ICSID Tribunal Affirms its Power to Admit Amicus Curiae Participation

June 1, 2005

On 19 May 2005, an ICSID tribunal for the first time has decided that it has the power to accept amicus curiae briefs from civil society organizations, even in the face of objections from parties. The ICSID tribunal's decision came in response to a petition for transparency and public participation presented in January 2005 by human rights organizations in Argentina, the Centro de Estudios Legales y Sociales (CELS), la Asociación Civil por la Igualdad y la Justicia (ACIJ), Consumidores Libres Cooperativa Ltda. de Provisión de Servicios de Acción Comunitaria, Unión de Usuarios y Consumidores, and the Center for International Environmental Law (CIEL). (See http://www.ciel.org/Trade_Sustainable_Dev/Suez_ICSID_8Feb05.html.)

In their petition, the NGOs highlighted the public interest issues implicated in the dispute, which concerns the provision of water and sewage in the City and Province of Buenos Aires. In that light, CIEL and its Argentine partners had requested the tribunal: to allow amicus curiae participation; to open hearings to the public; and to order the disclosure of all documents produced in the arbitration.

While Argentina supported the NGOs' petition, the foreign investor opposed it. This difference in opinion among disputing parties distinguishes this case from the Methanex case and the UPS case, where parties had agreed to allow amicus curiae submissions and open hearings. Also, Methanex and UPS are not ICSID cases, but are proceeding under UNCITRAL rules.

The Suez/Vivendi Tribunal recognized that virtually all cases of investment treaty arbitration under ICSID involve matters of public interest. The tribunal also reasoned that this case involves a particular public interest, as the dispute centers around the water distribution and sewage systems of a large metropolitan area. The tribunal added that, "these systems provide basic public services to millions of people and as a result may raise a variety of complex public and international law questions, including human rights considerations." The Suez/Vivendi tribunal concluded that any decision rendered in this case has the potential to affect the public.

On the question of access to documentation in the case, the Suez/Vivendi Tribunal decided to defer its decision until such time as it may grant leave to a particular nondisputing party to file an amicus curiae brief. The tribunal reasoned that the purpose in seeking access to the record is to enable a nonparty to act as amicus in a meaningful way. However, it will be hard--if not impossible--for a prospective applicant to offer amicus assistance to the tribunal when the record is secret. More significantly, transparency and access to documentation serve other critical purposes in a democratic society, such as enabling the free flow of information and ideas.

In regards to hearings, the Suez/Vivendi Tribunal decided to maintain them closed to the public. Although the tribunal recognized certain inherent powers with respect to the arbitral procedure, as argued in the NGOs' petition, the tribunal reasoned-based on the arbitration rules-that it could not exercise those powers if one of the parties objects. The tribunal's decision highlights certain inadequacies of ICSID's arbitration rules and the urgent need of reform, as suggested by the ICSID Secretariat. (See para. 15, http://www.worldbank.org/icsid/improve-arb.pdf)

• The Spanish version of the decision can be found here

• The English version of the decision can be found here

For further information, please contact:

Gustavo Maurino (ACIJ), ++ 54 911 5624 2334.
Horacio Bersten (Unión de Usuarios y Consumidores), ++ 54 911 4400 7035.
Víctor Abramovich (CELS), ++ 54 9 11 5638 3107.

Marcos Orellana (CIEL), ++ 1 202 785 8700.