February 24, 2007
On February 12, 2007, the ICSID Tribunal hearing the Suez/Vivendi case decided to allow a coalition of NGOs to submit an amicus curiae brief, despite objections by the claimant. The decision sets a landmark precedent by recognizing the public interest involved in this water-related investment arbitration, which will influence water concessions around the world. In addition, the Suez/Vivendi Tribunal’s decision makes a key contribution to introducing greater openness in international investment arbitration, which has been traditionally inaccessible to civil society.
The decision came in response to a request presented in December 2006 by four 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, and the Unión de Usuarios y Consumidores, and the Center for International Environmental Law (CIEL).
In their request, the NGOs described how their expertise on human rights and sustainable development, including the right to water and access to essential services, could provide the Tribunal with arguments and perspectives that would assist it in its jurisdictional task. The coalition observed that the controversy involved measures of general application that concern the way in which citizens enjoy access to an essential public service — drinking water and sanitation – and that raise important issues
of human rights.
In its earlier decision of May 19, 2005 regarding transparency and participation, the Suez/Vivendi Tribunal had pointed out that virtually all cases of investment treaty arbitration under ICSID involve matters of public interest. The tribunal had also noted that the dispute centers on the water distribution and sewage systems of a large metropolitan area, and concluded 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.”
In response to the NGO request, the Tribunal’s decision further underscored the public interest involved in the Suez/Vivendi case. The Tribunal observed that its “forthcoming decision may have some influence on how governments and foreign investor operators of the water industry approach concessions and interact when faced with difficulties”.
While the Suez/Vivendi’s Tribunal’s decision makes a critical contribution to the democratization of international dispute
settlement, it falls short of securing the transparency required, because the Tribunal decided to deny access to the arbitration record to the NGO coalition. The Tribunal reasoned that the amicus curiae brief would address general issues and that the petitioners have sufficient information to carry out this task even without being granted access to the record. The denial will inevitably limit the NGO coalition’s understanding of the facts and legal issues involved in the case and thus the degree to which the amicus curiae brief can contribute to the proper resolution of the dispute. Furthermore, while the Tribunal’s evaluation regards the circumstances of the case and is not a declaration of principle, its denial of access to the record fails to secure the right to access to information, which is central to the proper functioning of a democratic society.
For more information, please contact Marcos Orellana.