International economic law enjoys a higher level of compliance, compared to other areas of international law. This can be attributed to the increased desire to attract foreign capital and trade liberalisation. However, the pursuit of these two agendas have witnessed an intersection with public interest considerations. The dispute settlement mechanisms for trade and investment law have assumed that these public interest considerations would be adequately represented by the Host State. However, states often fail to represent the interest of marginalised communities. Thus, amicus curiae participation serves as a relatively inexpensive avenue for non-state actors like indigenous communities, civil societies and environmental organisations to effectively raise issues that have been neglected by the litigating parties. The impact of non-state actors as amicus curiae can visibly be seen in the inclusion of their arguments in the final judgement of the European Court of Human Rights and the Inter-American Court of Human Rights. However, distrust towards non-state actors continues to be a central ethos in international trade and investment law.
This article begins by providing a comparative perspective of how the WTO, UNCITRAL and ICSID have engaged with non-state amicus submissions through notable disputes handled by the three institutions. In this context, we highlight that international economic law tribunals have only accepted amicus submissions if they have not been objected to by State parties, thereby defeating the purpose of amicus submissions as a counter towards errors committed by the State.
WTO Dispute Settlement Mechanism
Article 13.2 of the DSU permits submissions if the panel or appellate body believe it would clarify any factual or legal information. The indistinctive language of the provision necessitates the importance of panel reports and appellate body decisions to clarify the conditions that permit the acceptance of non-state actors as amicus curiae. An analysis of WTO decisions by Theresa Squatrito points to the tendency of accepting amicus submission only if they have received endorsement from a disputing party.
In the US-Shrimp dispute (first dispute to accept a non-state amicus submission), the panel stated that information from an NGO can only be made if a member of the dispute accepts the document, “as part of their submission”(¶7.8). In the Article 21.5 compliance report, a submission by the National Wildlife Federation was granted legitimacy as the submission was annexed to the argument presented by the United States.
Shortly after in EC-Asbestos (¶812), the panel accepted two of the 5 NGO submissions, the justification provided for the inclusion of only two submissions (Collegium Ramezzini and the American Federation of Labor) was because the European Community (EC) cited the submissions in their arguments. During the appellate body stage of the dispute, 17 more submissions were made by non-state actors but were all rejected due to the lack of support from the EC (¶56).
UNCITRAL disputes have been more considerate towards the acceptance of amicus submission. This is largely due to its conjoined usage with the NAFTA agreement. The tribunal in Methanex Corporation v USA (¶25), utilised the discretionary powers under Article 15(1) of the UNCITRAL Arbitration Rules to accept amicus submission. UPS v Canada accepted the interpretation made in Methanex. Shortly after the UPS decision, the NAFTA parties issued a Free Trade Commission (FTC) statement explicitly permitting amicus submissions, thereby solidifying its acceptance in future disputes. However, the FTC statement did not mandate the acceptance of amicus curiae and their participation was subject to the discretion of the concerned tribunal.
In Glamis Gold v United States, the investment tribunal permitted a representation from the Quechan Indian Nation (an important indigenous community). The Quechan Indian Nation highlighted an important issue concerning the location of the investor’s mine on their ancestral land. However, the tribunal limited itself to only the issues raised by the investor and since neither disputing party supported the Quechan Indian Nation submission, the tribunal simply deemed it to be irrelevant in the dispute. In addition to this glaring error, the few strides that were made by the FTC statement were made redundant due to the replacement of the NAFTA agreement with the USMCA (Article 31.11 fails to highlight relevance of amicus curiae to matters of public interest).
ICSID’s first encounter with an amicus submission was soon after the decision in Methanex, however, the tribunal chose to deviate from the more progressive outlook of the Methanex tribunal. In Aguas del Tunari v Republic of Bolivia, the tribunal was faced with an important matter concerning the privatisation of water supply in Bolivia and the denial of public access to water. Despite the far-reaching public policy implications of the dispute as well as the support by over 300 representatives of the Bolivian civil society as well as the civil society from 39 other nations (here) for the participation of amicus curiae, the tribunal refused to accept any amicus submissions.
Similar to Aguas del Tunari, the Vivendi dispute also dealt with the privatisation of water supply that led to a sudden rise in rates and rendered the water undrinkable. The Vivendi tribunal exercised its discretionary powers from Article 44 of the ICSID Convention, a provision that grants residual powers to a tribunal. The radical stance taken by the Vivendi decision led to a formal amendment of the ICSID Rules, with the addition of Article 37 of the Arbitration Rules in the ICSID Convention.
The tribunal in Aguas del Tunari simply rejected the submission on the grounds of a lack of consent from the disputing parties and the inability of the tribunal to supersede their consent, it failed to provide a more detailed explanation. Thus, it is unclear if the Respondent State-supported or criticised the amicus submission in Aguas del Tunari. In Vivendi on the other hand the Respondent State supported the amicus submissions, even criticising the tribunal during the annulment hearing on their failure to consider the amicus curiae brief. Thus, it is possible to argue that the amicus in Vivendi was able to submit its brief due to the support it received from Argentina.
A Critique of State Centrism Concerning Amicus Participation
Mainstream international legal scholarship continues to be dominated by the orthodox positivist view – states are the only actors of international law. The WTO has embraced this view by envisioning a system that permits only WTO member governments to have access to the dispute settlement system. While international investment law differs from the WTO as it serves as an exclusive forum for non-state foreign investors to raise disputes against states, these investors often have the financial capital to lobby States to represent their needs. This may be seen when host states facilitate human rights violations that would benefit the interest of these investors.
TWAIL scholarship, for instance, emerged to re-examine the relationships between newly independent countries and international law to identify imperialist influences. Making the Third World State the central focus of TWAIL scholarship in terms of demanding institutional changes. While TWAIL I endorsed the centrality of the Nation-State to international law, TWAIL II scholarship on the other hand disputed this idea. TWAIL II agreed with TWAIL I’s emphasis on the principle of sovereignty and non-intervention, but it does not consider the Third World States as innocent bystanders, as they may be complicit in the imperialist mission. In addition to reinterpreting the role of the Nation-State, TWAIL II expanded the Third World framework to be inclusive of all marginalised communities. These marginalised communities are not exclusively located in the Global South and may also include communities in the geographic Global North.
Considering the implications of these decisions, the level of amicus participation and transparency ought to be essential or at least deemed significant after determining the impact of the dispute on the public. Unfortunately, the WTO agreement, ICSID Arbitration Rules, and the UNCITRAL Arbitration Rules fail to explicitly link amicus submissions to the “public interest-enhancing features” of non-state submissions. However, it would appear that only those amicus submissions are accepted that support a stance presented by a nation-state, while this too can be beneficial, it still restricts the expansionary benefit an amicus curiae can provide. A more concerning scenario is when an affected stakeholder is represented by neither of the disputing parties, as seen in the Glamis Gold dispute. One of the key points raised by the Quechan Indian Nation is that the US government cannot represent their interest, instead, the Quechan Indian Nation should be viewed as a sovereign nation that has the monopoly to determine the severity of the impact on their culture if their ancestral land is violated. The situation faced by the Quechan Indian Nation reflects the tendency of international forums to negate the experience of indigenous communities.
While one may argue that arbitration ought to be limited to the subject matter of a dispute, this insulated view cannot persist. The current global political economy’s continuing impetus towards neoliberalism, and the tendency of international economic law disputes to have public interest implications, demands greater accessibility for non-state actors. For instance, US-Shrimp dealt with the protection of endangered sea turtles, EC Asbestos dealt with the banning of cancerogenic material, Methanex dealt with the production of a highly pollutive additive, UPS could have led to a rise in postal prices and a lack of unionism amongst postal workers, and Glamis Gold dealt with mining rights that caused environmental damage as well as desecrating indigenous land.
Due to the jurisdictional limitations and nature of international economic law disputes, if a non-state actor is prevented from making an amicus representation, then it is unlikely that their voice will ever be considered in an application to review the award. While we do not suggest that a greater acceptance of amicus curiae will resolve the lack of international recognition of non-state actors, it is worth considering that by enhancing participation during a dispute, affected stakeholders can make their representations highlighting pressing issues that adversely impact them and their interests.
Pushkar Reddy is the Director and Co-Founder of JFIEL. He is currently a legal consultant at Altair Engineering.
Rubanya Nanda is a lecturer at Jindal Global Law School.
Image: ICSID convention signing (March 18, 1965). From left to right: Cyril H. Davies, Secretary’s Office; Aron Broches, general counsel of the World Bank Group; and President Woods (Credits: The World Bank).