Amicus Intervention in Investor-State Arbitration

By Viñuales, Jorge E. | Dispute Resolution Journal, November-January 2006 | Go to article overview

Amicus Intervention in Investor-State Arbitration

Viñuales, Jorge E., Dispute Resolution Journal

This article analyzes the legal standing of amid curiae in international trade and investment arbitration. Drawing on the most important decisions by the WTO Appellate Body and arbitral panels, the article emphasizes the fundamental tension between the traditional consent-based foundation of arbitration and the increasing need for transparency in proceedings that affect the public.

In the last several years, the idea that international investment arbitration should become more transparent has gained wide acceptance. Until quite recently, however, disputes between States and foreign investors were considered private as a matter of law. The main implication of this approach was the secrecy of the proceedings. While this paradigm is still dominant in the field of international commercial arbitration, it has been substantially weakened in the area of investor-state arbitration.1 It is now commonplace to make arbitral awards and/or other parts of the proceedings public. This is perfectly consistent with the subject matter of investor-state disputes, which in virtually all cases raise issues of public concern. Thus, reality has entered into the legal realm.

The issue of amicus curiae intervention in international investment disputes offers a good illustration of how this change came about.

In the last few years, a number of non-governmental organizations (NGOs) have successfully drawn upon the public character of trade and foreign investment disputes to gain access to the proceedings as amid curiae (meaning "friends of the court"). They have raised a variety of arguments, ranging from jurisdictional issues to environmental and human rights considerations. This article analyzes how the practice of amicus intervention spread from interstate adjudicatory bodies to investor-state arbitrations, focusing on the recent developments under the International Center for the Settlement of Investment Disputes (ICSID).

After a brief review of amicus practice within the context of the World Trade Organization (WTO) Dispute Settlement Body (DSB), and its influence on two well-known arbitrations heard under the International Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL Rules) involving claims under the North American Free Trade Agreement (NAFTA), I turn to the recent orders issued in two ongoing cases conducted under ICSID rules.2

The WTO Precedents

Although international proceedings are not governed by any kind of formal rule or precedent, adjudicatory bodies tend to refer to the case law of other international bodies to support their decisions. These precedents, however, have limitations. It is rare to find an adjudicatory body that deals with economic issues making references to decisions by courts that specialize in human rights issues or vice versa, despite the fact that no legal obstacle prevents such cross-referencing. It is difficult to precisely identify which lines are less likely to be crossed and the main reasons for this. It probably has a lot to do with the background of the judges and arbitrators as well as the type of problems with which they deal.

With respect to international investment disputes, the main precedents relied on by NGOs are three WTO cases decided by the DSB between 1998 and 2001,3 which run afoul of the restrictive amicus practice of the International Court of Justice (ICJ).

The first decision in the sequence is the report of the WTO Appellate Body in the U.S.-Sbrimp case.4 The Appellate Body report corrected the WTO panel's interpretation of Article 13 of the Dispute Settlement Understanding (DSU), which deals with the panel's right to seek information.5 The report stated, in relevant part:

A panel has the discretionary authority either to accept and consider or to reject information and advice submitted to it, whether requested by a panel or not.... The amplitude of the authority vested in panels to shape the processes of fact-finding and legal interpretation makes clear that a panel will not be deluged, as it were, with non-requested material, unless that panel allows itself to be so deluged. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Amicus Intervention in Investor-State Arbitration


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

    New feature

    It is estimated that 1 in 10 people have dyslexia, and in an effort to make Questia easier to use for those people, we have added a new choice of font to the Reader. That font is called OpenDyslexic, and has been designed to help with some of the symptoms of dyslexia. For more information on this font, please visit

    To use OpenDyslexic, choose it from the Typeface list in Font settings.

    OK, got it!

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search


    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.