The Law and Practice of

International Courts and Tribunals 12 (2013) 365390

brill.com/lape

Requirements for Amicus Curiae Participation in

International Investment Arbitration
A Deconstruction of the Procedural Wall Erected in Joint
ICSID Cases ARB/10/25 and ARB/10/151
Christian Schliemann

PhD Candidate Free University Berlin

Abstract
The legal standard on amicus curiae participation in international investment arbitration has
been forged by the judicial development of legal rules and, in parallel, the modification of normative sources, such as the ICSID Arbitration Rules. Current and future decisions by arbitral tribunals on the participation of amicus curiae in a given dispute must abide by this consolidated
standard. In June 2012, the arbitral tribunal in Joint ICSID Cases No. ARB/10/15 and No. ARB/10/25
released a procedural order, rejecting an amicus petition. This Order contains various deviations
from the applicable legal standard and severely restricts the options for amicus participation. The
recent attempt to strengthen the legitimacy of international investment arbitration by allowing
for greater amicus participation and the acknowledgement of the interdependence of investment
law and other areas of international law is thereby put in peril.
Keywords
international investment arbitration; amicus curiae; independence; public interest; significant
interest; scope of the dispute; systemic integration

I.Introduction
In the last decade, international investment arbitration tribunals have
dealt with various petitions to grant leave to proceed as amicus curiae, most
of which petitions have been accepted.2 This practice was followed and
1) Border Timbers Limited, Border Timbers International (Private) Limited, and Hangani Development Co. (Private) Limited v. Republic of Zimbabwe, ICSID Case ARB/10/25; Bernhard von Pezold
and others v. Republic of Zimbabwe, ICSID Case ARB/10/15, Procedural Order No. 2, 26 June 2012.
2) Cases in which amicus briefs were accepted: Methanex Corporation v. United States of America, Decision of the Tribunal on Petition from Third Persons to Intervene as Amici Curiae,
Koninklijke Brill NV, Leiden, 2013

DOI: 10.1163/15718034-12341262

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fostered by changes in the legal standards applicable in different investment arbitration contexts. The Free Trade Commission of the North American Free Trade Agreement (NAFTA) issued a Statement on Non-Disputing
Party Participation3 and the ICSID Arbitration Rules now contain a new
Rule 37 (2), as well as a new Rule 41 (3) in the ICSID Additional Facility
Arbitration Rules that explicitly include the possibility to submit amicus
briefs.4 Also, the United Nations Commission on International Trade Law
(UNCITRAL) is currently engaged in reviewing its standard of transparency
including non-disputing party participation.5 Moreover, provisions on
amicus participation in recent Model BITs and, on the basis of these, newly
15January 2001; Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v.
Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to Petition for Transparency
and Participation as Amicus Curiae, 19 May 2005, Order in Response to a Petition by five nongovernmental organizations for permission to make an amicus curiae submission, 12 February
2007; Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 5, 2 February 2007; Piero Foresti et al. v. The Republic of South Africa, ICSID Case
No. ARB(AF)/07/1, Award, 4 August 2010; Glamis Gold Ltd. v. United States of America, Award,
8 June 2009 and Decision on Application and Submission by Quechan Indian Nation, 16 December
2005; Pacific Rim Cayman LLC v. The Republic of El Salvador, ICSID Case No. ARB/09/12, Procedural
Order No. 8, 23 March 2011; United Parcel Service of America Inc. v. Government of Canada, Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae, 17October
2001; Merrill & Ring Forestry L.P. v. The Government of Canada, Award, 31 March 2010; AES Summit
Generation Limited and AES-Tisza Erm Kft. v. Hungary, ICSID Case No. ARB/07/22; Electrabel
S.A. v. Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012, para. 1.18; Ioan Micula, Viorel Micula and others v. Romania, ICSID Case
No. ARB/05/20. Cases in which amicus petitions were not accepted: Aguas del Tunari S.A. v.
Republic of Bolivia, ICSID Case No. ARB/02/3, Letter from President as Response to Petition for
Amicus Status, 29 January 2003; Apotex Inc. v. The Government of the United States of America, Procedural Order No. 2 on the Participation of a Non-Disputing Party, 11 October 2011; Aguas Provinciales de Santa Fe S.A., Suez, Sociedad General de Aguas de Barcelona S.A. and InterAguas Servicios
Integrales del Agua S.A. v. The Argentine Republic, ICSID Case No. ARB/03/17, Order in Response to
a Petition for Participation as Amicus Curiae, 17 March 2006; Caratube International Oil Company
LLP v. Republic of Kazakhstan, ICSID Case No. ARB/08/12 (after order of the Tribunal on amicus
petition no amicus brief was submitted).
3)NAFTA, Statement of the Free Trade Commission on Non-Disputing Party Participation, 7October 2003, available at http://www.international.gc.ca/trade-agreements-accords-commerciaux/
assets/pdfs/Nondisputing-en.pdf.
4)ICSID Convention, 575 U.N.T.S. 159, Rule 37 (2) Rules of Procedure for Arbitration Proceedings,
Art. 41 (3) Additional Facility Rules, Schedule C, Arbitration.
5)The latest draft: UNCITRAL, Working Group II (Arbitration and Conciliation), Settlement of
Commercial Disputes: Preparation of a Legal Standard on Transparency in Treaty-Based InvestorState Arbitration, UN Doc. A/CN.9/WG.II/WP.169, Art. 5, para. 35. The latest discussion on the
draft article on third person participation: UNCITRAL, Report of Working Group II (Arbitration
and Conciliation) on the work of its fifty-seventh session, UN Doc. A/CN.9/760, paras. 3957.

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concluded BITs6 have seen the light of day. Due to these developments, a
strong assumption on the emergence of a customary standard on amicus
participation in international investment arbitration is justified. Arbitral
tribunal case law at the same time contributes to and clarifies this legal
standard.7 The repeated assertion in the literature, that, as regards amicus
participation in investment arbitration, there is no generalized standard,
but rather piecemeal work, no longer holds true.
This development, which has taken place over the last ten years, has
been accompanied by a growing interest in academic literature discussing
the pros and cons of amicus participation.8 The common denominator is
6)Canada Model Foreign Investment Promotion and Protection Agreement (FIPA), Art. 39.
The provision was included inter alia in the Canada-Peru and the Canada-Colombia Free Trade
Agreements, see UNCITRAL Transparency in treaty-based investor-State arbitration, Compilation of comments by governments, Canada, UN Doc. AC/CN.9/WG.II/WP.159/Add.1, paras. 2732.
United States Model Bilateral Investment Treaty, Art. 28 (3); the Investment agreements by the
United States reflect since 2002 the provisions of the Model BIT with respect to Amicus Curiae
submission, the text of the Model BIT as well as the BITs concluded since then are listed in UNCITRAL, Transparency in treaty-based investor-State arbitration, Compilation of comments by
Governments, USA, UN Doc. A/CN.9/WG.II/WP.159/Add.3, 10, fn. 16. Chile-Australian Free Trade
Agreement, Art. 10.20.2; Art. 10.20 (3); CAFTA-Dominican Republic; all Free Trade Agreements by
El Salvador except the one with Chile, UNCITRAL, Transparency in treaty-based investor-State
arbitration, Compilation of comments by Governments, UN Doc. A/CN.9/WG.II/WP.159/Add.2,
3. Chile included amicus provisions in all investment related chapters negotiated as part of Free
Trade Agreements since 1997 (Canada, Mexico, USA, Republic of Korea, Japan, Peru, Australia,
Colombia), UNCITRAL, Transparency in treaty-based investor-State arbitration, Compilation
of comments by Governments, UN Doc. A/CN.9/WG.II/WP.159/Add.4, 2. The Southern African
Development Community has elaborated a Model BIT as a Guideline for its 15 member States; the
Model BIT includes the possibility of submitting amicus curiae briefs and is available at: http://
www.iisd.org/itn/wp-content/uploads/2012/10/SADC-Model-BIT-Template-Final.pdf.
7)On the formation of custom or general principles of international law through BITs and the
role of related jurisprudence: Campbell McLachlan, Investment Treaties and General International Law, 57 International and Comparative Law Quarterly (2008), 361401, 391398. Note here
that, in contrast to substantive issues, the participation of amicus as a procedural question is
covered by the multilateral ICSID Convention with its 147 Member States.
8)Patrick Wieland, Why the Amicus Curiae Institution is ill-suited to address indigenous peoples rights before investor-state arbitration tribunals: Glamis Gold and the right of intervention, 3
Trade, Law and Development 2 (2011), 334366; Katia Fach-Gmez, Rethinking the Role of Amicus
Curiae in International Investment Arbitration: How to Draw the Line Favorably for the Public Interest, 35 Fordham Journal of International Law (20112012), 510564; Alexis Mourre, Are
Amici Curiae the Proper Response to the Publics Concerns on Transparency in Investment Arbitration?, 5 The Law and Practice of International Courts and Tribunals (2006), 257271; Tomoko
Ishikawa, Third Party Participation in Investment Treaty Arbitration, 59 International and
Comparative Law Quarterly 2 (2010), 373412; Howard Mann, Opening the Doors, at least a little:
Comment on the Amicus Decision in Methanex v. United States, 10 Review of European Community

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that investment arbitration can be clearly distinguished from classic commercial arbitration.9 Certainly, some investment arbitration cases might
involve only technical legal aspects, similar to those found in commercial
disputes. However, in other cases, companies challenge governmental regulations, in such areas as the supply of basic goods and services, the management of hazardous materials or the use of land and natural resources.10
The decisions of investment tribunals in those disputes may not only have
serious consequences for the citizens of that State, but will also affect the
public interests of other communities, in cases involving similar matters.11
Stronger expectations are therefore justified as regards the transparency of
proceedings, in terms of access to documents12 and the legitimacy of the
process, as concerns the intervention of non-disputing persons.13 Without
more transparency and public participation, it is argued, investment treaty
arbitration contributes strongly to the democratic deficit on the transnational level.14 Tribunals recognize this need for more transparency, but
and International Environmental Law 2 (2001), 241245; Loukas A. Mistelis, Confidentiality and
Third Party Participation, 21 Arbitration International 2 (2005), 211232; Jorge E. Vinuales, Human
Rights and Investment Arbitration: The Role of Amicus Curiae, 8 Revista Colombiana de Derecho
Internacional (2006), 231274; Catherine Yannaca-Small, Transparency and Third Party Participation in Investor-state Dispute Settlement Procedures, in OECD (ed.), International Investment
Law A Changing Landscape (2005), 927.
9) Gus van Harten, The Public-Private Distinction in the International Arbitration of Individual Claims Against the State, 56 International and Comparative Law Quarterly (2007), 371394,
372373, 378; Nigel Blackaby, Public Interest and Investment Treaty Arbitration, Transnational
Dispute Management 1 (2004), 1.
10) Vivendi, supra note 2; Biwater Gauff, supra note 2; Piero Foresti, supra note 2; Glamis Gold,
supra note 2.
11)Methanex, supra note 2, at para. 49; Vivendi, Order of 19 May 2005, supra note 2, at paras.
1920.
12) J. Anthony Vanduzer, Enhancing the Procedural Legitimacy of Investor-State Arbitration
Through Transparency and Amicus Curiae Participation, 52 McGill Law Journal (2007), 681723,
684687, 695697; Ross P. Buckley & Paul Blyschak, Guarding the Open Door: Non-party Participation Before the International Centre for Settlement of Investment Disputes (2007), UNSW
Law Research Paper No. 200733, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_
id=989264, 2.
13) On the question of whether and under what conditions legitimacy may actually be increased
by amicus participation: Amokura Kawharu, Participation of Non-governmental Organizations
in Investment Arbitration as Amici Curiae, in Michael Waibel et al. (eds.), The Backlash Against
Investment Arbitration: Perceptions and Reality (2010), 275295, 283289.
14) Barnali Choudhury, Recapturing Public Power: Is Investment Arbitrations Engagement of
the Public Interest Contributing to the Democratic Deficit?, 41 Vanderbilt Journal of Transnational Law (2008), 775832, 782787.

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assert that heightened transparency and public participation via amicus

petitions have to be held in check with the functionality and effectiveness of investment arbitration.15 Critics add that other reasons, such as the
risk of the politicization of disputes, higher costs, and unattractiveness for
investors, are also arguments against greater transparency.16
Against this background, on 26 June 2012, the arbitral tribunal in Joint
ICSID Cases No. ARB/10/15 and No. ARB/10/25 issued Procedural Order
No. 2, concerning the application for leave to proceed as amicus curiae,
submitted jointly by four indigenous communities from Zimbabwe and
a European NGO.17 At the heart of the dispute lies a claim by the investor, alleging a violation of the Bilateral Investment Treaties (BITs) between
Germany and Switzerland on the one hand and Zimbabwe on the other,
for wrongful expropriation of their land in the course of Zimbabwes land
reform project. The land in dispute was and, contrary to the expropriation, still is used for commercial forestry.18 At the same time, one group of
amicus petitioners, the indigenous communities,19 lay claim to this land as
their traditional territory. The petitioners argued with the tribunal that it
cannot hand down a decision in this dispute, without necessarily touching
upon the rights of these indigenous peoples. In addition, the petitioners
15)UPS, supra note 2, at para. 69; Pacific Rim, supra note 2, at para. (iv); Piero Foresti, supra note 2,
at 1; Vivendi, Order of 19 May 2005, at para. 29.
16)Nigel Blackaby & Caroline Richard, Amicus Curiae: A Panacea for Legitimacy in Investment
Arbitration?, in Michael Waibel et al. (eds.), The Backlash Against Investment Arbitration: Perceptions and Reality (2010), 253274, 272273; Noah Rubins, Opening the Investment Arbitration
Process: At What Cost, for What Benefit?, 3 Transnational Dispute Management 3 (2006), 3.
17)See the existing critique of the Procedural Order: Sarah Schadendorf, Human Rights Arguments in Amicus Curiae Submissions: Analysis of ICSID and NAFTA Investor-State Arbitrations,
10 Transnational Dispute Management 1 (2010), 123, 1015; L.E. Peterson, Analysis: Tribunals
reading of amicus curiae tests could make life difficult for antagonistic amici and those seeking to raise novel concerns, such as human rights law, Investment Arbitration Reporter, 27 June
2012; Tomaso Ferrando, Investment Arbitration: Restricted Area, 16 July 2012, available at http://
criticallegalthinking.com/.
18)European Center for Constitutional and Human Rights (ECCHR), Human Rights inapplicable
in International Investment Arbitration? A Commentary on the Non-Admission of ECCHR and
Indigenous Communities as Amici Curiae before the ICSID Tribunal, July 2012, available at http://
www.ecchr.de/index.php/cr/articles/human-rights-inapplicable-in-international-investmentarbitration.html. On land reform in Zimbabwe: Ian Scoones et al., Zimbabwes land reform: challenging the myths, 38 Journal of Peasant Studies 5 (2011), 967993; Sam Moyo, Three decades of
agrarian reform in Zimbabwe, 38 The Journal of Peasant Studies 3 (2011), 493531.
19)Four different communities are affected by the conduct of BTL in the specific area where the
company was expropriated: The Chikukwa, the Ngorima, the Nyaruwa and the Chinyai.

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aimed to draw the tribunals attention to the wider impact this case might
have, given the notoriety of conflicts between land use by national or transnational corporations and the rights of indigenous peoples to that same
land.20 This issue was the subject of work by the African Commission on
Human and Peoples Rights,21 the Inter-American Court of Human Rights22
and the United Nations Human Rights Committee.23 The tribunal, however, refused to grant leave to proceed as amicus.
The article presents, first, the legal standard for access of non-disputing
parties to investment arbitration [II]. Secondly, the legal reasoning of the
tribunal in Joint ICSID Cases No. ARB/10/15 and ABR/10/25 will be analyzed
and compared to the legal standard described in the preceding section [III].
The article concludes with arguments on an arbitral tribunals approach to
amicus participation after von Pezold [IV].
II.The Common Legal Standard
The legal standard applicable to amicus participation in ICSID arbitrations
is based on Rule 37 (2) of the ICSID Arbitration Rules. According to Rule 37
(2) of the ICSID Arbitration Rules, prospective amici should bring a new
and special legal or factual perspective [A]; a significant interest of the petitioner and/or a public interest should be involved in the arbitration proceeding [B]; their arguments should be within the scope of the dispute [C];
they should have the relevant expertise and experience and should be independent [D]; and finally they should not cause an undue burden or unfair
prejudice to one of the parties [E]. Rule 37 (2) reflects prior jurisprudence
by arbitral tribunals. This jurisprudence also encompasses cases dealt with

20) ECCHR, supra note 18, at 1.

21) African Commission on Human and Peoples Rights, Case No. 155/96, The Social and Economic
Rights Action Center and the Center for Economic and Social Rights v. Nigeria, paras. 5558.
22) Inter-American Court of Human Rights, Comunidad Indgena Sawhoyamaxa v. Paraguay,
Merits, Series C. No. 146 (2006); Inter-American Court of Human Rights, Pueblo Saramaka v. Suriname, Merits, Series C. No. 172 (2007); Inter-American Court of Human Rights, Pueblo Indgena
Kichwa de Sarayaku v. Ecuador, Merits, Series C. No. 245 (2012).
23) Human Rights Committee, Concluding Comments on the Periodic Report of Chile, in Annual
Report of the Human Rights Committee 2007, UN Doc. A/62/40 (Vol. I), 4247, 46, para. 19.

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under the UNCITRAL Rules that rely on BITs, as well as other treaties, such
as, in particular, NAFTA.24
A.To Bring a New and Special Legal or Factual Perspective
In arbitral decisions, it is held that amici may provide a particular insight
on the issues under dispute, on the basis of either substantive knowledge or
relevant expertise or experience that goes beyond, or differs in some respect
from, that of the disputing parties.25 Amicus petitioners must, therefore, as
a first requirement, adduce a new, special legal or factual perspective in
order to fulfill the role ascribed to them.
The importance of receiving factual information through amicus participation was highlighted in the UNCITRAL elaboration process on the new
standard for transparency.26 Organizations which, due to their membership or grass roots activity, can provide salient data about the actual public impact of company activities or regulatory State action that is hard to
obtain otherwise are most appropriate to participate.27 Taking into account
the procedural limitation of ICSID tribunals that do not investigate on their
own and rely entirely on the information provided by the parties, the value
of additional factual information may sometimes become essential for a
tribunals evaluation of the facts.28 In relation to legal arguments, the tribunal in the Aguas Provinciales case highlighted that: The traditional role of
an amicus curiae in an adversary proceeding is to help the decision maker
arrive at its decision, by providing the decision maker with arguments, perspectives, and expertise that the litigating parties may not provide.29
In conclusion, it can be said that the special perspective required from
an amicus brief might relate to law, facts, or the application of the law to

24)For example, Vivendi, Order of 12 February 2007, supra note 2, at paras. 1315; Aguas Provinciales de Santa Fe, supra note 2, at para. 24.
25)Apotex, supra note 2, at paras. 2122.
26)UNCITRAL, Report of Working Group II, supra note 5, at para. 52.
27)Epaminontas E. Triantafilou, Is a Connection to the Public Interest a Meaningful Prerequisite of Third Party Participation in Investment Arbitration?, 5 Berkeley Journal of International
Law (2010) 3846, 44.
28)In this sense: Buckley & Blyschak, supra note 12, at 12.
29)Aguas Provinciales de Santa Fe, supra note 2, at para. 13. In a similar vein highlighting the special perspective of amici as concerns questions of law: UPS, supra note 2, at para. 62.

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the facts.30 The perspective is new and special when it is different from,
rather than a repetition of, what the parties have argued.31 Finally, in order
to strengthen the arbitral process, this requirement must be interpreted
widely so as to ensure that all angles on, and all interests in, a given dispute
are properly canvassed.32
B.Public Interest and/or Significant Interest of Petitioner
As a second requirement, tribunals have to ascertain whether either a public interest and/or a significant interest of the petitioner are involved in an
investment arbitration.
Rule 37 (2) of the ICSID Arbitration Rules stipulates that the petitioner
must have a significant interest in the proceeding and specifies that, on a
general level, a personal stake in the proceedings is not an argument for
refusing the petition, but, on the contrary, is an argument in favor of participation rights. More concretely, it can be inferred from existing cases
who is considered to have a significant interest. In the Glamis Gold arbitration, the Indian Quechan Nation argued that their own rights, the rights
of indigenous peoples, to protect their sacred sites and cultural heritage
were at stake, and the tribunal deemed this sufficient to satisfy the criteria
for amicus participation.33 Anyone who is directly or indirectly affected by
the decision of an arbitral tribunal is thus deemed to have a significant personal interest in the case.
This was also an argument used by the Canadian Union of Postal Workers in their amicus petition in the UPS arbitration, which was accepted by
the tribunal.34 The tribunal in Apotex comes closest to a definition and
supports the affected rights approach, insofar as it ruled out the participation of an amicus petitioner on the grounds, that it [the petitioner] has
30) Vivendi, Order of 12 February 2007, supra note 2, at para. 20.
31) Andrew Newcombe & Axelle Lemaire, Should Amici Curiae Participate in Investment Treaty
Arbitrations?, 5 Vindobona Journal of International Commercial Law and Arbitration 1 (2001),
2240, 3637. Newcombe and Lemaire also point to the practice of the US Supreme Court as
concerns this requirement. Rule 37 (1) of the Rules of the United States Supreme Court states: An
Amicus curiae brief that brings to the attention of the Court relevant matter not already brought
to its attention by the parties may be of considerable help to the Court (authors italics).
32) Apotex, supra note 2, at paras. 2122.
33) Glamis Gold, supra note 2.
34) UPS, supra note 2, at paras. 3, 70. The case also involved a matter of public interest.

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not explained how the rights or principles it may represent or defend

might be directly or indirectly affected by [...] the outcome of the overall proceedings.35 These cases show that the approach held by scholars
that mere proof of a private legal interest does not suffice for amicus curiae
status36 is not tenable anymore, as it is in contradiction to ICSID Rule 37 (2)
and the aforementioned case law.
Tribunals also frequently require that the dispute be a matter of public interest, although this is not provided for in ICSID Rule 37 (2), nor the
UNCITRAL draft.37 When it comes to the notion of public interest in investment arbitration, in its first order in the Vivendi case, the tribunal held that,
because governmental measures and the responsibility of the State as such
were at stake, the dispute did indeed entail public interest, as, however,
do all investment arbitrations.38 The tribunal went on to highlight the fact
that, in addition, the concrete proceedings did involve more than the regular public interest, as the dispute centered on a basic public service to millions of people and that, as a result, it may raise a variety of complex public
and international law questions, including human rights considerations.
Any decision rendered in this case, whether in favor of the claimants or the
respondent, has the potential to affect the operation of those systems and
thereby the public they serve.39 This is a form of definition that recurs in
other decisions. According to the tribunal in Aguas Provinciales de Santa
Fe, a matter is deemed to be of public interest when the final decision in an
investment dispute has the potential to affect, directly or indirectly, persons
beyond those immediately involved as parties in the case.40 Scholars have
attempted to specify this approach by proposing a twofold notion of public
interest. On the one hand, the public interest can be thought of in terms of
the interest of the State and its constituents and, on the other hand, it can
implicate issues that encapsulate the common interest of mankind, such as
the environment or human rights.41
35)Apotex, supra note 2, at para. 28.
36)Newcombe & Lemaire, supra note 31, at 37. For another case: Pacific Rim, supra note 2, and the
argumentation in the amicus petition itself of 2 March 2011, 2.
37)Biwater Gauff, supra note 2, at paras. 5153 and footnotes below.
38)Vivendi, supra note 2, Order of 19 May 2005, at para. 19; Biwater Gauff, supra note 2, at paras.
5152; Methanex, supra note 2, at para. 49.
39)Vivendi, supra note 2, Order of 19 May 2005, at para. 20.
40)Aguas Provinciales de Santa Fe, supra note 2, at para. 18.
41)Choudhury, supra note 14, at 791.

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In conclusion, as Bartholomeusz notes in the context of the European

Court of Human Rights, the interests invoked by amicus petitioners and
required by tribunals provide two different justifications for participation.42
On the one hand, there are non-local actors, usually NGOs with an interest in certain topics, such as the protection of the environment, business
and human rights, or the rights of refugees on an abstract level, not related
to any specific community.43 They justify their access to ICSID arbitration,
because they defend a public interest by representing various and changing
persons or collectives, affected only by a paradigmatic action, embodied
in a given, concrete dispute.44
On the other hand, local or regional actors may be representing those
who are directly affected by a dispute, but they are not primarily or necessarily engaged in furthering the objectives of a public interest elsewhere.
The same applies to regional organizations that monitor their member
States compliance with norms established by the organization.45 For these
organizations, the category of a significant personal interest is essential.
Finally, tribunals will regularly inquire whether both interests are present in cases involving amicus petitions.46 Either interest alone may, however, independently present sufficient justification for the participation of
non-disputing parties, as both serve a specific legal purpose in securing the
rights of persons who are directly affected or for protecting the wider interests of the polity or communities in a comparable situation.
C.Within the Scope of the Dispute
Thirdly, amici curiae have to address issues that are within the scope of
the dispute.47 This requirement presents the outer boundary of the special
perspective that amici curiae are supposedly to adduce. Interpreted according to its literal meaning, it can mean nothing less than the arguments
42)Lance Bartholomeusz, The Amicus Curiae before International Courts and Tribunals, 5 NonState Actors and International Law (2005), 209286, 241.
43)For example, Friends of the Earth in the Glamis Gold arbitration or the International Institute
for Sustainable Development in the Biwater or Vivendi arbitrations.
44)Buckley & Blyschak, supra note 12, at 1516.
45)Electrabel, supra note 2, at 4.92.
46)Apotex, supra note 2, at paras. 2831.
47)UNCITRAL, Working Group II, supra note 5, Art. 5 (1) (4) (d); NAFTA, Statement of the Free
Trade Commission, supra note 3, B (3) (d).

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ventured by the petitioners should be related to the substantive legal questions to be resolved in the arbitration. According to this interpretation,
arbitral tribunals have explicitly classified procedural questions as unsuitable content for amicus petitions.48 Other tribunals have not followed
that approach, but, conversely, have expressly required arguments on
jurisdiction,49 or simply accepted them.50 The tribunal in Apotex concludes
on that issue that there is no hard and fast rule that excludes jurisdiction
from amicus submissions. On the contrary, it is perfectly conceivable that
issues of jurisdiction might raise matters of public interest in themselves,
on which non-disputing parties might be well-placed to provide assistance
and perspective or insights beyond those of the disputing parties.51
The scope of the substantive legal arguments that are admissible in
amicus briefs raises the general problem of applicable law in international
investment disputes. On the basis of Art. 42 (1) of the ICSID Convention, a
tribunal shall decide a dispute in accordance with such rules of law as may
be agreed upon by the parties, as well as that in the absence of such agreement, the tribunal shall apply the law of the Contracting State party to the
dispute, and such rules of international law as may be applicable. Regularly, the first legal source to be considered is the BIT governing the investment relationship between host State and the State where the company is
domiciled. But most BITs also include provisions on the legal sources for
the decisions of investment tribunals. According to the two BITs underlying the dispute in the von Pezold arbitration, a tribunal decides, pursuant
to the BIT itself, on the basis of any treaties in force between the Contracting Parties, such rules of general international law as may be applicable,
and the domestic law of the Contracting Party in the territory in which the
investment in question is situated.52 Various other sources are therefore
potentially applicable in addition to the BIT. Given that context, international investment arbitration is one of the areas in which the fragmentation of international law creates challenges with respect to the application
48)UPS, supra note 2, at para. 71. This approach was followed by the tribunal in AES, supra
note 2, as can be deduced by the arguments submitted by the European Commission in its amicus
brief. European Commission, Written Submission Pursuant to Art. 37 (2) ICSID Arbitration Rules,
15January 2009, JURM (2009) 10001, para. 11.
49)Pacific Rim, supra note 2, at para. (ii).
50)Electrabel, supra note 2, at para. 5.32.
51)Apotex, supra note 2, at para. 33.
52)Germany-Zimbabwe BIT, Art. 11.2; Swiss-Zimbabwe BIT, Art. 10.3.

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of general norms of international law, such as the Vienna Convention on

the Law of Treaties (VCLT), but also as regards special norms, such as the
law of the World Trade Organization or human rights law.53 This warrants
the question of what is meant by the reference to rules of general international law contained in the ICSID Convention and BITs, and under which
circumstances these rules actually apply.
As for the first part of the question, the term general international
law refers to Art. 38 of the Statute of the International Court of Justice
and includes customary law, conventions and general principles of international law.54 Hence, from an abstract perspective, bilateral investment
treaties may incorporate the whole body of the traditional sources of international law. It is merely a question of the circumstances under which
concrete norms should be applied and by which methodological means.
Does the reference to international law require a direct applicability, or is
it rather a means of interpreting the norms of the BIT itself? Some basic
assumptions are accepted in answer to these questions that apply generally to the harmonization of fragmented areas of international law.55 One
such assumption relies on the hierarchy of international law.56 Peremptory norms of international law do apply directly, as long as investment
law norms are not themselves considered to be of a peremptory nature.57
When it comes to customary law and contracts outside the field of international investment law, direct application does not, however, seem to
be the rule.58 Investment tribunals have resorted to those norms as an
53)Anne van Aaken, Fragmentation of International Law: The Case of International Investment
Protection, University of St. Gallen Law and Economics Research Paper Series (2008), available at
http://ssrn.com/abstract=1097529.
54)Christoph H. Schreuer, The ICSID Convention A Commentary (2nd ed., 2009), Art. 42, paras.
169170.
55)Report of the Study Group of the International Law Commission, Fragmentation of International Law: Difficulties arising from the diversification and expansion of international law, UN
Doc. A/CN.4/L.682, 13 April 2006.
56)Moshe Hirsch, Interactions between Investment and Non-Investment Obligations, in Peter
Muchlinski et al. (eds.), The Oxford Handbook of International Investment Law (2008), 154181,
157160.
57)Art. 53 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331. On the content of ius
cogens see the examples given by the International Law Commission, Draft Articles on State
Responsibility, Commentary on Art. 40, in Official Records of the General Assembly, Fifty-Sixth
Session, UN Doc. A/56/10, pp. 283284, paras. 46.
58)Note the exception: Chemtura Corporation ( formerly Crompton Corporation) v. Government of
Canada, UNCITRAL, Award of 2 August 2010, paras. 135139.

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interpretive tool,59 making use of the principle of systemic integration,60

based on Art. 31 (3) (c) of the Vienna Convention on the Law of Treaties.
According to that principle, arbitrators may resort to other norms of public
international law, in order to construe investment treaty provisions, such as
the notion of fair and equitable treatment, non-discriminatory measure or
indirect expropriation. Amicus petitioners have repeatedly argued in that
direction. In Foresti, amici argued that a governmental measure introducing a
minimum threshold of 26% ownership for historically disadvantaged South
Africans in the mining industry61 is legally justified by the right to substantive
equality.62 In Biwater, amicus curiae introduced, as a legally relevant factor, investor responsibilities, deduced from human rights obligations. The
tribunal accepted that line of reasoning.63
In summary, legal arguments that have a value as interpretive tools for
the application of investment treaties are generally included in the scope
of the dispute. In that regard, it is necessary to highlight the distinction
between the jurisdictional basis of a tribunal and the substantive question
of which law is applicable in a dispute. As the International Law Commission concludes: The jurisdiction of most international tribunals is limited
to particular types of disputes or disputes arising under particular treaties.
A limited jurisdiction does not, however, imply a limitation of the scope of
the law applicable in the interpretation and application of those treaties.64

59)In this regard see the first ICSID treaty arbitration: Asian Agricultural Products Ltd. v. Republic
of Sri Lanka, ICSID Case No. ARB/87/3, Award of 27 June 1990, paras. 2122.
60)McLachlan, supra note 7, at 369374; ILC, Fragmentation of International Law, supra note
55, at para. 413 et seq.; But see the recent refusal that such a customary norm of systemic integration existed under international law in: Electrabel, supra note 2, at para. 4.130. The tribunal did,
however, take into account non investment law (Law of the European Union), but for different
methodological reasons.
61)Under the label Black Economic Empowerment, which is already used in the petition: Ibid., at
para. 4.1. A more detailed account of this case as part of the black economic empowerment strategy: Matthew Coleman & Kevin Williams, South Africas Bilateral Investment Treaties, Black
Economic Empowerment and Mining: a Fragmented Meeting? 9 Business Law International 1
(2008), 5694.
62)Piero Foresti, supra note 2, at paras. 4.7, 4.114.13. The tribunal did not address this issue as the
dispute was settled through agreement.
63)Biwater, supra note 2, Award of 24 July 2008, para. 601 and Amicus Curiae Submission of
26 March 2007.
64)ILC, Fragmentation of International Law, supra note 55, at para. 45.

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D.Experience, Independence, Expertise

Another important criterion allows for the rejection of petitioners who are
not experienced, independent, or without expertise.
As regards required experience and expertise, only in one case did prior
jurisprudence dismiss an amicus petition on grounds of lack of experience and expertise. One of the petitioners, an NGO, failed to provide the
tribunal with specific information on the nature and size of its membership, the qualifications of its leadership, the expertise of its staff, and its
activities. The tribunal held that, for a non-governmental organization, it
is not enough to justify an amicus submission on the general grounds that
it represents civil society or that it is devoted to humanitarian concerns.65
Further, three individual petitioners failed to provide a detailed curriculum vitae on each of them, which would have enabled the tribunal to judge
whether they actually possessed the requisite expertise and experience.66
On the basis of this decision, it is clear that prospective amici should have
an established area of work, with a clear focus on a legal, political or social
subject matter and that their engagement in this work has to be presented
to the tribunal in the petition, by describing the aforementioned characteristics of the organization or individual.67
Regarding independence, although it is not explicitly envisaged in Rule
37 (2) of the ICSID Arbitration Rules, tribunals have applied an independence test, as it is explicitly included in the NAFTA Free Trade Commission
Statement, as well as in the draft UNCITRAL standard. Within the elaboration process of the new UNCITRAL standard on transparency, it was
pointed out that amici are not experts.68 Also the tribunal in the Methanex
arbitration highlighted the difference by stating that Amici are not experts,
such third persons are advocates (in the non-pejorative sense) and not
independent in that they advance a particular case to a tribunal.69 This
is only logical, given that amici are also required to have a significant interest in the case. However, this does not mean that the criterion is devoid
65)Ibid., at para. 33.
66)Aguas Provinciales de Santa Fe, supra note 2, at para. 30. The tribunal however granted petitioners the right to refine their description and to apply again, para. 34.
67)Vivendi, supra note 2, Order of 12 February 2007, at para. 15.
68)UNCITRAL, Report of Working Group II (Arbitration and Conciliation) on the work of its
fifty-third session, UN Doc. A/CN.9/712, para. 50.
69)Methanex, supra note 2, para. 38.

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of sense. To allow an informed decision of the tribunal on the petitioners

independence, prospective amici should provide in their application letter
information on: the identity of the petitioner, including, where relevant, its
membership and legal status; its general objectives, the nature of its activities, and any parent organization; whether or not the third party has any
affiliation, direct or indirect, with any disputing party and information on
any government, person or organization that has provided any financial
or other assistance in preparing the submission.70 Not every kind of minor
financial or factual relationship is, however, considered to be detrimental
to independence. Under the UNCITRAL draft, 20% of the annual revenue is
given as an indicative threshold that should not be exceeded in order to be
considered as independent.71 It was, however, decided not to include that
strict threshold in the official text, in order to leave room for reasonable
discretion by the tribunal.72 Regarding existing jurisprudence, the amicus
petition of the US Chamber of Commerce in the UPS case is quite enlightening, in that it explicitly stated that it had received a payment of $100,000
from UPS, which was a total of 12% of its annual budget prior to filing its
amicus brief.73 The tribunal did not consider this to be sufficient grounds
to reject petitioners for lack of independence. Similarly, collaboration with
one of the parties on a non-material level, is also not grounds for rejecting
amicus curiae, as illustrated by the case of a Tanzanian NGO, accepted as
joint amicus in the Biwater case, although the petitioners explicitly stated
that they seek to work with the government and governmental agencies in
the area of their expertise.74 On the contrary, even the explicit identification
with one of the parties was at times accepted by tribunals. The Chamber of
Commerce, for example, stated in its amicus petition in the UPS case, that

70)UNCITRAL, Working Group II, supra note 5, Art. 5 (2), para. 35; NAFTA Statement of the Free
Trade Commission, supra note 3, at para. 2 (c)(e); Aguas Provinciales de Santa Fe, supra note 2,
at paras. 24, 29, 32.
71)UNCITRAL, Report of Working Group II, supra note 5, at para. 49.
72)Ibid., at paras. 4951.
73)UPS, supra note 2, Amicus Submission of the US Chamber of Commerce, 20 October 2005,
available at: http://naftaclaims.com/Disputes/Canada/UPS/UPS-USCC_Amicus_Submission-2010-05.pdf, at para. 9.
74)Biwater Gauff, supra note 2, The Lawyers Environmental Action Team and others, Petition
for Amicus Curiae Status in Case No. ARB/05/22 before the ICSID, 27 November 2006, available at:
http://italaw.com/sites/default/files/case-documents/ita0090.pdf, 3.

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its principal function was to represent the interests of its members and that
it therefore wished to intervene as amicus to support its member, UPS.75
In conclusion, the quoted jurisprudence shows that a relationship to
the parties is no impediment to amicus status being granted. The relevant
question to assess whether an amicus petitioner remains independent is,
therefore, whether a relationship of control or the determinative influence
of a party to the dispute on the writing of an amicus brief and therefore on
its content can be ascertained.
E.No Undue Burden or Unfair Prejudice to One of the Parties
A final criterion that has enjoyed widespread attention within the decisions handed down by tribunals76 requires amicus curiae not to create an
undue burden on or unfair prejudice to one of the parties. To properly deal
with that requirement, tribunals have to distinguish the substantive and
the procedural impact of an amicus submission.77 From the procedural
angle, any tribunal can ensure that non-disputing party participation does
not overly burden the proceedings by establishing procedural safeguards,
such as time limits.78 The tribunal in the UPS arbitration mitigated the burden by resorting to various procedural guarantees, including a limitation
on the length of the submission, a requirement for timely submission, and
a denial of the right to call witnesses in order to avoid additional costs of
cross examination.79 This approach is widely shared in the jurisprudence
of other tribunals.80
As concerns the substantive impact of submissions, concluded and
pending cases involving amicus petitions show that petitioners usually take
a clear position in favor of one of the parties. The Glamis Gold arbitration
which in some aspects is very similar to the von Pezold arbitration discussed
below provides a useful illustration of this dynamic. The amicus submission
by the Quechan Indian Nation claimed that the contested environmental
75)Amicus Submission of the US Chamber of Commerce, supra note 73, at paras. A 4, B 9.
76)Glamis Gold, supra note 2, at para. 269; Pacific Rim, supra note 2, at IV; Vivendi, Order of
12 February 2007, supra note 2, at para. 26; UPS, supra note 2, at para. 69.
77)UNCITRAL, Report of Working Group II, supra note 5, at para. 77.
78)Ibid., at para. 77.
79)UPS, supra note 2, at para. 69.
80)For a similar reasoning, see: Vivendi, Order of 12 February 2007, supra note 2, paras. 21, 27;
Biwater Gauff, Procedural Order No. 5, supra note 2, at paras. 5960; Aguas Provinciales de Santa
Fe, supra note 2, at para. 15; Methanex, supra note 2, at paras. 3637.

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regulation on the operation of open pit mines was legitimate, as it was

necessary to protect their sacred sites and cultural heritage. The tribunal
accepted the submission, without assuming an unfair prejudice to the corporate party, although the arguments clashed directly with the primary
position of the company, which claimed that these measures amounted to
an expropriation.81 However, petitioners favoring one of the parties do not
always prejudice the company side; various petitioners have explicitly supported the companies involved in disputes.82
Often the degree to which non-disputing party participation will substantively impact on the proceedings to the benefit of one or the other party
simply depends on the content of each case. Reflecting on the practice of
amicus participation and its substantive impact, the UNCITRAL documents
therefore only state that both parties should be given the opportunity to
present their observations on the submissions by the third party.83 Further
requirements to avoid an undue burden on a substantive level are not
envisaged. In fact, in Aguas Provinciales the tribunal held that any undue
burden could be avoided by establishing procedural safeguards.84 An unfair
or undue burden on the procedural or the substantive level is therefore not
a danger, as long as the procedural safeguards put in place by any tribunal
are respected by amicus curiae.
III.The Legal Reasoning of the Tribunal in the von Pezold Arbitration
in Contrast to the Common Legal Standard
In the von Pezold arbitration, the tribunal rejected the petition to proceed
as amicus curiae for non-fulfillment of almost all of the requirements currently in place for the regulation of amicus participation. The tribunals
statements on the respective elements will be presented in this section and
81)Glamis Gold, supra note 2.
82)Amicus Submission of the US Chamber of Commerce, supra note 73, 1. In Grand River Enterprises, supra note 2, the Assembly of First Nations intervened explicitly expressing its support
for the claimant company, Office of the National Chief, Assembly of First Nations, Amicus submission, 19 January 2009, available at: http://www.state.gov/documents/organization/117812.pdf.
Glamis Gold, supra note 2, Application for leave to file a non-disputing party submission by the
national mining association, 13 October 2006.
83)UNCITRAL, Report of Working Group II, supra note 5, at para. 77.
84)Aguas Provinciales de Santa Fe, supra note 2, at para. 15 (authors italics).

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contrasted with the findings on the commonly applicable standard, described above.
A.The Scope of the Dispute
A recurring problem in the decision of the tribunal in the von Pezold case
is the limitation of the scope of the dispute, which has consequences on
various procedural requirements to be fulfilled in order to participate as
amicus. The tribunal prepares the terrain by claiming that: The Arbitral
tribunals agree in this regard with the claimants that the reference to such
rules of general international law as may be applicable in the BITs does not
incorporate the universe of international law into the BITs or into disputes
arising under the BITs.85 Coming closer to the case at hand, the tribunal
lends its voice, again, to the claimant and asserts the following: As regards
the indigenous communities, the claimants themselves recognize that
they [the indigenous communities] have some interest in the land, over
which the claimants assert full legal title and therefore have historically
granted them access to parts of the Border Estate. It may therefore well be
that the determinations of the arbitral tribunals in these proceedings will
have an impact on the interest of the indigenous communities.86 Nevertheless the arbitrators conclude that: they would need to consider and decide
whether the indigenous communities constitute indigenous peoples [...],
the decision itself is clearly outside of the scope of the dispute.87
The tribunal completely rejects the application of international law outside the investment context, in contravention of the standard on direct
applicability of norms prevalent in hierarchy as well as systemic integration of other relevant norms via interpretation. A thorough examination
of the petitioners claims may have led the tribunal to reflect on this issue
and the hierarchical status of the rights of indigenous peoples to selfdetermination, including their traditional lands. Suffice it to say that, as
regards the rights of indigenous peoples, couched in terms of the right to
self-determination, a reference to a potential ius cogens status is possible88
85)Bernhard von Pezold and others, supra note 1, at para. 57.
86)Ibid., at para. 62.
87)Ibid., at para. 60.
88)Self-determination is one of the examples given in the list of the ILC, supra note 57, at para. 5.
Whether indigenous peoples enjoy the same right to self-determination as peoples in general is
contested. Art. 3 of the United Nations Declaration on the Rights of Indigenous Peoples however

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and therefore is a reference to a direct applicability. Moreover, even if the

rights of indigenous peoples were not considered to be of a peremptory
nature, the tribunal in the von Pezold case also declines to take into account
human rights law on indigenous peoples via interpretation. The tribunal is
not convinced that consideration of Art. 26 of the UN Declaration on the
Rights of Indigenous Peoples and other customary international law norms
on indigenous peoples is in fact part of their mandate,89 thereby deliberately
leaving aside the fact that the rights of indigenous peoples may have had an
influence on the determination of the legality of the expropriation. This is,
however, a reasonable argument, taking into account that the Court of the
Southern African Development Community has clarified in a decision on
Zimbabwe, that the land reform project might be legitimate, if the benefits
of the expropriation were indeed distributed to poor, landless and other
disadvantaged and marginalized individuals or groups.90 Furthermore, the
tribunal in von Pezold omits any reference to other norms mentioned by
the petitioners in their application,91 such as the International Covenant
for Civil and Political Rights (ICCPR), the UN Convention for the Elimination of All Forms of Racial Discrimination (CERD) and the African Charter
on Human and Peoples Rights, which include land and consultation rights
of indigenous peoples and which are clearly binding on Zimbabwe. In fact
the ICCPR and CERD are also binding on Germany and Switzerland,92 the
other parties to the underlying BITs and therefore to be included in the set
uses the same language as Art. 1 of the International Covenant on Civil and Political Rights: Indigenous peoples have the right to self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural development. On this:
Erica-Irene Daes, Explanatory Note Concerning the Draft Declaration on the Rights of Indigenous
Peoples (1993), UN Doc. E/CN.4/Sub.2/1993/26/Add.1, para. 12; James Anaya, The Right of Indigenous Peoples to Self-Determination in the Post-Declaration Era, in Claire Charters & Rodolfo
Stavenhagen (eds.), Making the Declaration Work (2009), 184198.
89)Von Pezold, supra note 1, at para. 58.
90)Mike Campbell (Pty) Ltd and William Michael Campbell v. The Republic of Zimbabwe, SADC (T)
2/07, 28 November 2008, 53. For a detailed account of the case against the background of the land
reform: Memory Dube & Rob Midgley, Land Reform in Zimbabwe: context, process, legal and
constitutional issues and implications for the SADC region, in Konrad Adenauer Stiftung (ed.),
Monitoring Regional Integration in Southern Africa Yearbook, Vol. 8, 2008, 303341.
91)ECCHR, Human Rights inapplicable in International Investment Arbitration?, supra note 18,
at 5.
92)Zimbabwe ratified the CERD on 13 May 1991 and the ICCPR on 13 May 1991, Germany ratified
the CERD on 16 May 1969 and the ICCPR on 17 December 1973, Switzerland ratified the CERD on
29 November 1994 and the ICCPR on 18 June 1992.

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of applicable norms. The tribunals decision in the von Pezold case fosters
the fragmentation of international law and violates applicable legal standards of investment arbitration and treaty interpretation.
B.A Special Legal or Factual Perspective
Bearing in mind this restrictive approach to the substantive scope of the
dispute, the requirement to bring a new and special legal or factual perspective cannot be fulfilled at all, as the arguments adduced by amicus
curiae often revolve around other norms of international law, such as the
protection of the environment and the human rights of various persons
and collectives. It is no surprise that, according to the tribunal, petitioners amicus brief would not assist the tribunal in the determination of a
factual or legal issue related to the proceedings.93 The tribunal elaborates
that neither Party has put the identity and/or treatment of indigenous
peoples, or the indigenous communities in particular, under international
law, including human rights law on indigenous peoples, in issue in these
proceedings.94 It requires petitioners thereby to rely on arguments already
raised by the parties, which inverts the very meaning of an amicus petition.
Moreover, by using this line of argument, the tribunal limits its ability to
receive further factual information, which is an important and highlighted
benefit of amicus participation, at no cost. In von Pezold the tribunal may
have benefitted from further information on the indigenous peoples, on
their actual situation in Zimbabwe and thereby on the factual impact of
the land reform. This information might have been helpful in evaluating
whether the governmental measure that formed the basis of the expropriation serves a public interest and is non-discriminatory, as done by the
SADC tribunal in the decision mentioned above.
C.The Significant Interest of the Petitioners
Another ground for refusing petitioners request was the European NGOs
lack of a significant interest. The tribunal considered the petitioners separately and, as noted above, in relation to the indigenous communities, the
tribunal accepted that they have an interest in this case.95 As regards the
93)Von Pezold, supra note 1, at para. 57.
94)Ibid., paras. 57, 59.
95)Supra note 86.

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European NGO, the tribunal stated that the NGO includes in its mission
a focus on corporate responsibilities for human rights abuses.96 It also
acknowledges a petitioners reference to the wider impact the dispute will
have, namely the negative impacts of land use and acquisition by TNCs on
local communities land use and community consultation in relation to
that land,97 but then simply states: However, [the European NGO]s mission and experience do not, in the context of these proceedings, as presently constituted, satisfy the requirement of a significant interest in the
proceedings.98
The tribunal thereby engaged the significant interest only for the indigenous communities and accepted that interest, which, however, had no
consequences insofar as the rights of indigenous peoples were already
deemed outside the scope of the dispute. The tribunal also applied the significant interest test to the public interest-driven NGO and could not find
it, employing a method that resembles a self-fulfilling prophecy. This contravenes the applicable legal standard and prior jurisprudence, in which,
regularly, a combined test or in some cases either the significant interest of
the petitioners or a public interest analysis is carried out, whatever interest
factually applies. It has been accepted that a significant interest is held to
exist when the dispute directly or indirectly affects the interests of third
parties, such as in the Glamis Gold case, which also involved the land rights
of indigenous peoples. A public interest was accepted when the governmental measure at stake, in the case in hand the land reform project in
Zimbabwe, had repercussions on a great number of people (the population
of Zimbabwe), thereby displaying a general character appearing in similar
cases and the petitioner content-wise engages in solutions for this general
problem (interaction between commercial land use by investors and natural resources regulation by States). By splitting up the consideration of the
interests, of the communities on the one hand and the NGO on the other,
while at the same time not recognizing the individual causes motivating
both actors, the tribunal intentionally shuts the door to participation.

96)Von Pezold, supra note 1, at para. 61.

97)Ibid.
98)Ibid.

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D.Independence
Another argument for refusing amicus status in the von Pezold case was
the lack of independence of the petitioners. The tribunal first accepted
that indigenous communities and their chiefs are not organs of the State
or under their control.99 They further considered an annual governmental
budgetary support to a local NGO facilitating communication between the
petitioners in Europe and Zimbabwe of approximately 10% to be within the
limits of neutrality.100 In addition to these assertions, the tribunal relied on
the claimants evidence on the political ideas of the director of that local
NGO and, further, on an article published by that same person on land
reform and the witness testimony of one of the claimants, which found him
to be in support of the resettlement of land in Zimbabwe and the respondents land reform policies.101 This fact was subsequently considered to be
sufficient grounds to refuse petitioners request for lack of independence.102
Relying on the immaterial alignment with government policies, the tribunal considered the petitioners not to be independent. Such an approach
to independence is neither foreseen in existing rules, nor reflected or
applied in prior jurisprudence, in which several petitioners have explicitly
asserted from the outset that they are in full support of one or the other of
the partys claims. Moreover, it neglects the fact that the States responsibility towards the indigenous peoples was also an argument in the petition. As
a relationship of control or a partys determinative impact on the content
of the petition could not be established, it seems that independence was
lacking because of the rejection of the ideas submitted.
E.No Undue Burden or Unfair Prejudice
Finally, the tribunal was of the opinion that the petition unfairly prejudiced
the claimants.103 The tribunal does not explain this prejudice further; it does
however submit, in a separate section of the Order, that the indigenous
communities appear to lay claim over or in relation to some of the lands,
with respect to which the claimants assert a right to full, unencumbered
99)
100)
101)
102)
103)

Ibid., at paras. 5253.

Ibid., at para. 54.
Ibid., at para. 55.
Ibid., at para. 56.
Ibid., at para. 62.

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legal title and exclusive control. Based on this fact, the tribunal concludes
that the indigenous communities appear to be in conflict with the claimants primary position in the proceedings.104 The tribunal therefore construed the requirement not to cause an undue burden or unfair prejudice,
in a way so as to extend this requirement to the substantive legal arguments
of the petitioners. This is contrary to the interpretation given in prior arbitral jurisprudence that focused on procedural equality. The tribunal did not
take into account that the substantive impact on the position of one of the
parties is simply a matter of fact, translated into law through rights granted
in international conventions. If such petitioners are indigenous peoples, as
the tribunal was requested to acknowledge, and if they traditionally inhabit
the contested land, then they enjoy internationally safeguarded rights. In a
cynical way, this may well be considered as an unfair burden on the parties. Legally however, this fact simply presents a mandate for consideration
of these rights by an international tribunal exercising judicial powers. The
arbitrators, moreover, did not recognize that all amicus interventions to
date have sided with the substantive arguments of one of the parties. In
addition, the tribunal did not even attempt to mitigate any burden caused,
by applying an approach common in prior jurisprudence that circumvents
or at least alleviates that burden by imposing procedural safeguards.
Finally, by assuming an unfair burden on the company, the tribunal demonstrated a fundamental misunderstanding of the legal nature of the rights
of indigenous peoples, which are primarily contained in norms addressed
to the State. It is the State that incurs responsibility to protect these rights,
including from the actions of third parties, e.g. investors.105 These obligations are accompanied by legal standards addressing companies, such
as the OECD Guidelines or the UN-Guiding principles.106 However, this
does not abrogate the obligations of the State. Zimbabwe incurs primary
responsibility both in the event that the property is not returned to the
claimant and, importantly, also in the event that the property is returned
to the claimant. The finding of the tribunal, that the burden lies solely with
104)Ibid., at para. 51.
105)Supra notes 21, 22, 23.
106)UN- Guiding Principles on Business and Human Rights, UN Doc. A/HRC/17/31, Principles
12, 18 and Commentary; OECD Guidelines for Multinational Enterprises Recommendations for
Responsible Business Conduct in a Global Context, adopted on 25 May 2011, Part. I, Chapter IV
and Commentary.

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the investors, is therefore not based on any reasonable interpretation of

human rights law. On any account, the tribunal deliberately rejected the
opportunity to remind both parties of their respective human rights obligations, contrary to the standards established in other amicus petitions.
F.Conclusion
In the Glamis Gold arbitration, the tribunal noted that there is no binding
effect of arbitral awards for future cases. Nevertheless, there is a certain
standard of precedence that requires tribunals wishing to deviate from
established jurisprudential practice to provide thorough reasoning for
having done so.107 As shown above, the von Pezold tribunals interpretation of the legal requirements for amicus participation is at odds with the
interpretations given to these requirements by practically all prior arbitral
jurisprudence. On that basis, the tribunal should have supplied a thorough
reasoning for its deliberate divergence from established jurisprudential
practice as required by the tribunal in Glamis Gold. Without such reasoning, the decision simply seems arbitrary, overly restrictive, and devoid of
any legal justification.
IV.Future Amicus Participation after von Pezold?
In cases such as von Pezold, where investment law has to be interpreted in
light of other norms of international law and arbitrators do not feel confident in doing so, a possible and appropriate solution could have been
simply to refuse jurisdiction.108 As routes to review or appeal from arbitral decisions are available only in limited scenarios under the ICSID rules,109
107)Glamis Gold, supra note 2, at para. 8; on the different approaches to precedent: Andrs Rigo
Sureda, Precedent in Investment Treaty Arbitration, in Christina Binder et al. (eds.), International Investment Law for the 21st Century Essays in Honour of Christoph Schreuer, 830842, with
a section on amicus participation.
108)This argument is taken even further, when it is recommended that as a system of private
international governance investment arbitrators are not guardians of the public interest and
therefore should not decide investment disputes that implicate broader political and economic
issues at all. Choudhury, supra note 14, 779.
109)Art. 51 (1) (c) (ii) ICSID Arbitration Rules provides for judicial review, when a tribunal has
manifestly exceeded its powers, which is construed as being applicable in the event of a general
failure to apply international law, as part of the applicable law, or when it comes to the nonapplication of individual rules, where these rules are fundamental rules such as peremptory

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there are serious repercussions for affected non-disputing parties when

their participation is denied. Arbitral tribunals thereby hoist the responsibility for a harmonious approach to international law onto other institutions, such as regional human rights bodies. These may be called upon in
order to challenge State actions that are taken as an enforcement measure
of arbitral tribunal awards, because these awards did not appropriately
take into account applicable human rights law. The Inter-American Court
has dealt with the relationship between obligations stemming from investment treaties and those based on human rights treaties in a case concerning indigenous peoples in Paraguay and decided in the specific litigation
to give priority to the latter.110 On the basis of the approach chosen in von
Pezold, further cases of review of arbitral tribunals decisions are likely to
arise in the future.
Taking into account that amicus submissions were often accepted but
generally111 never reflected in the final award,112 investment tribunals
praise for transparency113 by allowing greater non-disputing party participation serves as merely window dressing. This has now been aggravated by
the severe restriction of participation rights in the von Pezold case. Investment arbitration is, however, based on the engagement of State sovereignty
through the conclusion of BITs114 and a clear expectation by a rising number of States to allow for non-disputing party participation is becoming
visible, through the rules on third-party participation in the ICSID Arbitration Rules and an increasing number of BITs, which directly and explicitly
foresee the possibility of amicus participation.115 As Van Duzer has argued,
norms of international law. The problem with this review process from the perspective of a
third party is that only parties to the dispute may call for a review via the annulment procedure.
Schreuer, supra note 54, Art. 52, at para. 263.
110) Sawhoyamaxa Indigenous Community v. Paraguay, supra note 22, at para. 140.
111) An exception is the amicus submission of the EU Commission that features prominently in
the decision on jurisdiction in Electrabel, supra note 2. In AES arguments were taken into account
but no explicit discussion of the Commissions petition took place. AES, supra note 2.
112)Consideration of amicus petitions in final awards is rare. It was only in Biwater that the tribunal took the arguments explicitly into account: Biwater Gauff, supra note 2, at para. 601. In
Pacific Rim the tribunal rejected an argument of the petitioner and referred to them once more
in a general way: Pacific Rim, supra note 2, at paras. 2.43, 5.85. In Glamis the tribunal stated that it
would take arguments into account in the award but it did not do so: Glamis Gold, supra note 2, at
para. 8. Mention of amicus arguments in all decisions does not exist.
113) Biwater Gauff, supra note 2, at para. 54.
114) Van Harten, supra note 9, at 327328.
115) Supra note 6.

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these treaties and the legal possibility to accept and use amicus petitions
are not only recommendations, such as the NAFTA Free Trade Commissions Statement, but are legally binding and require tribunals actually to
follow these rules.116 Tribunals should abide by the intention of their founders and apply procedural norms more consistently and in good faith. Moreover, they should actually take the amicus petitions into account by at least
summarizing the arguments contained therein and providing an explanation as to why they have or have not used those arguments within their legal
reasoning. To conclude, a quote from the arbitrators in the short but wellreasoned refusal to proceed with amicus in the Aguas del Tunari case seems
appropriate: The tribunal appreciates that you, and the organizations and
individuals with whom you work, are concerned with the resolution of this
dispute. The duties of the tribunal, however, derive from the treaties which
govern this particular dispute. It has been reported that the new bilateral
investment treaty between Singapore and the United States contains provisions for the amicus participation of non-governmental organizations. The
duty of a tribunal in any case that arises under that instrument will be to
follow its dictates.117

116)Vanduzer, supra note 12, at 720.

117)Aguas del Tunari, supra note 2, at 2.