The Guide for Potential Amici in International Investment Arbitrations

January 29, 2014

Today, the Center for International Environmental Law (CIEL) and the International Human Rights Program at the University Of Toronto Faculty Of Law announce the publication of a new tool to aid non-governmental organizations defending  the public interest in international investment litigation. The Guide for Potential Amici in International Investment Arbitrations explains when and how NGOs can strategically intervene as a third party in international investment arbitrations as an amicus curiae (friend of the court). The guide also provides background on why international investment disputes arise, the ways in which human rights can be implicated, and how amicus curiae can bolster human rights in investment disputes.

In particular, the Guide for Potential Amici focuses on the potential of filing amicus submissions at the International Centre for Settlement of Investment Disputes (ICSID), which specializes in disputes between governments and companies. These investor-state disputes are most often governed by trade agreements and ICSID acts as an arbiter. ICSID proceedings are, however, notoriously opaque. As amici, NGOs can highlight human rights concerns and direct the tribunal’s attention to issues relating to the public interest. Amicus submissions are powerful tools allowing NGOs to present legal arguments in defense of public interest to counterbalance the power and influence of corporations.

“Amicus briefs are a primary vehicle to enable due consideration of international human rights norms in the investment treaty context,” said Marcos Orellana, CIEL Senior Attorney. “This guide gives communities and NGOs the tools to become active participants in the arbitration process.”

“In the case of Pacific Rim v. El Salvador, the amicus filed by CIEL on behalf of El Salvador was a huge support in presenting the legal foundation backing the Salvadoran people’s right to a healthy environment,” said Saúl Baños of the National Roundtable Against Metallic Mining in El Salvador.

“The considerations and tools in this guide should be the basis for anyone contemplating submitting an amicus for ICSID arbitration,” said Manuel Perez-Rocha, associate fellow at the Global Economy Project at the Institute for Policy Studies. “My thanks to the authors for putting power back into the hands of those defending the public interest from investor-state suits under bilateral trade agreements and free trade agreements.”