160 / 610
158
Piero Forresti v South Africa
,
105
InterAgua v Argentina
,
106
Vivendi v Argentina
,
107
and
Biwater v Tanzania.
108
In
Aguas del Tunari v Bolivia
and
Piero Forresti v South Africa
the
tribunals did not get to examine the cases on the merits.
109
The rest of the cases ended
with an award. This section revisits these awards and explores the effect
amicus curiae
participation had on the notion of human rights.
The cases of
InterAgua v Argentina
and
Vivendi v Argentina
present an interesting
subject matter to study. As stated in III.B, the cases related to the same factual situation
and were decided by the same tribunal. In one of the cases,
InterAgua v Argentina
, an
amicus curiae
applied to participate in the proceedings but never filed any submission.
110
In the other case,
Vivendi v Argentina
, several NGOs filed a joined submission.
111
The
Vivendi v Argentina
tribunal noted:
‘[t]he Tribunal also received the benefit of an amicus curiae submission […] that
further developed the relationship of the human rights law to water and to the issues
in this case. That submission pointed out that human rights law recognizes the right to
water and its close linkages with other human rights, including the right to life, health,
housing, and an adequate standard of living. […] Since human rights law provides
a rationale for the crisis measures, they argue that this Tribunal should consider that
rationale in interpreting and applying the provisions of the BITs in question.’
112
However, although the
amicus curiae
contribution was mentioned once more in
the award,
113
tribunal’s analysis of the case was ultimately the same as in
InterAgua
v Argentina
.
114
The conclusions that the tribunal reached, that the requirements for
successful invocation of the state of necessity principle were not met, were the same in
both cases.
115
Prima facie
it may seem that
amicus curiae
therefore had no effect on the
proceedings. However, that is not necessarily the case.
Firstly, it should be remembered that both of the cases were decided by the same
tribunal. The submission that
amici curiae
jointly filed in
Vivendi v Argentina
was not
made public; it is not known precisely what kind of information it provided to the
tribunal. However, the above quoted suggests that the submission did not introduce
105
Piero Foresti, Laura de Carli & Others v the Republic of South Africa
(Petition for Limited Participation
as non-Disputing Parties in term of Articles 41(3), 27, 39, and 35 of the Additional Facility of 17 July
2009) ICSID Case No ARB(AF)/07/01.
106
InterAgua v Argentina
(n 40) [15].
107
Vivendi v Argentina
(n 39) [18].
108
Biwater v Tanzania
(n 44) [56].
109
cf page 7 of this work.
110
InterAgua v Argentina
(n 40) [15].
111
Vivendi v Argentina
(n 39) [18].
112
ibid [256].
113
ibid [262].
114
Compare
InterAgua v Argentina
(n 40) [238] – [243] with
Vivendi v Argentina
(n 39) [259] – [265].
115
ibid.