157 / 610
155
in the BIT;
84
the investor was therefore ultimately successful in its claim. In
Veteran
Petroleum Limited v Russia
,
Yukos Universal Limited v Russia
, and
Hulley Enterprises
Limited v Russia
, the tribunal stated that the harassment that claimants complained
about damaged their investment.
85
The tribunal than ruled that Russia breached
expropriation provisions of the BIT and as a breach was already found, it did not
proceed to examine the fair and equitable treatment provisions,
86
under which breach
of human rights would fall.
87
V.
Amicus Curiae
as the Answer?
In order to examine whether
amicus curiae
is able to promote protection of human
rights in international investment arbitration, one must first define the meaning
of the phrase, take into account who can act as
amicus curiae
, consider the reasons
for its participation, and the general benefits it brings to the proceedings; these
questions are answered in section V.A. Section V.B deals with admissibility of
amicus
curiae
submissions. Sections V.C examines cases where
amicus curiae
was allowed to
participate and its effect on tribunals’ rulings. Section V.D then attempts to answer the
question whether
amicus curiae
can promote human rights in international investment
arbitration.
A. Amicus Curiae Defined and Described
The term
amicus curiae
comes from Latin expression that translates as a ‘friend of
court’.
88
It describes a person who is not a party to the law suit, but has a strong interest
in the subject matter.
89
In another words, although the court or tribunal does not decide
on rights and obligations that belong to the
amicus curiae
, the
amicus curiae
is not
indifferent to the outcome of the case and for this reasons wishes to file a submission in
84
HeshamTalaat M Al-Warraq v Republic of Indonesia
(Final Award of 15 December 2014) UNCITRAL [621].
85
Veteran Petroleum Limited (Cyprus) v Russian Federation
(Final Award of 18 July 2014) PCA Case No.
AA 228 [820];
Yukos Universal Limited (Isle of Man) v Russian Federation
(Final Award of 18 July 2014)
PCA Case No. AA 227 [820];
Hulley Enterprises Limited (Cyprus) v Russian Federation
(Final Award of
18 July 2014) PCA Case No. AA 226 [820].
86
Veteran Petroleum Limited (Cyprus) v the Russian Federation
(Final Award of 18 July 2014) PCA Case No
AA 228 [1585];
Yukos Universal Limited (Isle of Man) v the Russian Federation
(Final Award of 18 July
2014) PCA Case No AA 227 [1585];
Hulley Enterprises Limited (Cyprus) v the Russian Federation
(Final
Award of 18 July 2014) PCA Case No AA 226 [1585].
87
Veteran Petroleum Limited (Cyprus) v the Russian Federation
(Final Award of 18 July 2014) PCA Case No
AA 228 [1484];
Yukos Universal Limited (Isle of Man) v the Russian Federation
(Final Award of 18 July
2014) PCA Case No AA 227 [1484];
Hulley Enterprises Limited (Cyprus) v the Russian Federation
(Final
Award of 18 July 2014) PCA Case No AA 226 [1484].
88
Gomez (n 5) 516.
89
Reiner and Schreuer (n 16) 90.