AMICUS CURIAE SUBMISSION OF: The Lawyers' Environmental Action Team (LEAT), The Legal and Human Rights Centre (LHRC), The Tanzania Gender Networking Programme (TGNP), The Center for International Environmental Law (CIEL), The International Institute for Sustainable Development (IISD)

This amicus curiae submission, filed by a coalition of legal and environmental organizations, argues that the investor Biwater Gauff (Tanzania) Limited failed to meet its professional and legal responsibilities during the privatization of water services in Dar es Salaam. The submission contends that the investor's failure to conduct proper due diligence and its potential use of a 'renegotiation strategy'—bidding low to win a contract with the intent to renegotiate terms later—should preclude it from seeking compensation for the contract's termination by the Government of Tanzania.

• The submission argues that Bilateral Investment Treaties (BITs) are not intended to protect investors from their own poor business decisions or normal commercial risks, citing case law that BITs are not "insurance policies against bad business judgments".
• Amici assert that investors have a legal duty to apply proper business standards and due diligence. In this case, they claim the Claimant failed to identify critical risks, such as discrepancies in retirement ages between the DAWASA staff handbook and the Public Service Retirement and Benefits Act, and failed to uncover a court case from 2000 regarding staff redundancies.
• The document alleges that the Claimant submitted a bid that was not commercially viable, proposing the minimum operator tariff and understating unit costs. For example, the Bid Form forecast electricity unit costs at 26 Tshs m3, while the Claimant's own technical projections indicated 71 Tshs m3.
• Amici present evidence of poor operational performance by the Claimant, including a 47 percent shortfall in new meter installations (8,751 installed vs 16,500 targeted) and a 60 percent shortfall in new water connections (400 added vs 1,000 targeted) in the first year.
• The submission suggests the Claimant may have employed a 'renegotiation strategy,' which involves 'opportunistic' or 'aggressive' bidding to win a concession with the expectation of later forcing a renegotiation of tariffs or investments.
• To support the claim of a renegotiation strategy, Amici note that the Claimant sought an interim tariff review in August 2004 and proposed revisions to lease terms in December 2004 and January 2005, approximately 16 months after the contract began.
• The Claimant's demands during renegotiation included a five-year contract extension to ensure financial viability, reduced collection targets, a reduction in employee levels by nearly one-third, and an increased operator tariff.
• Amici argue that the provision of water is linked to fundamental human rights and sustainable development, which should increase the standard of responsibility for investors. They cite the Millennium Development Goals and the UN Committee on Economic, Social and Cultural Rights' declaration of a right to water.
• The submission contends that the Government of Tanzania was justified in terminating the contract on 13 May 2005 to prevent further deterioration of water services and to fulfill its international obligations under the African Charter on the Rights and Welfare of the Child and the Convention on the Rights of the Child.
• Amici conclude that if a renegotiation strategy is proven, it constitutes bad faith and 'unconscionable conduct,' which should lead the Tribunal to dismiss the claims based on a lack of jurisdiction or justiciability, or at minimum, reduce the damages award.

APA

Center for International Environmental Law (2007). AMICUS CURIAE SUBMISSION OF: The Lawyers' Environmental Action Team (LEAT), The Legal and Human Rights Centre (LHRC), The Tanzania Gender Networking Programme (TGNP), The Center for International Environmental Law (CIEL), The International Institute for Sustainable Development (IISD). https://www.ciel.org/wp-content/uploads/2015/03/Biwater_Amicus_26March.pdf

Chicago

Center for International Environmental Law. AMICUS CURIAE SUBMISSION OF: The Lawyers' Environmental Action Team (LEAT), The Legal and Human Rights Centre (LHRC), The Tanzania Gender Networking Programme (TGNP), The Center for International Environmental Law (CIEL), The International Institute for Sustainable Development (IISD). 2007. https://www.ciel.org/wp-content/uploads/2015/03/Biwater_Amicus_26March.pdf.

Wikipedia

{{cite report |author=Center for International Environmental Law |title=AMICUS CURIAE SUBMISSION OF: The Lawyers' Environmental Action Team (LEAT), The Legal and Human Rights Centre (LHRC), The Tanzania Gender Networking Programme (TGNP), The Center for International Environmental Law (CIEL), The International Institute for Sustainable Development (IISD) |date=26 March 2007 |url=https://www.ciel.org/wp-content/uploads/2015/03/Biwater_Amicus_26March.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{centerforinternationalenvironmentallaw2007amicus, author = {{Center for International Environmental Law}}, title = {{AMICUS CURIAE SUBMISSION OF: The Lawyers' Environmental Action Team (LEAT), The Legal and Human Rights Centre (LHRC), The Tanzania Gender Networking Programme (TGNP), The Center for International Environmental Law (CIEL), The International Institute for Sustainable Development (IISD)}}, institution = {Center for International Environmental Law}, year = {2007}, month = mar, url = {https://www.ciel.org/wp-content/uploads/2015/03/Biwater_Amicus_26March.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }