158 / 610
156
the proceedings.
Amicus curiae
may be
inter alia
an NGO, representatives of an ethnic
group,
90
professional associations, trade unions, private companies, or scholars.
91
Academics have described several reasons how the participation of an
amicus curiae
may be beneficial for court or arbitral proceedings. As this work concerns only arbitral
proceedings, it will focus on the positive roles an
amicus curiae
can play therein.
Firstly,
amicus curiae
contributes to the transparency of proceedings.
92
It can
‘promote a general interest in procedural openness and ensure that the broader public
does not perceive the arbitration process as “secretive”’.
93
Amicus’s
participation can
spark a public debate on the topic.
94
Secondly,
amicus curiae
may help the court or tribunal to decide the case in an
informed manner that is responsive to a range of interests.
95
This feature can be
explained by the simple saying that ‘two heads are better than one’. Arbitral tribunals
have only limited capacity to conduct their own research and they may be confronted
with issues that are outside their area of expertise.
96
The states have only limited
resources to defend themselves. An entity that specializes in the given issue may have
access to better data than the parties or the tribunal and may be able to shed a new
light on the topic. Even if it presents the same arguments as one of the parties,
amicus
curiae
may structure them in another way or explain them in different words, thus
helping the tribunal to understand them better.
It should be noted that in connection to the advantages of
amicus curiae
, scholars
often describe its negative effects on arbitral proceedings. Above all,
amicus curiae
is feared to increase the costs of proceedings, cause their delay.
97
As this work does
not aspire to assess the overall advantages and disadvantages of non-party actors, the
disadvantages will not be elaborated on.
B. Admission of
Amicus Curiae
into Proceedings
There are no universal rules regarding the competence of arbitral tribunals to
accept
amicus curiae
submissions. The matter is governed by respective provisions of
investment treaties and procedural rules that are used in each case.
90
Patrick Dumberry and Gabrielle Dumas-Aubin, ‘When and How Allegations of Human Rights
Violations can be Raised in Investor-State Arbitration’ (2012) 13 J World Investment &Trade 349, 370.
91
Gomez (n 5) 556.
92
Bastin (n 5) 223.
93
ibid, citing E Levine, ‘Amicus Curiae in International Investment Arbitration: The Implications of an
Increase in Third-Party Participation’ (2011) 29 Berkeley JIL 200, 217.
94
Gomez (n 5) 547.
95
J Anthony Van Duzer, ‘Enhancing the Procedural Legitimacy of Investor – State Arbitration through
Transparency and Amicus Curiae Participation’ (2007) 52 McGill LJ 681, 685.
96
Ishikawa (n 5) 402-403.
97
Bastin (n 5) 225; Ishikawa (n 5) 398.