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Three most frequently used arbitration rules in the past year98 do not preclude
the use of amicus curiae submissions. ICSID arbitration Rules after their revision in
2006 expressly entitle the tribunal to admit them.99 Tribunals operating under the
UNCITRAL Arbitration Rules found that the rules do not forbid tribunals to admit
amicus curiae submissions;100 similar conclusion could be drawn by tribunals that
conduct proceedings pursuant to the Arbitration Rules of the Arbitration Institute of
the Stockholm Chamber of Commerce.101
As to investment treaties, it seems that the notion that amicus curiae may be beneficial
for the proceedings is slowly beginning to reflect in BITs and multilateral investment
treaties. North American Free Trade Commission confirmed that NAFTA does not
preclude arbitral tribunals from accepting amicus curiae submissions.102 Model BITs
such as the US Model BIT, Canada Model BIT, and Norway Model BIT, expressly
give tribunals the power to accept amicus curiae submissions.103
Examination of these legal instruments thus shows that in general, tribunals are
able to accept amicus curiae submissions, but they are not obligated to do so. Future
tribunals that will decide cases based on any of the above stated instruments will have
discretion to admit amicus curiae submissions; whether it will do so and whether it will
extend amicus curiae ’s possibilities how to participate will depend on each tribunal and
circumstances of the case.
C. The effect of Amicus Curiae Submissions in Investments Cases
Out of all the investment arbitration cases where human rights were raised, only five
also introduced the issue of amicus curiae participation: Aguas del Tunari v Bolivia ,104
98 UNCTAD ‘Recent Trends in IIAS and ISDS’ (February 2015) available at
PublicationsLibrary/webdiaepcb2015d1_en.pdf > 7.
99 Christoph Schreuer and others, The ICSID Convention: A Commentary (3rd edn, CUP 2010) para
44.122.
100 UNCITRAL ‘UNCITRAL Arbitration Rules’ (2010) art 17(1); cf Methanex Corporation v United States
of America (Decision of the Tribunal on Petitions from Third Persons to Intervene as “Amici Curiae” of
15 January 2001) [18], [23]; cf Bastin (n 5) 219-221.
101 SCC ‘Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce’ (2010)
art 19(1) has a very similar wording to art 17(1) of UNCITRAL Arbitration Rules.
102 Statement of the Free Trade Commission on non-disputing party participation of 7 October 2003,
available at > [A.1].
103 US Model BIT (2012), available at
ACIEP%20Meeting.pdf> art 28(3); Canada Model BIT (2004), available a .
com/documents/Canadian2004-FIPA-model-en.pdf> art 39; Norway Model BIT (2007), available at
> art 18(3).
104 Aguas del Tunari SA v Republic of Bolivia (Petition of La Coordinadora Para La Defensa Del Agua Y
Vida, La Federación Departamental Cochabambina De Organizaciones Regantes, Semapa Sur, Friends
of the Earth-Netherlands, Oscar Olivera, Omar Fernandez, Father Luis Sánchez, and Congressman
Jorge Alvarado to the Arbitral Tribunal of 29 August 2002) ICSID case No ARB/02/3.