Amici Curiae in Investment Treaty Arbitrations: Authority and Procedural Fairness - SIAR 2009-2
Boris Kasolowsky and Caroline Harvey are members of the International Arbitration
Group of Freshfields Bruckhaus Deringer LLP in Frankfurt, Germany. This article is based
on a talk given by Boris Kasolowsky at the International Arbitration School in Düsseldorf
on 26 September 2008. The views expressed in this article, and any errors, are the authors’
own. Most of the sources cited herein are available (as of July 2010) at
Originally from: Stockholm International Arbitration Review
AMICI CURIAE IN INVESTMENT TREATY ARBITRATIONS: AUTHORITY AND PROCEDURAL FAIRNESS
Boris Kasolowsky and Caroline Harvey
Amici curiae have been permitted to participate in investment treaty arbitrations1 on the basis that (i) such arbitration proceedings have concerned issues of public interest, (ii) amici curiae can assist the tribunal with special expertise and (iii) the "arbitral process could benefit from being perceived as more open or transparent."2 Their participation, however, inevitably places an additional burden on the parties to the proceedings. If accepted, the written submissions of amici curiae typically require consideration and where appropriate a response from the parties and the tribunal. Unavoidably, this results in additional costs for the parties. Moreover, amici curiae often side with one of the disputing parties. This article accordingly addresses the following question: how can arbitration tribunals ensure that parties to investment treaty arbitration proceedings are treated fairly when permitting amici curiae participation?
In answering this question, we first address the sources as well as the scope of and limitations on arbitration tribunals’ powers to permit amicus curiae participation in investment treaty arbitrations (section B.). Secondly, we analyse the various procedural requirements and limitations that arbitration tribunals have in the exercise of their powers imposed on amici curiae in order to safeguard the procedural propriety of arbitration proceedings (and ultimately the enforceability of any award) (section C.). In our conclusion, we suggest procedural limitations and requirements that may be or ought to be, depending on the circumstances, imposed on amici curiae in order to avoid such participation imposing an undue burden on either of the parties to the dispute and in order to ensure that they are treated fairly (section D.).