162 / 610
160
The tribunal has stated that the
amici curiae
approached the issues ‘with interests,
expertise and perspectives that have been demonstrated to materially differ from those
of the two contending parties, and as such have provided a useful contribution to
these proceedings.’
123
The tribunal ultimately decided that Tanzania has breached its
obligations, but did not order the state to pay damages, as the damage the investor
has allegedly sustained was not contributable to Tanzania.
124
The need to comply with
human rights obligation did not excuse the breach of BIT obligations committed by
the state. However, it helped to break the chain that linked this breach to the damaged
that was caused.
125
The tribunal did not refer to
amicus curie
submission in the final part of its analysis and
it did not in any way hint that it reached its conclusions solely based on the submission.
However, given that the tribunal repeatedly pronounced the submission ‘useful’,
126
it
may be assumed that the submission contributed to the outcome of the case.
Biwater v Tanzania
therefore confirms that as discussed in section V.A, non-party
actors may contribute to the proceedings by bringing new arguments to the table and
by better explaining arguments that were already put forward.
D.
Amicus Curiae
as the Key to Promoting Human Rights in International
Investment Arbitration?
Previous sections revealed several important pieces necessary for answering the
question whether
amicus curiae
can help to promote human rights in international
investment arbitration. Firstly, the global level of protection of human rights is
threatened only in those instances where states attempt to use them in their defensive
arguments.
Secondly, states have mostly failed in these cases in the past for one of two reasons:
either they attempted to invoke the state of necessity, which can be successful only
under very strict conditions (and although they could have,
127
BITs did not ease those
conditions); or states are unwilling or unable develop the argument.
Thirdly,
amicus curiae
may introduce new arguments and perspectives to the proceedings
and it may also increase transparency and ignite a public debate on the topic.
A combination of these elements leads to the conclusion that
amicus curiae
can under
certain factual circumstances indeed help to promote human rights in international
investment arbitration. If the states are unable or unwilling to pursue the argument,
amicus curiae
can help them.
Biwater v Tanzania
shows that
amicus curiae
is capable of
bringing a meaningful contribution to the case and introduce additional arguments.
Instead of arguing the state of necessity, as Argentina did in other cases,
amicus curiae
123
ibid [359].
124
ibid [805].
125
cf Marella (n 39) 358.
126
Biwater v Tanzania
(n 44) [359], [392].
127
Cf
Sempra v Argentina
(n 38) [375]
in fine
.