By Jonathan Hew

Investor-state arbitrations frequently raise issues of public importance that parties other than those to proceedings, such as NGOs, may want to address. “Amicus briefs” afford them a limited opportunity to do so, as demonstrated in Infinito Gold v Costa Rica.[1]

Amicus briefs

Provisions on amicus briefs can be found in certain arbitral rules.[2]  One prominent example is Article 37(2) of the ICSID Arbitration Rules, which gives ICSID tribunals the discretion to admit an amicus brief.  In deciding whether to do so, a tribunal must consider, among other things, the extent to which:

  • the brief would assist the tribunal in determining a factual or legal issue related to the proceeding by bringing a perspective, knowledge or insight that is different from that of the disputing parties;
  • the brief would address a matter within the scope of the dispute;
  • the third party has a significant interest in the case.

The tribunal must also ensure that the amicus brief does not disrupt proceedings or unduly burden or unfairly prejudice a disputing party, and that disputing parties can make observations on the brief.

Infinito Gold

In Infinito Gold, a Canadian investor initiated ICSID arbitration proceedings against Costa Rica for revoking its mining concession in breach of the Costa Rica-Canada Bilateral Investment Treaty.

The tribunal granted an application by a Costa Rican environmental NGO to file an amicus brief addressing matters related to the tribunal’s jurisdiction under Article 37(2). In assessing the considerations under Article 37(2), the tribunal focussed on the fact that the NGO had brought the domestic proceedings against both the Canadian investor and Costa Rica that caused the cancellation of the former’s concession. The tribunal further noted that the NGO’s perspective may be useful in assessing whether the Canadian investor had made out a prima facie case on the merits.

To avoid disrupting proceedings or unfairly disadvantaging the disputing parties, the tribunal also emphasised that the NGO must act as a “friend” and restricted the NGO’s brief to 10,000 words.

Practically speaking

Amicus briefs are by no means the norm in investor-state arbitrations – they were recorded in less than 10% of the 577 cases in ICSID’s database. The extent to which they operate to influence tribunals’ determinations and awards also remains difficult to assess.

However, it would be unwise to ignore the potential significance of amicus briefs in a dispute. Indeed, the recent award in Philip Morris v Uruguay runs counter to the notion that briefs hold little weight. Briefs are also being used increasingly by non-traditional actors including regulators and industry groups, while the sustained pressure from civil society on investment and trade regimes is unlikely to subside anytime soon.

[1]              ICSID Case No. ARB/14/5 – see Procedural Order No. 2, dated 1 June 2016.

[2]              E.g., the ICSID Arbitration Rules, the ICSID Additional Facility Arbitration Rules and the UNCITRAL Rules on Transparency.

This post was prepared with the assistance of Ashleigh Humphries in the London office of Latham & Watkins.