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Kawharu, Amokura --- "Public Participation and Transparency in International Investment Arbitration: Suez v Argentina" [2007] NZYbkIntLaw 10; (2007) 4 New Zealand Yearbook of International Law 159


Amokura Kawharu[∗]

1. Introduction

Suez, Sociedad General de Aguas de Barcelona S.A. and InterAgua Servicios Integrales de Agua S.A. v The Argentine Republic (Suez v Argentina)[1] is one of several arbitration proceedings brought against the Argentine Republic currently pending resolution at the International Centre for the Settlement of Investment Disputes (ICSID). Three of these cases, including Suez v Argentina, involve claims by the holders of concessions to provide urban water services in various parts of Argentina, alleging losses resulting from the country’s severe economic and financial crisis that began in 1999 (and the Argentine government’s response to it).[2] This Note discusses a procedural order issued by the Suez v Argentina tribunal relating to a petition for participation as amicus curiae,[3] in the context of other recent developments on such participation taking place both within ICSID and in the wider international investment arbitration scene.

II. The Procedural Order in Suez v Argentina

A. Background to the Suez v Argentina case

The Suez v Argentina dispute involves claims brought against the Argentine Republic by the three major non-Argentine shareholders in Aguas Provinciales de Santa Fe S.A. (APSF): Suez (a French company holding 51.69% of APSF’s shares), Sociedad General de Aguas de Barcelona S.A. (Spanish, 10.89% shareholding), and InterAguas Servicios Integrales del Agua S.A. (Spanish, 14.92% shareholding) (together, the Claimants). APSF was formed in 1995 as the vehicle to operate a 30-year concession to provide water distribution and waste-water services in the Argentine province of Santa Fe. The concession was granted as part of a privatisation program conducted by the federal and provincial governments of Argentina during the 1990s, when a range of State owned assets and functions were transferred to mainly foreign investors. During the same period, Argentina adopted certain measures to encourage foreign investment, including the Convertibility Law, which linked the value of the Argentine peso to the United States (US) dollar. It also concluded a host of bilateral investment treaties (BITs) with various countries to provide (on a reciprocal basis) protection and security for foreign investors.

As Argentina’s most recent economic and financial crisis emerged in 1999, the Argentine government enacted several emergency laws intended to prevent the situation from worsening. In 2002 it de-linked the peso from the US dollar, which resulted in the peso’s sudden and significant depreciation. According to the Claimants, this and other measures adopted by the government to deal with the crisis adversely affected the value of their investment in APSF, in breach of the government’s commitments made to them when APSF was granted its concession. Negotiations between the Claimants and the government failed to resolve matters, so the Claimants submitted their dispute to ICSID for resolution by arbitration, in accordance with the dispute settlement provisions of the 1991 France – Argentina BIT and the 1991 Spain – Argentina BIT, on 17 April 2003.[4]

B. The Procedural Order in Response to a Petition for Participation as Amicus Curiae

Three years later, on 17 March 2006, the Suez v Argentina tribunal responded to a petition made by an Argentine non-governmental organisation (NGO), the Fundacion para el Desarollo Sustenable (the Foundation), and three individuals associated with the Foundation, to participate in the arbitral proceedings.[5] Although the tribunal called its order an “Order in Response to a Petition for Participation as Amicus Curiae”, the petition (as interpreted by the tribunal) included three separate requests: only the second request specifically related to amicus curiae participation; the other two were aimed at improving the transparency of the proceedings. In dealing with the petition, the tribunal closely followed the terms of an order given in the Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal S.A. v The Argentine Republic (Suez v Argentina (Buenos Aires))[6] dispute, as noted below. The Claimants rejected all three requests, while Argentina approved of them.

1. Access to the Hearings and the Ability to Make Oral Submissions

In their first request, the petitioners sought access to the arbitral hearings in order to make oral submissions to the tribunal, and also sought more generally to have the hearings opened to the public. Under ICSID Arbitration Rule 32(2), the tribunal had the authority to admit persons other than the parties (and their counsel and witnesses) to attend hearings, but only with the consent of the parties.[7] The tribunal had no other inherent power to admit non-parties, and no power to contradict a clear directive in the Rules (such as that given in Rule 32(2)).[8] Given that the Claimants had refused to consent to the attendance by the petitioners, the tribunal had no choice but to apply the Rule and decline the request.[9]

Amended ICSID Arbitration Rules came into effect shortly after the tribunal’s order, on 10 April 2006. The amended Rules will apply to proceedings which the parties consent to submit to ICSID arbitration after this date (and the ‘old’ Rules will continue to apply to proceedings where consent to arbitrate was given before 10 April 2006).[10] On the issue of attendance by non-parties at hearings, the amended Rules modify only slightly the approach to be taken. Under the amended Rule 32(2), a tribunal may allow other persons besides the parties to attend hearings, unless a party objects. In other words, rather than the tribunal having to obtain consent from each party, the onus shifts to the party to positively object.

2. The Submission of Amicus Curiae Briefs

The second request considered by the tribunal concerned the request by the petitioners to submit amicus curiae briefs. Participation by an amicus curiae in the form of written submissions or briefs is recognised by various legal systems, and more recently, in proceedings before different international tribunals.[11] The purpose of such participation is ostensibly to offer the tribunal the non-party’s particular perspectives, arguments or expertise on the matters in dispute, which may be different to those offered by the parties. Given the lack of any guidance in the ICSID Convention and Arbitration Rules on the admissibility of amicus submissions (until the recent amendments, see below), the tribunal asked itself first, whether it had the power to accept amicus submissions, and second, (if the power exists) how the power should be exercised and on what conditions.

Article 44 of the ICSID Convention gives the tribunal a residual discretion to determine matters of procedure which are not covered by the Rules or any agreement between the parties. The tribunal ruled that this provision enabled it to accept amicus submissions, and cited the decision of the North American Free Trade Agreement (NAFTA) Chapter 11 tribunal in Methanex v United States (Methanex)[12] to admit amicus submissions as support for its conclusion on this point.[13] As in Methanex, the tribunal in Suez v Argentina held that the acceptance of amicus submissions was not equivalent to admitting the submitter as a party to the dispute, and would not affect the substantive rights of the parties.[14] The tribunal doubted whether the acceptance of amicus briefs would place a significant burden on the parties and the tribunal,[15] although there is obviously some extra burden, since the parties and the tribunal will have further submissions to consider and respond to. Finally, the tribunal stated that the participation of civil society representatives through the submission of amicus briefs would improve public perceptions of ICSID arbitration.[16] Interestingly, the consequences for international investment arbitration if concerns over the cloudiness of the process are not addressed were put much more strongly by the tribunal in Methanex, which notes that a refusal to accept amicus briefs could do positive harm to its reputation and legitimacy.[17] This issue is discussed more fully below.

The tribunal then turned to the second question, and listed three basic criteria relevant to the exercise of the power to accept amicus submissions: the appropriateness of the subject matter of the case; the suitability of a given non-party to act as amicus curiae in that case; and the procedure by which the amicus submission is made and considered.[18] The tribunal recognised that the case was one in which the subject matter involved a high degree of public interest, and which was therefore appropriate for the submission of amicus curiae briefs under the first of its criteria. The public interest element arose due to the nature of APSF’s investment, being a concession to provide water services which served a basic need of several hundred thousand people.

The tribunal had more difficulty, however, in accepting the suitability of the petitioners to act as amici curiae due to a lack of information about their expertise, experience and independence. In this respect, the tribunal determined that petitioners seeking leave to make an amicus submission should include in their petition the following detailed information:[19]

• The identity and background of the petitioner, the nature of its membership if it is an organisation, and the nature of its relationships, if any, to the parties in dispute;

• The nature of the petitioner’s interest in the case;

• Whether the petitioner has received financial or other material support from any of the parties or from any person connected with the parties in this case; and

• The reasons why the tribunal should accept the petitioner’s amicus curiae brief.

The requirement for information about the independence of petitioners is directed at the integrity of the arbitration process where amicus submissions are received, since the premise of amicus submissions is that they are provided to assist the court or tribunal by parties who are not associated with either disputant. As one commentator described the role of the amicus curiae, “[t]he friend of the court should not be the friend of one of the parties”.[20] The petitioners in Suez v Argentina stated in their petition that they were a “civic organisation concerned with the management of sustainable development and with policies affecting environmental and human needs”.[21] In the tribunal’s view, this was insufficiently comprehensive to disclose what (if any) interest the petitioners had in the proceedings, or to establish their independence from the parties. Statements to the effect that they had not received financial support from either party, that the Foundation was supported financially by members’ contributions and by people interested in its aims, and that the individual petitioners supported themselves financially from the exercise of their professions, were apparently not adequate to enable the tribunal to determine whether the petitioners were “truly independent” of the parties.[22] The tribunal also considered that the petitioners had failed to link their experience with the issues arising in the case in a manner that would assist the tribunal in its decision making.[23] It therefore declined to grant the petitioners permission to submit amicus curiae briefs, although it did state that it would be prepared to consider a second request at a later time if further supporting information was provided.[24]

The tribunal’s order in Suez v Argentina is only the second order by an ICSID tribunal that contemplates the admissibility of amicus curiae briefs. In May 2005, the ICSID tribunal hearing the Suez v Argentina (Buenos Aires) dispute (comprised of the same three members as the tribunal in Suez v Argentina) dealt with similar petitions filed by five NGOs to present legal arguments as amici curiae. As in Suez v Argentina, the Suez v Argentina (Buenos Aires) case concerns claims brought against the Argentine government by the holders of a concession to provide water services – this time, in Argentina’s Buenos Aires province. In Suez v Argentina (Buenos Aires), the tribunal deferred the petitioners’ requests to participate as amici curiae, since the parties had already completed their arguments on jurisdiction and it was thought that further argument (in the form of amicus curiae submissions) would not assist the tribunal in determining whether it had jurisdiction or not.[25] However, the tribunal left open the possibility that the petitioners could seek leave to submit amicus briefs at the merits stage, by suggesting certain basic criteria according to which third parties could apply for such leave when it was more appropriate to do so. Those same criteria were later applied and elaborated upon in the second case – Suez v Argentina, as above.

The strict application of the criteria developed in Suez v Argentina (Buenos Aires) by the tribunal in Suez v Argentina may have tempered expectations raised by the former decision that non-party participation in ICSID arbitrations would become routine. This said, the Suez v Argentina decision affirms the position reached by the tribunal in Suez v Argentina (Buenos Aires) that amicus curiae submissions are in principle permitted by the ‘old’ ICSID Arbitration Rules, and helps to clarify how questions of non-party participation may be dealt with under these Rules in the future. Prior to these decisions, there had been some doubt as to the admissibility of amicus briefs. For instance, the tribunal in another ICSID arbitration, Aguas del Tunari S.A. v Republic of Bolivia, concluded in 2003 that it lacked the authority to admit would-be amicus curiae as actual parties to ICSID proceedings.[26]

The recently amended ICSID Arbitration Rules now include express provisions empowering tribunals to allow non-parties to file written amicus submissions. The position of the would-be amicus curiae is thus significantly improved under the amended Rules, since under the old Rules the tribunal only exercises a residual power, the scope and exercise of which may continue to be the subject of challenge (there is no system of binding precedent in international arbitration, meaning future disputants may ‘have a go’ and argue that amicus submissions are not permitted by the old Rules despite the growing body of case law to the contrary).[27] Under the new Rule 37(2), which regulates the admissibility of amicus briefs, tribunals are required to consider various factors when determining whether or not to allow their filing. There is a strong similarity between these factors and the criteria listed by the tribunals in Suez v Argentina and Suez v Argentina (Buenos Aires), especially the second criterion dealing with the suitability of a given non-party to act as amicus curiae, which was the subject of much discussion by the tribunal in Suez v Argentina in reaching its decision. Suez v Argentina, therefore, continues to be relevant to the interpretation of the new Rules also.

3. Access to Documents and Information

In the third request, the petitioners sought access to information related to the proceedings, which could have included the parties’ submissions, transcripts of hearings, witness statements and the like. The request was closely related to the second request to submit amicus briefs, since access to such documentation would assist in the preparation of the briefs. The tribunal indicated that the petitioners would need to provide the sorts of detailed information about themselves required to meet the criteria for the submission of amicus briefs (above) before it would consider whether access to documents could be granted. Given the tribunal’s decision refusing the petitioners leave to submit amicus briefs for a lack of information, it was not surprising that the tribunal also declined the petitioners’ final request.[28] On the other hand, providing access to relevant information from the proceedings may have assisted the petitioners to revise their petition in order to meet the tribunal’s criteria for the submission of amicus briefs, so in this respect the reasoning is circular. If the tribunal was minded to provide access to documentation to allow the petitioners to re-work their petitions, or if in fact the petitioners had satisfied the criteria for the submission of amicus briefs, then it would have needed to develop conditions to protect any sensitive information of either party, and to prevent the on-disclosure of the information to others. Since the tribunal was not so minded, it made no such attempt, and the matter is left to a later tribunal to consider.

III. Comment

The demands for greater rights of non-party participation and transparency have become two of the most pressing current issues in investment arbitration. There are several possible explanations for this development. There has been a significant increase in the level of investment arbitration activity over recent years (itself due to factors such as the proliferation of BITs),[29] including the increased involvement of industrialised countries, with well organised and resourced interest groups, as respondent States in investment arbitration proceedings. In addition, the availability of information concerning government activity through different media sources has dramatically increased, particularly with the development of the internet. As a result, informed citizens have become more demanding of their governments in terms of their expectations that governments provide credible explanations of their dealings with investors.[30]

Investment arbitrations are conducted using the rules and procedures of private arbitrations, where confidentiality is regarded as a key advantage over litigation through the (public) court system.[31] However, investment arbitrations are very different in substance to private dispute resolution as they involve a review of government conduct which is being challenged by a foreign investor. The subject matter of a number of recent investment disputes has attracted strong interest from the wider public,[32] and highlighted the lack of formal mechanisms under the various arbitration rules for interested citizens and NGOs to participate in them or to access information about the proceedings. One of the main criticisms of the opacity of investment arbitration proceedings is that it is “at odds with the principles of open government” and public accountability.[33] For example, secret hearings give rise to suspicions about possible settlements governments may make with foreign investors, the terms of which cannot be subjected to public scrutiny. If tribunals insisted on maintaining the confidentiality of the process in investment arbitrations, then the point may be reached where it is no longer acceptable for governments to arbitrate investment disputes.[34] Conversely, as noted above, greater openness in proceedings will improve the public’s understanding of investment arbitration and enhance its acceptance as a legal process for dealing with investment disputes.

In response to growing pressure, various initiatives aimed at enhancing public participation and transparency in investment arbitration have developed over the past eight or so years on an ad hoc basis, through decisions including Suez v Argentina and Methanex. In Methanex,[35] Methanex Corporation (a Canadian exporter of methanol) unsuccessfully challenged a Californian ban on the use of a methanol-based gasoline additive. Methanex alleged that the ban, imposed to protect the environment and human health, violated investor protections provided to it under the NAFTA. The tribunal accepted the undoubted public interest in the case, and for the first time in a NAFTA dispute, allowed participation by four amicus curiae.[36] It dismissed the argument that citizens and NGOs should simply convey their views to their governments, who if not a party to the dispute, could nevertheless present submissions under article 1128 of the NAFTA. Its approach to amicus submissions was followed by the later NAFTA tribunal in United Parcel Service of America Inc v Canada.[37]

These decisions are consistent with similar ad hoc developments which have taken place in inter-State dispute settlement within the World Trade Organisation (WTO). In an early and high profile WTO case, US – Shrimp,[38] US regulations to protect rare turtle species were held to violate the General Agreement on Tariffs and Trade. The WTO Appellate Body accepted the strong public interest in the case, and affirmed that dispute settlement panels have a discretion to accept amicus curiae submissions from interested non-parties.[39] Critics argued that there was no basis for the decision in the relevant WTO rules, although the reasoning was applied again and expanded upon in US – Lead,[40] and is now generally accepted as the current position under those rules.[41] NGOs have often submitted amicus briefs in subsequent cases.[42] In another recent development, hearings of the compliance panel in the EC – Beef Hormones[43] dispute have been broadcast via closed circuit television to an audience at the WTO’s Geneva headquarters. This long-running and controversial dispute involves a complaint by the US and Canada against the European Communities’ ban on hormone-treated meat, and the public clearly has a legitimate interest in the proceedings. After some early reluctance, the opening of the hearings was made at the request of the parties. However, not all third party States involved in the proceedings joined in the request, and hearings involving them remained behind closed doors. Tribunals dealing with investment disputes (including in Suez v Argentina) have referred to WTO practice as support for their positions on amicus curiae. This said, a number of mostly developing countries have resisted reform proposals to permanently open up panel hearings and define an express framework for amicus curiae participation (mainly due to concerns over resource constraints and implications for the government to government nature of WTO dispute settlement).[44]

In the investment arbitration context, there is a noticeable trend to formalise initiatives to improve transparency and participation through measures such as the amendments to the ICSID Arbitration Rules, and in relation to the NAFTA, notes of interpretation[45] and guidelines[46] issued by the NAFTA parties to promote open hearings and standardise procedures for the filing of amicus briefs. Some States now also include express transparency obligations in their BITs,[47] although the practice is relatively recent, and is not uniform. There are also a number of other transparency issues that are yet to be resolved. While the publication of awards is now commonplace,[48] the holding of open hearings and the provision of documents and information about proceedings is generally subject to the further consent or agreement of the parties. This limitation was applied in Suez v Argentina, and the position has not changed under the amended ICSID Arbitration Rules. In non-ICSID investment arbitrations (for instance, under the UNCITRAL Arbitration Rules), the confidentiality of proceedings is generally assumed. The extent to which this assumption is supported by a legal obligation of confidence varies. A public interest exception appears to be emerging in some jurisdictions,[49] although there is as yet no consensus as to how trade secrets or other business sensitive information ought to be defined and protected in the investment dispute context. The UNCITRAL working group is currently considering amendments to the UNCITRAL Rules, and is under some pressure from NGOs to formulate special rules to promote transparency in investment arbitration proceedings.[50]

More has been achieved in terms of engagement with interested non-parties, and this is also illustrated by the findings in Suez v Argentina. Then again, actual experience of amicus participation is still limited, and it raises several complex questions that remain unanswered. For instance, is the effectiveness of dispute resolution by arbitration undermined by the potential delays and added cost burdens on the parties? How should tribunals deal with high numbers of requests to participate, and are arbitrators really the most appropriate people to determine who should be entitled to participate and hold governments to account?[51] Other procedural issues such as the ability of the parties to cross-examine evidence included in amicus briefs, which is not clear under current rules,[52] should also be addressed in a consistent manner. Given that rights of participation are now more secure, the focus of attention ought to shift to address concerns about their implementation.

[∗] Lecturer, Faculty of Law, University of Auckland.

[1] Suez, Sociedad General de Aguas de Barcelona SA and InterAgua Servicios Integrales de Agua SA v The Argentine Republic, ICSID Case No ARB/03/17 (‘Suez v Argentina). The members of the arbitral tribunal are Professor Jeswald W Salacuse (President), Professor Gabrielle Kaufmann-Kohler and Professor Pedro Nikken.

[2] The other two cases are Aguas Cordobesas SA, Suez, and Sociedad General de Aguas de Barcelona SA v The Argentine Republic, ICSID Case No ARB/03/18 and Suez, Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA v The Argentine Republic ICSID Case No ARB/03/19.

[3] Amicus Curiae or ‘a friend of the court’ is a person, not a party to the litigation, who volunteers or is invited by the court to give advice upon some matter pending before it.

[4] The tribunal has since determined that it has jurisdiction under these BITs to hear the dispute: Suez v Argentina, ICSID Case No ARB/03/17, Decision on Jurisdiction, 16 May 2006.

[5] Suez v Argentina, ICSID Case No ARB/03/17, Order in Response to a Petition for Participation as Amicus Curiae, 17 March 2006 (‘Suez v Argentina, Amicus Curiae Order’).

[6] Suez, Sociedad General de Aguas de Barcelona SA, and Vivendi Universal SA v The Argentine Republic, ICSID Case No ARB/03/19 (‘Suez v Argentina (Buenos Aires)’).

[7] International Centre for Settlement of Investment Disputes, ‘Rules of Procedure for Arbitration Proceedings (Arbitration Rules)’, online: < basicdoc/partF.htm> (last accessed on 30 October 2006) (‘the Rules’).

[8] Suez v Argentina, Amicus Curiae Order, above n 5, para 8.

[9] Ibid paras 7–8.

[10] Article 44 of the ICSID Convention provides that, unless the parties to a dispute otherwise agree, ICSID arbitrations are conducted in accordance with the Arbitration Rules in effect as at the date the parties consent to ICSID arbitration: Convention on the Settlement of Investment Disputes, opened for signature 18 March 1965 (entered into force 14 October 1966) (‘ICSID Convention’).

[11] See the tribunal’s discussion of the role of amicus curiae in Suez v Argentina, Amicus Curiae Order, above n 5 para 9.

[12] US Department of State Documents, ‘Decision of the Tribunal on Petitions from Third Parties to Intervene as “Amici Curiae” (15 January 2001)’, online: < documents/organization/6039.pdf> (last accessed on 30 October 2006) (‘Methanex’). In accordance with Chapter 11 of the NAFTA, Methanex was decided under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, which include a similar provision to article 44.

[13] Suez v Argentina, Amicus Curiae Order, above n 5, para 14.

[14] The Methanex tribunal determined that article 15 of the UNCITRAL Rules, which requires equal treatment of the parties, did not preclude the admission of amicus briefs: above n 12. The claimant had argued unsuccessfully that participation via the submission of an amicus brief was a substantive right that could not be granted by the tribunal in the exercise of its residual powers to determine matters of procedure.

[15] Suez v Argentina, Amicus Curiae Order, above n 5, para 15.

[16] Ibid para 21.

[17] Methanex, above n 12, para 49.

[18] Suez v Argentina, Amicus Curiae Order, above n 5, para 17.

[19] Ibid para 24.

[20] Alexis Mourre, ‘Are Amici Curiae the Proper Response to the Public’s Concern on Transparency in Investment Arbitration?’ (2006) 5 Law and Practice of International Courts and Tribunals 257, 269.

[21] Suez v Argentina, Amicus Curiae Order, above n 5, para 31.

[22] Ibid para 32.

[23] Ibid para 33.

[24] Ibid para 34.

[25] Suez v Argentina (Buenos Aires), Order in Response to a Petition for Transparency and Participation as Amicus Curiae, 19 May 2005, para 28.

[26] Aguas del Tunari SA v Republic of Bolivia, ICSID Case No ARB/02/3.

[27] In theory the parties could still agree to exclude the express power of tribunals to admit amicus briefs granted under the amended Rules, as the Rules apply subject to the parties’ agreement: ICSID Convention, art 44. Such an agreement seems unlikely given that the trend is to increase participation in investment arbitrations, as discussed more fully below.

[28] Suez v Argentina, Amicus Curiae Order, above n 5, para 38.

[29] See Barton Legum, ‘Trends and Challenges in Investor-State Arbitration’ (2003) 19(2) Arbitration International 143.

[30] See Meg Kinnear, ‘Transparency and Third Party Participation in Investor-State Dispute Settlement’ (Paper presented at the ICSID, OECD and UNCTAD Symposium “Making the Most of International Investment Agreements: A Common Agenda”, Paris, 12 December 2005) para B.

[31] For example, see the discussion in Alan Redfern et al, Law and Practice of International Commercial Arbitration (Sweet & Maxwell Publishers, 4th ed, 2004) paras 1.53-1.60.

[32] By their nature, all investment arbitrations involve a general element of public interest, since any compensation payable to investor claimants is funded by taxpayers. Some disputes have attracted more attention than others because they deal with sensitive issues such as public health or the environment. For example, the NAFTA disputes: Ethyl Corp v Canada, Preliminary Award on Jurisdiction (24 June 1998), online: <> (last accessed on 30 October 2006); and Metalclad Corporation v Mexico, Final Award (30 August 2000), online: <> (last accessed on 30 October 2006); both involved successful claims brought by investors against Canada and Mexico respectively for losses resulting from the adoption of environmental protection initiatives.

[33] David J A Cairns, ‘Confidentiality and State Party Arbitrations’ [2002] New Zealand Law Journal 125, 126.

[34] See Mourre, above n 20, 266, where it is argued that unless the issue of public accountability is addressed, States may ‘step back’ from arbitration and force investors to have their governments espouse rights of diplomatic protection. If such an eventuality did arise, it would be a large step backwards in the resolution of investment disputes from the formal, legal mechanism of arbitration.

[35] Methanex, above n 12.

[36] These were the International Institute for Sustainable Development, Communities for a Better Environment, The Earth Island Institute and the Center for International Environmental Law.

[37] United Parcel Service of America Inc v Canada (‘UPS case’): Foreign Affairs and International Trade Canada, ‘Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae’ (17 October 2001), online: < tna-nac/disp/parcel_archive-en.asp> (last accessed on 30 October 2006). For a more detailed review of the Methanex and UPS cases, see Loukas Mistelis, ‘Confidentiality and Third Party Participation: UPS v Canada and Methanex Corporation v United States’ (2005) 21(2) Arbitration International 211.

[38] WTO Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998 (‘US – Shrimp’).

[39] Ibid.

[40] WTO Appellate Body Report, United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/AB/R, adopted 7 June 2000 (‘US – Lead’).

[41] There is extensive literature available on the role of amicus curiae in WTO disputes resolution. For an overview, see B Stern, ‘The Emergence of Non-State Actors in International Commercial Disputes Through WTO Appellate Body Case-Law’ in Giorgio Sacerdoti et al (eds) The WTO at Ten: The Contribution of the WTO Dispute Settlement System (Cambridge University Press, 2006) 372.

[42] For example, in defence of Brazil’s ban on the import of re-treaded tyres in Brazil – Measures Affecting Imports of Retreaded Tyres (WT/DS332), although the panel hearing of this dispute has yet to decide whether or not to consider them.

[43] United States / Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320 and WT/DS321 (‘EC – Beef Hormones’). Few actually registered to attend the broadcast hearings, held in September 2005 and September and October 2006. Those who did attend were mainly trade diplomats, together with a small number of journalists, academics and NGO representatives.

[44] See documents and minutes of meetings of the Special Sessions of the World Trade Organisation, Dispute Settlement Body, online: < dispu_e/dispu_e.htm#negotiations> (last accessed on 30 October 2006), and in particular, the contributions of the European Communities (TN/DS/W/1) and the United States (TN/DS/W/13, 46 and 79) and the responses to them in the minutes of the meeting held on 6 November 2002 (TN/DS/M/4). Some WTO members, including the European Communities and the United States, routinely disclose their submissions to the public, whether or not hearings are opened to the public as well.

[45] Foreign Affairs and International Trade Canada, ‘Notes of Interpretation of Certain Chapter 11 Provisions’, online: <> (last accessed on 30 October 2006).

[46] Foreign Affairs and International Trade Canada, ‘Statement of the Free Trade Commission on non-disputing party participation’, online: <> (last accessed on 30 October 2006). The guidelines were recently applied in Glamis Gold Ltd v United States: US Department of State Documents, ‘Decision on Application and submission by Quechan Indian Nation’, online: <> (last accessed on 30 October 2006).

[47] For example, the US–Singapore BIT (2003) and the US–Chile BIT (2003). Also see article 29 of the ‘US Model BIT 2004’, Office of the United States Trade Representative, online: <

file847_6897.pdf?ht=)> (last accessed on 30 October 2006).

[48] The amended ICSID Arbitration Rules now require publication at least of the legal reasoning of tribunals (Rule 48), which will improve consistency in the findings of different tribunals.

[49] See Andrew Tweeddale, ‘Confidentiality in Arbitration and the Public Interest Exception’ (2005) 21(1) Arbitration International 59.

[50] See statements issued by the International Institute for Sustainable Development, ‘Revision of the UNCITRAL Arbitration Rules’, online: < investment_uncitral_rules_rrevision.pdf> (last accessed on 30 October 2006); and Center for International Environmental Law, ‘UNCITRAL Arbitrations Involving State as a Party - Transparency, Public Participation and Accountability’, online: < UNCITRAL_Announce_18Sep06.html> (last accessed on 30 October 2006).

[51] See Mourre, above n 20, 267, where it is argued that tribunals should decide whether petitioners in any case do, in fact, represent the public interest that they purport to represent. However, the tribunals are not elected by the public, but are appointed by the parties to resolve legal disputes between those parties. Tribunals have no accountability or responsibilities to the public when deciding who should represent them, and are not appointed for this purpose. That said, it is difficult to see who else could have this role.

[52] For instance, under the amended ICSID Arbitration Rule 37, the parties have an opportunity to present to the tribunal their “observations” on any amicus submission, which is less than a full right to cross-examine.

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