Article 37

Subscribe to Article 37 via RSS

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.