![Show Menu](styles/mobile-menu.png)
![Page Background](./../common/page-substrates/page0161.jpg)
159
any new arguments or information that had not been public; it merely followed the
line of argumentation used by the state, elaborated on it and further explained it.
It can be presumed that since the factual situation was the same in both cases,
whichever arguments the
Vivendi v Argentina
submission brought forward related to
InterAgua v Argentina
as well. It is not unreasonable to expect that the point of view
that the tribunal was offered through the submission in
Vivendi v Argentina
would
be tacitly considered by the same tribunal when it decided the
InterAgua v Argentina
case, especially when the two awards were rendered on the same day. Having the same
arguments in mind, under the circumstances it would have been surprising if the
tribunal had in fact come to different conclusions in both cases.
116
Secondly, the defense of necessity may be used only under very strict circumstances.
It can be presumed that no matter how well
amicus curiae
had explained its arguments,
factual circumstances of the case would never have justified its application. In another
words, the notion that
amicus curiae
submission did not have any impact on the proceedings
can be rebutted on the basis that the non-party actor was fighting a lost battle.
Assessment of the third case renders an outcome that is more positive for supporters
of
amicus curiae
participation. In
Biwater v Tanzania
its submission influenced the
outcome of the case. The circumstances of the case are as follows: Tanzania started
a program of repairing, updating and expanding water and sewage infrastructure.
117
It concluded a contract with the investor, under which the investor was obliged to
provide water services in a designated area.
118
Tanzania then terminated the contract,
leading the investor to instigate investment arbitration, claiming that its property
was expropriated, and that it was not awarded fair and equitable treatment and full
protection and security.
119
The
Amicus curiae
attempted to justify the termination of the contract. It claimed
that ‘foreign corporations engaged in projects intimately related to human rights […]
have the highest level of responsibility to meet their duties and obligations […].’
120
It then explained that the investor breached its obligations arising from the contract,
which resulted in significant risk to the health of the population.
121
It asserted that the
state had to terminate the contract in order to be able to provide access to water to its
citizens.
122
The line of argumentation leads to the conclusion that it was the investor,
not the state, who was responsible for any loss incurred.
116
This argument can be only made if the submission indeed did not introduce any new information or
arguments, but merely elaborated on what was claimed by the state. If amici curiae presented new infor-
mation and arguments, the tribunal could consider them only in the arbitration where they were raised.
117
Biwater v Tanzania
(n 44) [3].
118
ibid [9].
119
ibid [15] – [16].
120
ibid [380].
121
ibid [377].
122
ibid [387].