The Participation of an Amicus Curiae in Investment Treaty Arbitration. How does the European Commission Function in this Role?


Master's Thesis, 2018
53 Pages, Grade: 1,3

Excerpt

Table of Contents

1. Introduction

2. The rationale behind third-party participation in international investment arbitration – the justification for an amicus curiae
2.1. A need for more transparency?
2.2. Are amicus submissions suitable to address transparency and democratic issues in international investment arbitration?
2.2.1. Positive outcomes
2.2.2. Legitimate concerns
2.2.3. Critical evaluation

3. The concept of the amicus curiae in international investment arbitration
3.1. General remarks on the concept of amicus curiae
3.2. The concept of the amicus curiae in different arbitration regimes
3.2.1. ICSID
3.2.2. UNCITRAL
3.2.3. Recent developments: CETA
3.3. The development of the amicus curiae

4. The European Commission as an amicus
4.1. The Role of the European Commission within the European Union
4.2. Investment law in the context of the European Union
4.3. The Commission’s impact on arbitration: concrete evaluation
4.3.1 Requirements for the participation as amicus
4.3.2 interests pursued by the Commission
4.3.3 The Judgement in Achmea B.V. v. The Slovak Republic
4.4 Conclusion

Bibliography

1. Introduction

Within our global economy, international investments are a cornerstone. From the outset, international investors depended on reliable remedies, to solve alleged breaches of investor rights. The development started with the “gun boat diplomacy” and “Calvo Doctrine”. In the modern era, the favoured dispute resolution mechanism has been investment arbitration, a distinct form of international commercial arbitration, which has increased dramatically.1 Today, investors usually submit claims after consultations and negotiations with the host state for resolution under the auspices of an arbitral institution, such as the International Centre for the Settlement of Investment Disputes with its seat in Washington DC (ICSID) or to ad hoc arbitration under the rules of the United Nations Commission on International Trade Law (UNCITRAL).2 The chosen dispute resolution mechanism is grounded in frameworks like Bilateral Investment Treaties (BITs). Dispute settlement procedures were first introduced into the early BITs in the 1960s and had become a standard provision by the 1990s.3 Over the past few decades, the number of BITs has climbed to 2,957 BITs throughout the world.4 This growing number reflects the belief that BITs can act as an effective tool in creating a more favourable investment climate for Foreign Direct Investment (FDI). Similarly, a new trend in structuring and supporting investments is the proliferation of regional arrangements in the form of Free Trade Agreements, like the North American Free Trade Agreement (NAFTA), the Comprehensive Economic and Trade Agreement between Canada and the EU (CETA) or the multi-party Energy Charter Treaty (ECT). Both forms of trade agreements, namely BITs and the multi-party Free Trade Agreements, favour arbitration as their dispute resolution mechanism.5 As investment arbitration has gained more presence within the international judicial landscape, it has also been put under the scrutiny of public society. Especially during the CETA and the TTIP negotiations, a growing public concern within Europe evolved, manifesting the belief that international investment arbitration is a threat to the principles of a democratic society and could, by allowing a “secretive panel of corporate lawyers” to overrule the will of parliament and thus, destroy legal protection.6 These concerns led to public and academic discussions on whether the traditional principle of confidentiality should be reformed towards more transparency in international investment arbitration. The most discussed component for these reforms is the figure of an amicus curiae. The figure of an amicus curiae can allow interested third parties to intervene in an investment arbitration, expressing their opinions relating to the dispute. It is often referred to broadly as third-party intervention.7 The amicus curiae helps the arbitral tribunal in its essential task, which is to find the right decision in the dispute at hand, by providing arguments, expertise and perspectives that would, in the absence of third party participation, be left outside the tribunal’s knowledge.8

The most significant regimes for investment arbitration, namely the rules of ICSID and UNCITRAL have been reformed, by implementing features allowing amicus curiae participation. Scholarship has been no less active, devoting a considerable number of articles to the discussion whether and to what extent participatory rights should be granted to an amicus curiae.9 During the last decade, mostly non-governmental organisations (NGOs) have acted as amici. Interestingly, the European Commission has actively participated in this role since the Lisbon Treaty 2009, when investment law was incorporated exclusively into the competence of the Commission.10

As amicus participation has been equated with greater transparency, the question arises whether amicus participation in itself is sufficient to enhance transparency in international investment arbitration and to address legitimacy concerns. As the European Commission is a relatively ne11 w player in the ranks of amici, it is worth questioning what role the Commission should legitimately play. From an African perspective, the issue is particularly interesting from a comparative approach, as the African Union Commission could in time have a similar role.12

Thus, this research paper will examine the current development of amicus curiae participation in investment arbitration and the functioning of the European Commission in this role. The next chapter will examine the need for transparency and reforms in international investment arbitration and will critically evaluate whether amicus participation is a suitable tool for addressing legitimacy concerns. The third chapter will examine the role of an amicus curiae in current arbitration practice. Various arbitration regimes and their approach to amicus participation will be evaluated. The chapter will also trace new developments in arbitration proceedings. The fourth chapter will concentrate on the role of the European Commission and will examine the Commission’s role as an amicus in investment disputes in practice.

2. The rationale behind third-party participation in international investment arbitration – the justification for an amicus curiae

Investment arbitration has raised many concerns under the growing scrutiny of the public society. This scrutiny has increased correspondingly to the growth of investor-State disputes and especially in the course of the negotiations of Free Trade Agreements, such as CETA and TTIP.13 Scholars have contributed a significant amount of literature devoted to criticism of one of arbitration’s core advantages, namely confidentiality. Whereas confidentiality is a major contributor to commercial arbitration’s international success, it has been confronted with growing concern in international investment arbitration. In the view of many critical scholars, international investment arbitration “operates as an international system devoid of core democratic principles”.14 The unanimous view seems to be that the cure of this “democratic deficit” lies in more transparency in international investment arbitration.15 Interestingly, more transparency is equated with the increase of amicus curiae participation. Thus, this chapter focuses on the justification for amicus participation. Firstly, it provides an overview of the current status concerning the transparency concerns raised in relation to international investment arbitration. Secondly, the question is evaluated whether amicus participation is the right instrument for addressing the transparency issue. Here, the current academic status in literature is reflected and critically evaluated.

2.1. A need for more transparency?

In investment arbitration, there is a fundamental tension between the consensual confidential character of arbitration as a dispute resolution mechanism and the increasing need for transparency due to public interest in these disputes.16 In fact, the possibility to decide disputes behind closed doors without revealing company secrets is often the major reason why parties generally decide to use arbitration for commercial disputes.17 The controversies related to the conflict between transparency and confidentiality actually go further than these principles. Rather, they reach the very legitimacy of arbitration as a dispute resolution mechanism for investor-State conflicts.18 As many scholars and civil society groups have highlighted the demand for more transparency, the question arises as to what is actually meant by transparency in the context of investor-State arbitration. In the literature, reference is made to three different points: firstly, to the lack of awareness of pending investment claims and the arbitration process itself,19 secondly, to the lack of information regarding the issues at stake and thirdly, to the inability of the public to participate.20

According to Blackaby and Richard , the key factors in achieving greater transparency are public access to investment treaty arbitration by publishing awards and providing access to party submissions and oral hearings.21 Thus, transparency in this context consists of two distinct concepts, namely procedural and informational transparency. Withholding information or difficulty in gaining access to information is also connected to the issue of freedom of information. Freedom of information is considered an essential human right, anchored in Article 19 of the Universal Declaration of Human Rights (UDHR).22 It significantly affects the public’s access to other human rights, such as participation in government, education and security.23 Thus, it is a significant contributor to our democratic societies and a very sensitive issue.

The arguments presented in favour of enhanced transparency comprise two main reasons. Firstly, it is argued that investor-State arbitration differs significantly from regular commercial arbitration, where confidentiality is highly valued. Secondly, it is alleged that investment arbitration challenges accountability and legitimacy.

Regarding the first issue, the main features of commercial arbitration need to be considered. Although investment arbitration parallels commercial arbitration and is based on it, there are considerable differences.24 Commercial arbitration ordinarily involves disputes affecting two private contracting parties and public participation is severely restricted.25 Conversely, investor-State arbitration is said to concern public interests. Disputes between a State and a (foreign) investor frequently take place in the public service sector, regarding services such as water, oil and gas or waste management.26 Thus, it concerns essential public welfare and state services, which are described as “core governmental functions” in the amicus submission of the United States in the Methanex case.27 Often, investment arbitration includes questions of significant compensation for losses resulting from regulatory measures by the State in the public interest.28 This compensation is then likely to be paid by the public as taxpayers.29 Unlike commercial arbitration, where parties can control the scope of their dispute resolution proceedings,30 Free Trade Agreements and BITs do not offer this flexibility.31 As Kenny describes appropriately, a Free Trade Agreement like CETA, NAFTA and the draft TTIP, involves multiple parties, multiple investors and multiple potential conflicts. 32 Thus, it is legitimate to argue that these considerations necessitate a one-size-fits-all approach and that “in order to ensure that the public interest and the right to involvement in decision-making is adequately protected, it is transparency, and not confidentiality that must be presumptively enshrined”.33 Simultaneously, the fact that arbitration is inherently based on the principles of party autonomy and privacy cannot be ignored completely.34 These features are among the main reasons for its attractiveness to investors, also from a historical perspective,35 and arbitration played a key role in promoting the foreign investment regime.36 However, some scholars point out that the general public may also be affected by international commercial arbitration awards.37 As Buys illustrates, an award of damages against a corporation may cause the corporation to increase the price of its products, resulting in higher purchase prices for the consumer, the public.38 Though this conclusion is correct, the comparison is misleading. Firstly, when facing higher purchase prices, individuals are affected in their role as economic subjects. On the contrary, arbitral awards resulting from investor-State disputes, affect individuals in their core role as citizens within a (democratic) state. Secondly, the effect of higher purchase prices for certain products will be limited to a particular group of individuals, namely the customers. Awards in investment arbitration proceedings, on the other hand, will always affect the state and thus, every individual citizen and resident.

In investment arbitration procedures, sovereign acts of states are reviewed “through the lens of international law”, using the “rules and culture of private arbitration”.39 Arbitral decisions often have implications beyond purely investment-related issues.40 As public interests are at stake, there is a need for “some sort of voice for the concerns of the public”, as Mourre concludes.41

Some critics also raise the argument that it is unpersuasive to draw the conclusion that a “general rule of transparency” would be appropriate in investor-State arbitration.42 As Born, the main critic of enhanced transparency, argues, the reasons for reduced confidentiality are often overstated in the light of the fact that the public does not automatically have an interest in these arbitration proceedings.43 Born justifies this argument by the small amounts of money that may be granted as a remedy in some investor-State disputes while some commercial arbitration awards can affect the economy as a whole.44 However, the author misjudges the public interest, which in the light of the many public voices raised in protest, does not only depend on the amount of money at stake. Rather, it is a question of principle. Further, it is appropriate to assume, contrary to Born’s view, a general public interest, due to the principle of popular sovereignty, which is inherent in most of today’s democratic political landscapes. As the people are the sovereign in a democratic society, it is actually they who are a party to the arbitral dispute.

The underlying issue here is the question of accountability and legitimacy, which as pointed out above, is the second major argument for enhanced transparency. The fear that investment arbitration has the potential to “usurp national decision-making powers” and state sovereignty “in areas of considerable public significance” has led to questions regarding the system’s legitimacy.45 As Choudhury emphasises, the system of investment arbitration has the potential to cause an “overall loss of state independence and sovereignty, which has implications for democratic governance”.46 Arbitration as a dispute resolution mechanism is dramatically different from the state-provided adjudicative process. Especially the fact that the deciding authorities, the arbitrators, are unelected and not accountable to the public is not consistent with basic democratic principles.47 The entrenchment of the judicial power in our democracies becomes evident, for example, by the jury system in Anglo-American jurisdictions and by the verdict introductions in German courts, which state: “on behalf of the people”.

Moreover, scholars argue that arbitrators in an investment arbitration actually lack independence.48 Arbitrators are appointed on an ad hoc basis for a particular dispute and are paid by the parties.49 Generally, each party appoints one arbitrator while the presiding arbitrator is the parties’ mutual choice.50 The pool of arbitrators compete for appointments, which could lead to biased work on the panel.51 One risk is that party-appointed arbitrators may favour their appointing party.52 Since only investors can initiate arbitration proceedings, arbitrators could favour this party with the hidden agenda to ensure future work.53 Greater transparency in investment arbitration could ensure a public opportunity to observe and evaluate the outcome of investment arbitration.54 Moreover, opening the process can create or re-establish confidence in investor-State arbitration.55 However, considering recent developments, it could be argued that a criticism of investor-State arbitration based on a lack of transparency is becoming harder to sustain.56 As we will see, the investor-State dispute resolution system has changed profoundly, shifting from a confidentiality-based model to a system that is open to the participation of non-disputing parties.57

2.2. Are amicus submissions suitable to address transparency and democratic issues in international investment arbitration?

In the academic debate, many articles do not clearly differentiate between transparency issues on the one hand and accountability and legitimacy problems on the other. Rather, the issues are merged into the transparency problem. Thus, a clearer distinction is needed. The main questions therefore are: whether the tool of transparency can cure the lack of accountability and legitimacy in investment arbitration and whether amicus participation means greater transparency and/or whether it can enhance accountability and legitimacy. For the sake of clarity, the issue of accountability and legitimacy will further be referred to as “democratic issues”. The following section gives an overview of the status quo of the debate among scholars by summarising positive outcomes and negative concerns regarding amicus participation.

2.2.1. Positive outcomes

In Choudhury’s analysis, submissions by amici curiae are a “promising source of public input into the arbitration process”, infusing it with democracy.58 Firstly, amicus participation can promote a general interest and ensure that the public does not perceive the arbitration process as a secret trade court.59 By performing the original duty of the amicus, the “friend of the court” can improve the legal quality of awards and assist in the “systemic development of international investment law as a whole”.60 This could especially be the case when the European Commission participates, as the Commission could deliver legal expertise regarding the law of the European Union. The participation of supranational regimes could also assist in preventing fragmentation of international law, “whereby conduct that is illegal under one international regime is nevertheless sanctioned under another international law regime”.61 The participation of legal experts through supranational regimes could be helpful in rendering legally top-quality awards, which are delivered faster. For example, amici from the World Trade Organization (WTO) or the European Court of Human Rights (ECHR) could assist in avoiding awards that create conflicting obligations for national governments, leading to fragmentation of international law.62

2.2.2. Legitimate concerns

On the other hand, enhanced amicus participation raises concerns. Firstly, allowing greater third-party participation could increase the duration of the proceedings as well as the costs.63 These are usually paid by the parties, as an ICSID Commentary points out.64 Opening up arbitration proceedings will definitely result in a loss of confidentiality and privacy, the essence of arbitration, resulting in less investor confidence in investment arbitration.65 The fear is raised that this could ultimately result in a decline of FDI flows, especially in relation to economically disadvantaged countries, which are mostly developing countries.66 However, in practice, a remedy could be the redaction of certain passages from arbitration documents and in camera restrictions of the hearings.67 Obviously, if amicus participation is not limited to written submissions, but opened for participation in hearings, the efficiency of the process could be threatened.68 This amount of third-party participation could, in the end, lead to “court-like” arbitration proceedings that have lost the core advantages of arbitration, namely efficiency and speed.69 This danger is especially present without clear institutional rules regarding amicus participation, as Levine argues in an article from 2011.70 However, under the recent reforms, it appears that amicus participation is adequately and consistently regulated. Clear procedures also prevent excessive costs and delays.71 Tienhaara even argues that amici curiae could provide expert knowledge at no direct cost to either party, as they are not remunerated by the parties for their services.72 It is also feared that allowing amicus submissions on one occasion sets a precedent which could open the floodgates to a large amount of submissions.73 However, experience in the last few years has not verified this concern. This is also not the experience in the WTO, rather, NGOs tend to make joint submissions.74 This is also a result of the limited resources of NGOs. Critics also argue that amicus participation could unbalance the arbitral proceedings, by favouring one party.75 However, inherent in the role of an amicus is that the submission will be impartial, as the amicus is, primarily, a “friend of the court”.76 The purpose of amicus participation, especially in the case of the European Commission, as we will see, is to present a legal opinion, not to advocate a common interest shared with one party.77 An imbalanced amicus submission, favouring one party, is unlikely to occur intentionally, although it cannot be prevented.78 However, it lies in the final authority of the tribunal, whether and to what extent the submission should be considered. As the tribunal’s composition is intended to be impartial and independent, arbitrators must be trusted to make the right decisions in this context.79

2.2.3. Critical evaluation

Can amicus participation sufficiently address transparency and democratic issues?

Regarding transparency, it is the publication of hearings, submissions and transcripts which can assist the public to understand ongoing arbitration proceedings in the first place.80 The mere fact that an amicus participates, cannot enhance transparency, as long as the outcome, submissions and transcripts of the intervention are not published, thus, when the proceedings themselves remains secret.81 Even only allowing an amicus submission without granting access to evidence and documents or hearings is questionable in enhancing transparency.82 Thus, the basis for transparency remains publication. Secondly, it remains highly dependent on the extent of amicus participation, thus, whether the amicus is allowed to attend hearings and even participate orally, or if the participation is limited to written submissions.

Regarding democratic issues, Kenny argues the amicus can “actively assist a state in defending their case throughout the presentation of specialist information”. However, the author misjudges the main role of the amicus, which is to provide independent, impartial information as a friend of the court and not to support one single party. In the latter situation, the third-party participant would not act as an amicus. Conversely, State parties frequently call intergovernmental organisations and NGOs as experts in the arbitration proceedings to support their case.83 In these cases, those entities do not act as amici but as supporting experts. As analysed by Levine, amicus participation had only minor impacts on the final awards.84 Thus, it could be concluded that the amicus submissions of NGOs only add a limited level of public legitimacy.85 However, as Levine’s article was published in 2011, it does not cover recent developments. Other studies demonstrate that amicus participations are entry points for human rights considerations and fair treatment.86 Such conclusions may also be limited to the participation of NGOs, as regional governments, like the European Commission, could be considered as legal experts, with the result that their participation could have more effect.87

Another important point is that amici themselves might not be accountable. Rather, “there are many motives besides purely altruistic ones that could lead these organizations to continue to seek even greater participation in investor-State arbitration”.88 As Vinuales points out, many NGOs depend on visibility to obtain access to financial resources.89 It must also be noted that democratic deficits appear in regional governments, as well. Often, they are not elected directly by citizens, which is also the position regarding the European Commission. Thus, it is uncertain whether their participation can qualify as democratic participation in arbitration proceedings to improve legitimacy. Though Mourre argues that the question whether amici have legitimacy should be at the discretion of the tribunal, NGOs and governmental bodies which are not directly elected cannot have the same level of accountability as a directly elected government.90

Although enhanced amicus participation seems to be a “political quick fix”, amici alone are insufficient to deal with transparency and democratic issues.91 Remaining public concerns demonstrate that measures addressing transparency and democratic issues do not resonate with the public. As the debates in the course of the drafting of CETA and TTIP have demonstrated, many non-lawyers cannot comprehend the idea of an amicus curiae and are not aware of recent changes to the investment arbitration regimes. The real remedy should consist of a package of measures, opening the arbitration proceedings to the citizens.92 As Blackaby and Richards anticipated, such packages will be implemented in a “new generation of investment treaties.”93 A very recent and innovative example is the approach to democratic issues in the CETA, which is dealt with in the next chapter.

3. The concept of the amicus curiae in international investment arbitration

3.1. General remarks on the concept of amicus curiae

An amicus curiae, often broadly referred to as third-party intervention, is the Latin expression for “friend of the court”. Amicus briefs are an early instrument in common-law jurisdictions.94 Originating in Roman law, they can be described as an ancient legal institution.95 The purpose and form of amicus briefs have varied over time and across different jurisdictions.96 In the analysis of Krislov, in the United States amicus briefs have shifted “from a source of neutral information to a flexible tactical instrument available to litigants and third parties”.97 In an international law context, amicus participation has become frequent, especially in the context of the WTO dispute settlement system and the ECHR.98

According to Black’s Law Dictionary, an amicus is “someone who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter”.99 Thus, in our context, it can be characterised as a procedural right for highly interested third parties to intervene in investment arbitration, expressing their opinions relating to the dispute.100 Amici help the arbitral tribunal in its essential task, which is to arrive at the right decision in the dispute at hand, by providing arguments, expertise and perspectives that would in the absence of third-party participation remain outside the tribunal’s knowledge.101 The classical, literal, understanding of the term is emphasised by one of the first ICSID tribunals to accept amicus participation, namely the tribunal which arbitrated the Aguas Argentinas dispute.102 In their words, “a request to act as amicus curiae is an offer of assistance – an offer that the decision maker is free to accept or reject. An amicus curiae is a volunteer, a friend of the court, not a party”.103

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1 R C Jones “NAFTA Chapter 11 Investor to-State Dispute Resolution: A Shield to Be Embraced or a Sword to Be Feared” (2002) BYULR 527 529,531.

2 B Choudhury “Recapturing Public Power: Is Investment Arbitration's Engagement of the Public Interest Contributing to the Democratic Deficit?“ (2008) 41 VJTL 775 781.

3 J A VanDuzer “Enhancing the Procedural Legitimacy of Investor-State Arbitration Through Transparency and Amicus Curiae Participation” (2007) 52 MGLJ 681 688.

4 UNCTAD United Nations Conference on Trade and Development “World Investment Report 2017” (2017) United Nations Conference on Trade and Development Prosperity for All 22 < http://unctad.org/en/pages/PublicationWebflyer.aspx?publicationid=1782> (accessed 16-05-2018).

5 UNCTAD United Nations Conference on Trade and Development “World Investment Report 2017” (2017) United Nations Conference on Trade and Development Prosperity for All 24.

6 G Monbiot “This transatlantic trade deal is a full-frontal assault on democracy” (04-11-2013) The Guardian <https://www.theguardian.com/commentisfree/2013/nov/04/us-trade-deal-full-frontal-assault-on-democracy> (accessed 19-04-2018).

7 B A Garner et al (eds) Black’s Law Dictionary (2010) 102.

8 Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, A. v. The Argentine Republic ICSID Case No. ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae, 19 May 2005, § 24.

9 L Bastin “Amici Curiae in Investor-State Arbitration: Eight Recent Trends” (2014) 30 AI 125 126.

10 See chapter 4.2.

11 This is the title used on the Commission’s official website, namely https://au.int/en/commission, where it is stated that the Commission is the secretariat of the African Union, entrusted with executive functions.

12 D Bach “The AU and the EU” in J Akokpari et al (eds.) The African Union and its Institution s (2008) 355 357.

13 K Tienhaara “Third Party Participation in Investment-Environment Disputes: Recent Developments” (2011) 16 RECIEL 230 230.

14 B Choudhury (2008) VJTL 785.

15 See Choudhury (2008) VJTL 775.

16 M Zachariasiewicz “Amicus Curiae in International Investment Arbitration: Can it Enhance the Transparency of Investment Dispute Resolution?” (2012) 29 JIA 205 205.

17 Zachariasiewicz (2012) JIA 205.

18 Zachariasiewicz (2012) JIA 205.

19 N Blackaby & Richard C “Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration?“ in M Waibel et.al (eds) The Backlash Against Investment Arbitration: Perceptions and Reality (2010) 253 267.

20 Blackaby “Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration?“ in The Backlash Against Investment Arbitration: Perceptions and Reality 267.

21 Blackaby “Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration?“ in The Backlash Against Investment Arbitration: Perceptions and Reality 267.

22 UNGA Res 217 III (10 December 1948) Universal Declaration of Human Rights.

23 W Kenny “Transparency in Investor State Arbitration” (2016) 33 JIA 471 472.

24 Tienhaara (2011) RECIEL 230; J A VanDuzer “Enhancing the Procedural Legitimacy of Investor-State Arbitration Through Transparency and Amicus Curiae Participation” (2007) 52 MGLJ 681 685; N Horn “Current Use of the UNCITRAL Arbitration Rules in the Context of Investment Arbitration” (2008) 24 Arb Int’l 587 at 591.

25 E Levine “Amicus Curiae in International Investment Arbitration: The Implications of an Increase in Third-Party Participation” (2011) 29 BJIL 200 205.

26 Levine (2011) BJIL 205.

27 Kenny (2016) JIA 489.

28 Zachariasiewicz (2012) JIA 205.

29 Choudhury (2008) VJTL 809.

30 E.g. by an appropriately worded arbitration clause in a commercial contract.

31 Kenny (2016) JIA 492.

32 Kenny (2016) JIA 492.

33 Kenny (2016) JIA 492.

34 Levine (2011) BJIL 206.

35 In the context of “gunboat diplomacy” and the Calvo Doctrine. See footnote 1.

36 Levine (2011) BJIL 206.

37 C G Buys “The Tension Between Confidentiality and Transparency in International Arbitration” (2003) 14 ARIA 121 135.

38 Buys (2003) ARIA 135.

39 Blackaby “Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration?“ in The Backlash Against Investment Arbitration: Perceptions and Reality 255; A Mourre “Are Amici Curiae the Proper Response to the Public's concerns on Transparency in Investment Arbitration?” (2006) 5 LPICT 257 265.

40 Choudhury (2008) VJTL 790-791.

41 Mourre (2006) LPICT 266.

42 G B Born International Commercial Arbitration 2 ed (2014) 2828.

43 Born Arbitration 2828.

44 2828.

45 Levine (2011) BJIL 205.

46 Choudhury (2008) VJTL 778-779.

47 Choudhury (2008) VJTL 782.

48 Choudhury (2008) VJTL 787; J A VanDuzer “Investor-state Dispute Settlement in CETA: Is it the Gold Standard?” (2016) Institut C.D. Howe Commentary No. 459 2 4.

49 VanDuzer (2016) ICDHC 4.

50 VanDuzer (2016) ICDHC 4.

51 Choudhury (2008) VJTL 787.

52 VanDuzer (2016) ICDHC 4.

53 VanDuzer (2016) ICDHC 4

54 Buys (2003) ARIA 136. According to Buys the implementation of awards is more likely if the public has confidence in the fairness of the arbitration. However, this assumption is misleading, as it is not in the hands of the public that an award is implemented.

55 C Knahr & A Reinisch “Transparency versus Confidentiality in International Investment Arbitration - The Biwater Gauff Compromise” (2007) 6 LPICT 97 112.

56 VanDuzer (2007) MGLJ 685; See also the ICSID Databank, Footnote 108, available under https://icsid.worldbank.org/en/Pages/cases/AdvancedSearch.aspx.

57 F Dias Simoes “A Guardian and A Friend? The European Commission’s Participation in Investment Arbitration” (2017) 25 MSILR 233 251.

58 Choudhury (2008) VJTL 814.

59 Levine (2011) BJIL 217; Tienhaara (2011) RECIEL 239 (the author provides a tabular overview of the most significant arguments raised in the debate.

60 Levine (2011) BJIL 217.

61 Levine (2011) BJIL 218.

62 Levine (2011) BJIL 218.

63 Tienhaara (2011) RECIEL 240; Born Arbitration 2830.

64 A/CN.9/WG.II/WP.167 Settlement of commercial disputes Transparency in treaty-based investor State arbitration Comments by the International Centre for Settlement of Investment Disputes (ICSID) para.23.

65 Levine (2011) BJIL 220.

66 Levine (2011) BJIL 220-221.

67 Tienhaara (2011) RECIEL 240; See also Article 7 of the new UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration

68 Levine (2011) BJIL 219-220.

69 Levine (2011) BJIL 219-220.

70 Levine (2011) BJIL 221; See also VanDuzer (2007) MGLJ 723.

71 Tienhaara (2011) RECIEL 240.

72 Tienhaara (2011) RECIEL 240.

73 Tienhaara (2011) RECIEL 240.

74 Tienhaara (2011) RECIEL 240.

75 Tienhaara (2011) RECIEL 240; Kenny (2016) JIA 479.

76 See p. 11.

77 Bastin (2014) AI 136.

78 See Tienhaara (2011) RECIEL 240.

79 See Footnote 42.

80 Kenny (2016) JIA 490.

81 Blackaby “Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration?“ in The Backlash Against Investment Arbitration: Perceptions and Reality 268.

82 Blackaby “Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration?“ in The Backlash Against Investment Arbitration: Perceptions and Reality 267.

83 Blackaby “Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration?“ in The Backlash Against Investment Arbitration: Perceptions and Reality 269.

84 Levine (2011) BJIL 217.

85 Levine (2011) BJIL 217.

86 C Ciaran & C Schliemann-Radbruch “When Investment Arbitration Curbs Domestic Regulatory Space: Consistent Solutions through Amicus Curiae Submissions by Regional Organisations” (2013) 6 LDR 67 98.

87 Ciaran & Schliemann-Radbruch (2013) LDR 98.

88 J Vinuales “Amicus Intervention in Investor-State Arbitration” (2007) 72 DRJ 72 78.

89 Vinuales (2007) DRJ 78.

90 Mourre (2006) LPICT 267.

91 Blackaby “Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration?“ in The Backlash Against Investment Arbitration: Perceptions and Reality 274.

92 Blackaby “Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration?“ in The Backlash Against Investment Arbitration: Perceptions and Reality 274.

93 Blackaby “Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration?“ in The Backlash Against Investment Arbitration: Perceptions and Reality 274.

94 S Krislov “The Amicus Curiae Brief: From Friendship to Advocacy” (1963) 72 YLJ 694 694

95 Krislov (1963) YLJ 694 694; D B Hollis “Private Actors in Public International Law: Amicus Curiae and the Case for the Retention of State Sovereignty” (2002) 25 BCICLR 235 239.

96 Krislov (1963) YJL 704.

97 Krislov (1963) YJL 704.

98 Mourre (2006) LPICT 257; Hollis (2002) BCICLR 238; Levine (2011) BJIL 207.

99 Garner et al (eds) Black’s Law Dictionary (2010) 102.

100 Garner et al (eds) Black’s Law Dictionary (2010) 102.

101 Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic, (formerly Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19 Order in Response to a Petition for Transparency and Participation as Amicus Curiae, 19 May 2005, § 24.

102 Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic, (formerly Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19

103 Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic, (formerly Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19Order in Response to a Petition for Transparency and Participation as Amicus Curiae, 19 May 2005, para. 13.

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Details

Title
The Participation of an Amicus Curiae in Investment Treaty Arbitration. How does the European Commission Function in this Role?
College
Stellenbosch Universitiy
Grade
1,3
Author
Year
2018
Pages
53
Catalog Number
V465602
ISBN (eBook)
9783668939134
Language
English
Series
Aus der Reihe: e-fellows.net stipendiaten-wissen
Tags
amicus curiae, international arbitration, international investment arbitration, ICSID, European Commission
Quote paper
Danielle Golinski (Author), 2018, The Participation of an Amicus Curiae in Investment Treaty Arbitration. How does the European Commission Function in this Role?, Munich, GRIN Verlag, https://www.grin.com/document/465602

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