Ibid., para. 79.138 Settlement of commercial disputes: Preparation of a legal standard on transparency in

treaty-based investor-State arbitration, 13 December 2011, UNCITRAL, Working Group II (Arbitration and conciliation), 56th session, Doc. A/CN.9/WG.II/WP.169, para. 35; Report of Working Group II (Arbitration and Conciliation) on the work of its 57th session, 12 October 2012, UNCITRAL, Doc. A/CN.9/760, paras. 39-57; Settlement of commercial disputes: Preparation of a legal standard on transparency in treaty-based investor-State arbitration, 30 November 2012, UNCITRAL, Working Group II (Arbitration and Conciliation) 58th session, Doc. A/CN.9/WG.II/WP.176, paras. 35-36.

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a CAFTA arbitration, regulated by the UNCITRAL Arbitration Rules, accepted the participation of amici, the Tribunal followed a procedure almost identical to that of ICSID arbitrations (see section 2.3.4), and the order on amicus submissions in the Apotex Inc. v. USA case explicitly referred to ICSID Arbitration Rules. So, in practice, all the cases have so far managed amici submissions very similarly: the tribunals set up a part of the proceedings dedicated to presenting the amici, inviting their participation, and establishing time limits and further details not present in the ICSID Arbitration Rules, such as the briefs’ length; then the tribunals circulate the briefs among the parties; and finally, they mention the briefs in the body of the decision. The whole procedure more closely resembles an intervention, with the involvement of the parties, than the light submission of a brief to inform the tribu-nal. This structured way to discuss amici participation, which reveals the names of all applicants, and the reasons for refusals, is more public than that of the courts of human rights seen above (see section 2.1).

Some relevant issues emerge from these texts and decisions. The first concerns the use of the Internet to notify the public of the possibility to submit a brief. In Pac Rim Cayman v. El Salvador, Apotex Inc. v. USA, and Apotex Holding v. USA the Internet was used as a tool to reach any interested party by issuing a public press release with the conditions for a request of leave for participating.139 However, in Apotex Holding v. USA, the Tribunal did not grant much time to submit the request to participate.140 The second regards the role of the two parties in opening up the ar-bitration to amici participation, and then in interfering with their submission. ICSID Arbitration Rule 37 says that a tribunal “[a]fter consulting both parties” may allow a non-disputing parties “to file a written submission”. This generic expression at-tributes to the parties the right to interfere with the procedure, in particular deciding in advance to have an arbitration in which the participation of non-disputing parties is prohibited, or to refuse a request for leave. This Rule, however, being so generic (it just says that the Tribunal has to consult both parties), leaves the final decision to the Tribunal. The FTC Statement gives a more limited role to the parties: it says that “[n]o provision of the [NAFTA] limits a Tribunal’s discretion to accept writ-ten submissions from a [non-disputing party]” (para. A.1), and that “[t]he Tribunal will set an appropriate date by which the disputing parties may comment on the application for leave to file a non-disputing party submission” (para. B.5). CAFTA puts the whole decision in the hands of the arbitrators: “The tribunal shall have the authority to accept and consider amicus curiae submissions” (Article 10.20.3), but, as already mentioned above (see section 2.3.4), arbitral tribunals have consulted the parties even when not explicitly required to do so by the rules of procedure. The third issue concerns the possibility for other States to submit a brief. The FTC Statement clearly addresses only the private parties: first, it envisages at Article

139 Pac Rim Cayman v. El Salvador, cit. supra note 115; Apotex Inc. v. USA, and Apotex Holding v. USA, cit. supra note 94.

140 See supra section 2.3.1.


1128 a limited for Member States possibility to intervene; second, it says that a non-disputing party “is a person of a Party, or that has a significant presence in the territory of a Party”. ICSID Arbitration Rules are silent on this point. In practice, no State has submitted an amicus brief in ICSID arbitration on bilateral treaties. CAFTA in theory is as clear as NAFTA, with a sharp division between amici par-ticipation and Member States’ ability to intervene for the purpose of interpreting the treaty (Article 10.20.2).141 However, Costa Rica and Nicaragua in Commerce Group and San Sebastian Gold Mines, were allowed to participate as amici. The issue has come up explicitly during the UNCITRAL works on transparency, and a solution similar to NAFTA has been proposed.

2.4. The ICJ and the ITLOS Seabed Disputes Chamber

As described above (section 1.3), the ICJ does not allow for the participation of private entities, and so far has generally been thrifty in admitting third parties.142 Article 34 provides that only States can appear before the Court (excluding, there-fore, also international organizations, an anomaly already stressed by Jennings almost 20 years ago),143 but provides the possibility for them to submit informa-tion.144 Article 66 is broader, and allows international organizations to present oral and written statements in the advisory jurisdiction.145

However, although the incidents did not appear in the official record of the case, in the past the Court has received communications from NGOs in both contentious cases and in advisory proceedings. They were “dropped” in the Court’s library so as to be accessible to the judges. Secondary sources refer to this happening in the Nicaragua and Gabcikovo-Nagymaros cases,146 and in a letter to the International

141 A question related to this one came out in the Methanex case, before a NAFTA/UNCITRAL arbitral tribunal: Mexico contested that the admittance of amici curiae would give to private entities more power to intervene than the limited power given to Member States envisaged by NAFTA Art. 1128, but then did not apply to participate as amicus to the case.

142 See Chinkin, “Third-Party Intervention before the International Court of Justice”, AJIL, 1986, p. 496 ff.; paLChetti, “Opening the International Court of Justice to Third States: Intervention and Beyond”, Max Planck UNYB, 2002, p. 139 ff.

143 jennings, “The International Court at Fifty”, AJIL, 1995, p. 493 ff., p. 504. For other observations see dupuy, “Article 34”, in zimmerman, tomusChat and oeLLers-frahm, The Statute of the International Court of Justice, Oxford, 2006, pp. 554-556.

144 Art. 34.2: “The Court, subject to and in conformity with its Rules, may request of public international organizations information relevant to cases before it, and shall receive such infor-mation presented by such organizations on their own initiative”.

145 ospina, cit. supra note 3, pp. 227-232.146 Apparently, the usage started with the Nicaragua case, sheLton, cit. supra note 8, p.

619. For a secret exchange of amici briefs among judges and the parties see also what stated in Methanex Corp. v. USA, Decision on Petitions from Third Persons to Intervene as “Amici Curiae” of 15 January 2001, para. 34: “more recently, it appears that that written submissions

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122 ARTICLES

Herald Tribune the Registrar summarized one of the communications sent to the Court by an NGO in the advisory proceedings on the Legality of the Threat or Use of Nuclear Weapons: “The amicus curiae brief has been received by the Court but has not been admitted as part of the record in these cases. It is, however, available to members of the Court in their Library”.147

Consolidating this usage, but only as far as the advisory jurisdiction is con-cerned, the possibility for NGOs to send relevant information to the Court is pro-vided for by Practice Direction XII, which says:

“1. Where an international non-governmental organization submits a written statement and/or document in an advisory opinion case on its own initiative, such statement and/or document is not to be consid-ered as part of the case file. 2. Such statements and/or documents shall be treated as publications readily available and may accordingly be referred to by States and intergovernmental organizations presenting written and oral statements in the case in the same manner as publica-tions in the public domain. 3. Written statements and/or documents submitted by international non-governmental organizations will be placed in a designated location in the Peace Palace. All States as well as intergovernmental organizations presenting written or oral state-ments under Article 66 of the Statute will be informed as to the loca-tion where statements and/or documents submitted by international non-governmental organizations may be consulted”.148

In short, it provides a special shelf at the Peace Palace where the relevant ma-terials can be deposited, located beside the thousands of other volumes present in its library. This procedure is hard to comment on because it is not a procedure: in envisaging a drop-box accessible to everybody, it avoids the establishment of any ordered, proceduralized interaction between the authors of the brief, the judges, and the parties, eliminating at the same time any public knowledge of the briefs.

The ITLOS Seabed Disputes Chamber adopted a similar, approach to deal with amici submission. In the advisory proceedings on the Responsibilities of States Sponsoring Entities with respect to Activities in the International Seabed Area, the Chamber, in the absence of a procedure dedicated to amici briefs, posted two briefs to the official website of the ITLOS, and provided a room in the same building for the amici to explain their submissions to the press.149 Unlike with the ICJ, in this

were received by the ICJ, unofficially, in Case Concerning the Gabcikovo-Nagymaros Project, ICJ Reports, 1997”.

147 “Letter to the Editor”, International Herald Tribune, 15 November 1995.148 watts, “ICJ’s Practice Directions of 30 July 2004”, The Law and Practice of International

Courts and Tribunals, 2004, p. 385 ff.149 For references, see supra note 1.

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case the views expressed in the amicus briefs were made public, as the President of the Seabed Chamber stressed in a paper.150 Still it is not clear who else asked to participate, or what the reasons were for accepting or excluding them. A good way to temper this downside could be to publish a reasoned procedural order in which all the applicants are listed, and in which reasons are given for the acceptance of some of them.151

In any case, in the contentious jurisdiction, both before the ICJ and the ITLOS the possibility for private entities to submit and amicus brief is still precluded.

3. ConCLusions

The analysis of the procedures and of the practice of courts and tribunals shows different ways of dealing with amici curiae. In the subsequent pages, a table is provided to aid in illustrating the results of this study in a concise way, followed by a comment.

4. finaL Comments

The overall analysis shows that there are several procedural issues surrounding amici participation, which prevent it from being fully public, effective and transpar-ent. The first regards, naturally, the existence of rules for submitting amici. While many jurisdictions have introduced clear rules allowing amici curiae intervention, long established practices, like at the WTO and in arbitrations regulated by the UNCITRAL Arbitration Rules, have not (yet) culminated in a formal consecration. The lack of clear rules is a critical feature for an instrument that should enhance the public’s right of participation in a trial.

A second issue regards the accessibility of information regarding the existence of a dispute, and the possibility and terms for submitting an amicus brief. It is now common to use the Internet to display the enrolment of a dispute worldwide, and this gives interested persons at least the possibility of awareness of the official beginning of a dispute. However, some jurisdictions do not publish all the relevant information that one must know to properly prepare a brief, such as the object of the dispute itself, or the deadlines for making a request to submit or for making a

150 treves, cit. supra note 2.151 Ibid.: “[T]he attitude taken by the Chamber is similar to that reflected in the ICJ’s Practice

Direction XII […]. There is, however, a difference. While, under the Court’s Practice Direction these submissions are to ‘be placed in a designated location of the Peace Palace’, the Chamber, well conscious of the impact of modern technology, decided to place them on the Tribunal’s website, although on a separate section”. On the participation of the public to the ITLOS, see gautier, cit. supra note 2, p. 233 ff.

Tabl

eW

TO -

Pane

l W

TO –

AB

ECtH

R

I-A

CtH

Rs

NA

FTA

CA

FTA

ICSI

D

Arb

. R

ules

Seab

ed D

CIC

J

a) Is

a p

roce

-du

re p

rovi

ded

for?

No

proc

edur

e in

the

DSU

or

the

rule

s of

proc

edur

e.A

llow

ed b

y re

fere

nce

to

Arts

12/1

3 of

D

SU

No,

but

se

vera

l rep

orts

ac

cept

ed

brie

fs, m

akin

g re

f. to

Art.

17

of D

SU a

nd

Art.

16(

1) o

f th

e W

orki

ng

Proc

edur

es.

ECH

R A

rt. 3

6;R

ules

of

Proc

edur

e A

rt. 4

4

Not

in th

e A

mer

ican

C

onve

ntio

n or

the

Cou

rt’s

Stat

ute.

Yes i

n th

e C

ourt’

s Rul

es,

Arts

2, 2

8 an

d 44

, for

con

-te

nt. j

uris

d.

Not

in th

e A

gree

men

t, bu

t a 2

003

Stat

emen

t of

the

mem

bers

re

com

men

d a

deta

iled

proc

edur

e

CA

FTA

Art.

10

.20.

3IC

SID

A

rbitr

atio

n R

ule

37

No.

Onl

y pr

eced

ent:

the

Adv

. Op.

of 1

Fe

b. 2

012

Not

in th

e St

atut

e.Pr

actic

e D

irect

ion

XII

fo

r adv

. jur

isd.

b) H

ow is

pa

rtici

patio

n st

ruct

ured

?Is

pre

limi-

nary

leav

e re

quire

d?

Wha

t is t

he fi

l-in

g de

adlin

e?

Mus

t the

pe

titio

n ta

ke

a sp

ecifi

ed

form

?

Usu

ally

pe

titio

ners

si

mul

tane

-ou

sly

send

the

com

plet

e br

ief

to b

oth

pane

l an

d pa

rties

, be

fore

the

first

m

eetin

g/th

e la

st m

eetin

g,

of th

e pa

rties

(th

is is

con

tro-

vers

ial)

Usu

ally

pet

i-tio

ners

send

th

e co

mpl

ete

brie

f at t

he

sam

e tim

e to

bo

th p

anel

and

pa

rties

dur

ing

the

proc

eed-

ings

Lette

r to

Pres

iden

t to

obta

in ri

ght

to p

artic

ipat

e w

ithin

12

wee

ks a

fter

notic

e of

the

appl

icat

ion

(or

relin

quis

hmen

t of

juris

dict

ion/

ac

cept

ance

of

the

pane

l of

the

Gra

nd

Cha

mbe

r) h

as

been

giv

en to

th

e re

spon

dent

(o

r the

par

ties)

Subm

issi

on to

C

ourt

with

out

prel

imin

ary

requ

est,

with

in

15 d

ays f

ol-

low

ing

publ

ic

hear

ing/

the

orde

r set

ting

dead

lines

for

the

subm

issi

on

of fi

nal a

rgu-

men

ts

Leav

e m

ust

be re

ques

ted,

m

ay b

e fil

ed a

t an

y m

omen

t, no

mor

e th

an 5

ty

ped

page

s.Th

en e

vent

ual

brie

f.B

oth

in w

rit-

ing

(par

a. B

.2)

No.

In p

rac-

tice,

a p

revi

-ou

s req

uest

for

leav

e is

file

d at

an

y m

omen

t.Th

en th

e br

ief.

Bot

h in

w

ritin

g

No.

In p

rac-

tice,

a p

revi

-ou

s req

uest

for

leav

e is

file

d at

an

y m

omen

t.Th

en th

e br

ief.

Bot

h in

w

ritin

g

Petit

ion

to th

e Pr

esid

ent o

f th

e C

ham

ber

with

in ti

me

limits

of t

hose

al

low

ed to

pa

rtici

pate

. Th

en th

e br

ief

Subm

issi

on

of b

rief t

o C

ourt

with

out

prel

imin

ary

requ

ests

, at

any

mom

ent

durin

g pr

o-ce

edin

gs

(con

t.)

c) W

hich

kin

d of

ent

ity is

al

low

ed to

re

ques

t par

tici-

patio

n?A

re th

ere

geog

raph

ical

lim

itatio

ns?

Pers

ons,

prof

esso

rs/

expe

rts, a

s-so

ciat

ions

and

N

GO

s, m

em-

ber S

tate

s. N

o ge

ogra

phic

lim

itatio

ns

Pers

ons,

prof

esso

rs/

expe

rts, a

s-so

ciat

ions

and

N

GO

s, m

em-

ber S

tate

s. N

o ge

ogra

phic

lim

itatio

ns

Party

Sta

tes,

Cou

ncil

Eur.

Com

mis

sion

er

HR

s, pr

ivat

e pe

rson

s.In

pra

ctic

e al

so N

GO

s an

d or

gans

of

IOs.

No

geog

raph

ic

limita

tion

for

entit

ies o

ther

th

an S

tate

s: in

pr

actic

e ex

tra

Euro

pean

ba

sed

NG

Os

file

brie

fs (b

ut

only

mem

ber

Stat

es c

an

appl

y)

Art.

44:

any

pe

rson

and

in-

stitu

tion

(thus

, N

GO

s/IO

s ar

e in

clud

ed).

Rar

ely

Om

buds

man

ha

s file

d am

icus

.N

o ge

ogra

phi-

cal l

imita

tion

extra

Am

eric

as

base

d en

titie

s fil

e br

iefs

.

Para

. B.1

sa

ys th

at o

nly

pers

ons h

avin

g a

sign

ifica

nt

pres

ence

in th

e te

rrito

ry o

f a

Party

can

ap-

ply

(not

mem

-be

r Sta

tes)

Any

“pe

rson

or

ent

ity th

at is

no

t a d

ispu

ting

party

”

Any

per

son

or e

ntity

that

is

not

a p

arty

to

the

disp

ute

(in p

ract

ice,

N

GO

s, pr

ivat

e en

titie

s, an

d in

a C

AFT

A

case

inte

rest

ed

mem

ber S

tate

s to

o)

No

indi

catio

nIn

con

tent

. ju

risd.

, onl

y IO

s; in

the

adv.

juris

d.

besi

de S

tate

s an

d IO

s, on

ly

Int.

NG

Os,

not

asso

ciat

ions

, ex

perts

, loc

al

unio

ns, p

rofe

s-so

rs

d) Is

ther

e a

duty

to

disc

lose

con

-ta

cts b

etw

een

parti

es a

nd

amic

i, or

the

owne

rshi

p an

d th

e fu

ndin

g of

as

soci

atio

ns

and

NG

Os?

Con

fiden

tialit

y ru

les i

mpl

y ne

cess

ity o

f a

clea

r sep

ara-

tion

betw

een

parti

es a

nd

amic

i

Con

fiden

tialit

y ru

les i

mpl

y ne

cess

ity o

f a

clea

r sep

ara-

tion

betw

een

parti

es a

nd

amic

i

No

indi

catio

nN

o in

dica

tion

Dut

y to

di

sclo

se th

e id

entit

y of

th

e ap

plic

ant,

poss

ible

con

-ta

cts w

ith th

e pa

rties

, and

fu

ndin

g (p

ara.

B

.2)

No

indi

catio

nN

o in

dica

tion.

A

Trib

unal

re

ject

ed a

n am

icus

not

in

depe

nden

t fr

om o

ne p

arty

No

indi

catio

nN

o in

dica

tion

Tabl

eW

TO -

Pane

l W

TO –

AB

ECtH

R

I-A

CtH

Rs

NA

FTA

CA

FTA

ICSI

D

Arb

. R

ules

Seab

ed D

CIC

J

(con

t.)

e) U

nder

wha

t co

nditi

ons

can

amic

i be

adm

itted

?

The

appl

ican

t m

ust m

ake

an o

rigin

al

cont

ribut

ion

to

the

reso

lutio

n of

the

disp

ute.

In

man

y ca

ses

adm

itted

onl

y w

hen

a pa

rty

inco

rpor

ated

th

eir a

rgu-

men

ts

The

appl

ican

t m

ust m

ake

an o

rigin

al

cont

ribut

ion

to

the

reso

lutio

n of

the

disp

ute.

In

man

y ca

ses

adm

itted

onl

y w

hen

a pa

rty

inco

rpor

ated

th

eir a

rgu-

men

ts

Not

spec

ified

in

the

rule

s. In

pr

actic

e, th

e br

iefs

can

not

put f

orw

ard

ar-

gum

ents

in fa

-vo

r or a

gain

st

alle

gatio

ns,

but s

houl

d be

he

lpfu

l to

the

Cou

rt

They

mus

t not

be

pat

ently

in

adm

issi

ble,

A

rt. 2

8(4)

of

the

Rul

es

The

appl

ican

t m

ust h

ave

an in

tere

st in

th

e ar

bitra

-tio

n, id

entif

y an

d ad

dres

s a

spec

ific

issu

es o

f fac

t or

law,

and

ex

plai

n w

hy

the

Trib

unal

sh

ould

acc

ept

the

subm

issi

on

(par

a. B

.2)

The

Trib

unal

w

ill c

onsi

der

whe

ther

the

amic

us w

ould

br

ing

“a

pers

pect

ive,

pa

rticu

lar

know

ledg

e or

in

sigh

t tha

t is

diff

eren

t fr

om th

at o

f th

e di

sput

ing

parti

es”,

but

w

ithin

the

scop

e of

the

disp

ute

(par

a.

B.6

)

No

indi

catio

nTh

e ap

plic

ant

shal

l brin

g a

pers

pect

ive,

pa

rticu

lar

know

ledg

e or

in

sigh

t tha

t is

diffe

rent

from

th

at o

f the

dis

-pu

ting

parti

es,

but w

ithin

the

scop

e of

the

disp

ute

Not

spec

ified

Not

spec

ified

Tabl

eW

TO -

Pane

l W

TO –

AB

ECtH

R

I-A

CtH

Rs

NA

FTA

CA

FTA

ICSI

D

Arb

. R

ules

Seab

ed D

CIC

J

(con

t.)

f) Is

con

tent

sp

ecifi

ed:

-fac

ts-la

w-v

alue

-lang

uage

-new

poi

nts

-leng

th

- Yes

- Yes

- No

- Usu

ally

En

glis

h- N

o- N

o

- No

(DSU

, A

rt. 1

7.6)

- Yes

- No

- Usu

ally

En

glis

h- O

nly

new

po

ints

- N

o

- Yes

- Yes

- Yes

- One

of t

he

two

offic

ial

lang

uage

s- N

o- N

o (b

ut fr

om

prac

tice

seem

s fr

om 1

0 to

20

pp)

- Yes

- Yes

- Yes

-Lan

guag

e of

th

e pr

oced

ure

- No

- No

limits

(in

prac

tice

also

ve

ry lo

ng)

- Yes

- Yes

- No

- Lan

guag

e of

th

e pr

oced

ure

- Yes

- Les

s tha

n 20

pp

, ann

exes

in

clud

ed

Not

spec

ified

- Yes

- Yes

- Not

exc

lude

d- L

angu

age

of

the

proc

edur

e- Y

es- U

sual

ly le

ss

than

20

page

s

Not

spec

ified

Doc

umen

ts o

r st

atem

ents

. No

othe

r spe

cifi-

catio

ns

g) A

re b

riefs

al

low

ed o

nly

in c

erta

in

kind

s of

disp

utes

?

Not

spec

ified

; in

pra

ctic

e ev

ery

disp

ute

Not

spec

ified

; ev

ery

disp

ute

in p

ract

ice

Not

spec

ified

; in

pra

ctic

e ev

ery

disp

ute.

Not

spec

ified

; in

pra

ctic

e ev

ery

disp

ute

Onl

y “i

f the

re

is a

pub

lic

inte

rest

in th

e su

bjec

t-mat

ter

of th

e ar

bitra

-tio

n” (p

ara.

B

.6)

Not

spec

ified

; in

pra

ctic

e ev

ery

disp

ute

Not

spec

ified

; in

pra

ctic

e ev

ery

disp

ute

Not

spec

ified

Int.

NG

Os c

an

appl

y on

ly to

th

e ad

viso

ry

juris

dict

ion

h) W

ho h

as

the

pow

er to

ad

mit

or d

eny

amic

us p

artic

i-pa

tion?

Form

ally

th

e pa

nel;

in

prac

tice

the

opin

ion

of

the

parti

es is

de

cisi

ve

The A

ppel

late

B

ody

The

Pres

iden

t.Th

e Pa

rties

are

no

t inv

olve

d

The

Trib

unal

co

nsul

ts th

e Pr

esid

ent.

Onl

y th

e Pe

rman

ent

Com

mis

sion

ca

n re

fuse

it.

The

Parti

es a

re

not i

nvol

ved

The

Trib

unal

; th

e pa

rties

m

ust b

e co

n-su

lted

The

Trib

unal

al

one.

In

prac

tice,

eve

n in

cas

es n

ot

regu

late

d by

IC

SID

Arb

. R

ules

, the

pa

rties

are

co

nsul

ted

The

Trib

unal

; th

e pa

rties

m

ust b

e co

n-su

lted

The

Pres

iden

t of

the

Cha

mbe

r

No

answ

er is

re

quire

d

i) W

hat f

orm

do

es th

e an

-sw

er ta

ke?

No

spec

ific

form

has

bee

n us

ed. N

o du

ty

to p

ublis

h re

fusa

ls

No

spec

ific

form

has

bee

n us

ed. N

o du

ty

to p

ublis

h re

fusa

ls

Lette

r to

the

appl

ican

t.N

o du

ty to

pu

blis

h re

fus-

als

Lette

r to

the

appl

ican

t.N

o du

ty to

pu

blis

h re

fus-

als

Usu

ally

a re

a-so

ned

orde

rU

sual

ly a

rea-

sone

d or

der

Usu

ally

a re

a-so

ned

orde

rC

omm

uni-

catio

n fr

om

Pres

iden

t

No

answ

er is

re

quire

d

Tabl

eW

TO -

Pane

l W

TO –

AB

ECtH

R

I-A

CtH

Rs

NA

FTA

CA

FTA

ICSI

D

Arb

. R

ules

Seab

ed D

CIC

J

(con

t.)

j) Is

the

brie

f se

nt to

the

parti

es?

Usu

ally

pet

i-tio

ners

sim

ul-

tane

ousl

y se

nd

brie

f to

Pane

l an

d to

par

ties;

Pa

nel g

ives

co

mm

unic

a-tio

n to

par

ties

Usu

ally

pe

titio

ners

si-

mul

tane

ousl

y se

nd b

rief t

o A

B a

nd to

par

-tie

s; A

B g

ives

co

mm

unic

a-tio

n to

par

ties

Yes,

afte

r ac-

cept

ance

Yes,

afte

r ac-

cept

ance

Yes (

the

par-

ties h

ave

the

right

to su

bmit

thei

r obs

erva

-tio

ns)

No

indi

ca-

tion.

So

far,

in a

rbitr

atio

ns

regu

late

d by

th

e IC

SID

A

rb. R

ules

, ye

s

Yes

Yes

Mad

e av

ail-

able

to p

artie

s in

ded

icat

ed

room

. N

otifi

catio

n se

nt to

Sta

tes/

IOs i

nter

ven-

ing

k) R

ight

s of

the

inte

rven

-er

s, pu

blic

a-tio

n of

thos

e ad

mitt

ed, o

ral

pres

enta

tion

No

acce

ss to

fil

e; n

o or

al

pres

enta

tion

of a

rgu-

men

ts; a

mic

us

not a

lway

s m

entio

ned

and

only

in e

arly

ca

ses a

ttach

ed

to c

ase

file

No

acce

ss to

fil

e; n

o or

al

pres

enta

tion

of a

rgum

ents

; am

icus

not

al

way

s men

-tio

ned,

and

not

pu

blis

hed

No

acce

ss

to fi

le. M

ay

be in

vite

d to

pre

sent

ar

gum

ents

: us

ually

Sta

tes

and

IOs o

rgan

s in

terv

enin

g as

am

ici m

ake

oral

stat

e-m

ents

. The

br

iefs

acc

epte

d ar

e m

entio

ned

in th

e de

ci-

sion

, but

not

pu

blis

hed

No

acce

ss

to fi

le. M

ay

be in

vite

d to

pr

esen

t arg

u-m

ents

; tho

se

amic

us b

riefs

ac

cept

ed a

re

men

tione

d, b

ut

the

brie

fs a

re

not p

ublis

hed

Rig

ht to

hav

e ac

cess

to th

e ca

se fi

le n

ot

spec

ified

. In

certa

in c

ases

, lim

ited

acce

ss

to P

artie

s’ fil

es (t

o kn

ow

scop

e of

di

sput

e an

d pe

rspe

ctiv

es o

f th

e pa

rties

).Th

ose

that

su

bmitt

ed a

br

ief a

re m

en-

tione

d in

the

deci

sion

s. Th

e Tr

ibun

al

can

allo

w a

n or

al p

rese

nta-

tion

afte

r the

pa

rties

are

he

ard

Rig

ht to

hav

e ac

cess

to th

e ca

se fi

le n

ot

spec

ified

.In

pra

ctic

e th

ose

that

sub-

mitt

ed a

brie

f ar

e m

entio

ned

in d

ecis

ions

.Th

e Tr

ibun

al

can

allo

w a

n or

al p

rese

nta-

tion

In c

erta

in

case

s, lim

ited

acce

ss to

the

Parti

es’ fi

les

(to k

now

the

scop

e of

the

disp

ute

and

the

pers

pect

ives

of

the

parti

es).

In p

ract

ice,

th

ose

that

su

bmitt

ed

a br

ief a

re

men

tione

d in

th

e de

cisi

ons.

The

Parti

es

(Rul

e 32

) can

al

low

an

oral

pr

esen

tatio

n

No

acce

ss to

fil

e, n

o rig

ht to

ap

pear

. B

rief a

re

publ

ishe

d on

th

e IT

LOS

web

-site

. In

terv

ener

s al

low

ed

to p

rese

nt

argu

men

ts in

se

para

te ro

om

of C

ourt,

for

the

pres

s and

th

e pu

blic

, but

no

t bef

ore

the

Cha

mbe

r

No

right

: the

do

cum

ent/

brie

f sen

t to

the

Cou

rt is

tre

ated

as

part

of le

gal

rese

arch

Tabl

eW

TO -

Pane

l W

TO –

AB

ECtH

R

I-A

CtH

Rs

NA

FTA

CA

FTA

ICSI

D

Arb

. R

ules

Seab

ed D

CIC

J


submission. For example: the ECtHR publishes all three relevant pieces of infor-mation through the Internet: the enrolment of the dispute, the object of the dispute (i.e. the relevant provisions and questions touched upon the parties), and the rel-evant dates for requesting the possibility to send a brief (even if this deadline is not completely clear in the proceeding before the Grand Chamber). At the WTO the enrolment of the dispute and the relevant provisions at stake are published online, but the dates for the submission of briefs are not clear. Disputes under the ICSID Rules can be kept completely confidential by the parties, but even in very open dis-putes not all the relevant information is displayed. Two independent initiatives, not envisaged in the relevant regulations, were adopted by certain arbitral tribunals to set these problems right. In a few cases the tribunals have published a press release with the deadlines for submitting amicus briefs.152 In another case, a tribunal gave the petitioners limited access to the case file for the purpose of submitting briefs that could help the tribunal in its decision (see section 2.3.2).

As for the transparency of the courts and tribunals in dealing with the submis-sions, the questions are more complicated. The strict requirements for amici par-ticipation in the FTC Statement and ICSID Arbitration Rules implicitly impose on arbitral tribunals the duty of giving a public verification of their fulfilment, usually through an order (see section 2.3). The ECtHR and IACtHR, do not entail a duty to publish the names of the amici that requested participation, the briefs received, and those possibly refused. The same happens at the WTO, and at the advisory jurisdiction of the ICJ. This is a serious issue for procedures that should enhance the participation of the public in a proceeding. In procedures in which the third non-disputing parties can bring comparative perspectives, facts, witnesses from the ground, scientific evidence, and also value-judgments interpreting a text, it is extremely important to explain why the trial has been open to one applicant, and closed to another. Without this requirement it is impossible to tell whether all inter-national procedures so far have managed amici submission in the clearest and most transparent way (it is possible that they have), or if the opposite is true. Moreover, the absence of these duties does not help foster a public understanding of the voices that contribute to a decision.

Another issue regards the involvement of the parties in the procedure, and their ability to make decisions about amici admittance and to comment on them. On one extreme end of this issue are the IACtHR and the ICJ, in which the parties have no role: at the San José Court the brief reaches the curia while the parties have no pow-er either to prevent its admission, or to make observations regarding it, apart from in the final phase (see section 2.1.2). At the opposite end of the spectrum there is the practice developed at the WTO, in which the opinion of the parties, even though the panellists have affirmed their autonomy, seems decisive for the relevance of amici

152 See Pac Rim Cayman v. El Salvador, cit. supra note 115; Apotex Inc. v. USA, and Apotex Holding v. USA, cit. supra note 94.

130 ARTICLES

(see section 2.2). This choice, too, can be criticized because it allows the parties to prevent the participation of amici in disputes in which they might otherwise play an important role. Other procedures fall in the middle. In the rules of the Strasbourg Court the parties do not have any place in admitting the amici, which the Chambers manage alone, but they do receive them before the hearings, therefore having time to make reply. Finally, in investment arbitrations, the parties have the possibility to keep a case confidential, but once they leave it open, the exchange about the admissibility and content of amicus briefs is usually well-structured in a procedure guided by the arbitrators in which the parties are fully involved. Among all these models, the choice of the Strasbourg Court seems the most convincing. By linking the Court and the amici it prevents the interference of the parties even in high stakes disputes. By circulating the amici before the hearings, it gives the parties the ability to comment on them.153 At the same time, by not establishing an ad hoc procedure for amicus briefs in the middle of the proceeding it does not extend the length of the proceedings and the duties of the parties.

At the WTO some problems have emerged concerning the contacts between the amici and the parties, and the circulation of confidential documents (see above at section 2.2). Little can be done to prevent a party from communicating relevant information. But aside from the parties’ or their lawyers’ calculated manoeuvring to appear stronger before the panellists, it is also the lack of clear rules on amici submission that encourages contacts between the parties and those interested in participating as amici. In the absence of a clear procedure, only those with contacts inside a proceeding have the possibility to intervene in a proper way. The problem at the WTO concerned the confidentiality of the case file. However, it actually regards the independence of the amici from the parties, their thirdness, their friend-ship to the judges. A similar issue emerged in one ICSID arbitration (Von Pezold v. Zimbabwe). However, in investment arbitrations and at the WTO it is common to see associations participating as amici curiae in disputes involving one of their members. At the IACtHR even an organ of the State involved in the case submitted a brief. The question of the friendship and independence of the amici is also at the base of certain rules requesting that amici submit information about their sources of funding and about the preparation of the brief. Contrary to the approach taken in Von Pezold v. Zimbabwe, all these questions regard the reliability of the opinions contained in a brief, rather than their admissibility.

Even more important is the question of which entities may participate as amici. All the analysed jurisdictions allow for broad participation. In practice, several kinds of amici have participated in the cases considered: those representing a spe-

153 Also the solution envisaged by the Seabed Chamber Dispute of the ITLOS (submission to the Chamber, publication of the briefs on the internet, oral statement to the press in an ITLOS’ room) seems to strike a good compromise between the need to display the reasons of the amici and their communication with the curia, on the one hand, and the need to not interfere with the parties’ participation in the trial, on the other.


cific group and interest (like the producers of steel in a case involving steel pro-duction or native groups in cases involving native rights, etc.); those representing common concerns (that can also turn out to represent specific interests), like NGOs and associations advocating for environmental protection, human rights; those that have institutional tasks (like the UNHCR in cases affecting the rights of migrants or refugees, or the European Commission for arbitrations involving members of the European Union); and those that, even if participating as amici, have the pe-culiar distinction of representing Member States (whose weight in such disputes is much different than that of other amici). This last point deserves attention: Member States usually have limited interpretive power to intervene under the treaties, on the basis of a specific procedure. This choice prevents the dispute from becoming a forum open to political influences, keeps it focused on the settlement of the dispute, and leaves more independence to judges and arbitrators. However, in many cases, as before the ECtHR, the CAFTA arbitral tribunals, and on rare occasions before the WTO, States intervene under the general rules for amici participation, accord-ing to the principle: if private parties may, a fortiori may a State.154 The possibility for States to submit a brief opens the proceedings up to a more political role, in which the Member States can reaffirm their vision of a dispute (not only of the treaty at stake) before the judges and arbitrators with, on the one hand, the benefit of the protection of the integrity of the systems, but, on the other, the possible risk of compressing and sacrificing the reasons of one of the two parties to the dispute.

As for the right of the parties (and the courts) to not be inconveniently swamped by amicus briefs, the general trend of admittance of amici into international tribu-nals has not, so far, overwhelmed courts and tribunals. Only before the IACtHR has the participation of amici sometimes been very wide.155 Before the other jurisdic-tions, like the WTO, the Strasbourg Court, or the investment tribunals, this has not been the case. Therefore, at least as it stands today, and keeping in mind the strict page limit often imposed by order of courts and tribunals, the possibility of interest-ed entities to submit a brief has not yet been overly burdensome on the proceedings. However, this data is generally difficult to evaluate, given the fact that the number of requests to participate is not known. One of the reasons behind the moderate number of amici submitted could be the filtering process carried out by registrars, judges and arbitrators, but no public record allows us to reflect on such a question.

It is also difficult to assess the effective impact of amicus briefs on a dispute and on the outcome of the dispute. At the WTO, both panels and AB have typically been very dismissive of their arguments. Only in US – Tuna II (Mexico) report

154 EC – Sardines, AB Report, cit. supra note 56, para. 164: “As we have already determined that we have the authority to receive an amicus curiae brief from a private individual or an organi-zation, a fortiori we are entitled to accept such a brief from a WTO Member”.

155 The Rules of the Inter-American Court place no restrictions on the length and number of amicus briefs, and sometimes they are very long or too many in number. See the conclusions of section 2.2 for further observations.

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did the panellists refer to them in important parts of the decision, although always beside the arguments of a party (see section 2.2). In NAFTA disputes involving questions of general interest amici have been consistently welcomed, but barely mentioned; the opinions of the respondent States appear more important for the decision of a case touching general interests than that of the amici. In ICSID and CAFTA cases the conclusion has been similar (see the cases discussed in section 2.3). However, a detailed study of the effective impact of amicus briefs is difficult to carry out, and this is why the previous table contains no data on this issue: the way in which a judge privately forms his or her opinion on a given case can be inscrutable from an outsider’s perspective. Even in cases where an amicus brief is refused, the possibility remains that a judge could have read it, and even adopted its reasoning, without mentioning it.

In conclusion, even if not all international jurisdictions accept amicus submis-sions, it is clear that a transition is taking place at the organizational level of inter-national adjudication. Rather than focus on the virtues and vices of this transition (an important reflection that still remains to be addressed), this paper has looked at the rules and the cases, attempting to build a dialogue between best and worst prac-tices, with the hope of contributing to the improvement of the procedures toward greater transparency and, eventually, more reliable and effective participation.

TESTING AMICI CURIAE IN INTERNATIONAL LAW: RULES AND PRACTICE

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