Guide for Potential Amici in International Investment Arbitration

The document serves as a manual for NGOs to navigate the process of filing amicus curiae submissions in ICSID proceedings. It explains the legal nature of international investment arbitration, the specific rules (such as Rule 37(2)) governing non-disputing party participation, and the challenges of integrating human rights law into investment disputes. It provides best practices for drafting petitions and submissions, emphasizing the need for legal arguments grounded in applicable law and the importance of demonstrating the petitioner's independence and expertise. The guide also includes several case studies and actual petitions and orders from cases such as Biwater Gauff v. Tanzania and Suez v. Argentina to illustrate the practical application of these rules.

• International investment arbitration typically arises from international investment agreements (IIAs), most commonly bilateral investment treaties (BITs), which provide protections to investors and their investments.
• Human rights issues often struggle to gain traction in investment law, with references to them in treaty texts being "highly unlikely" and sparse in practice.
• There are three primary ways human rights obligations can enter a tribunal's analysis: through explicit reference in the IIA, through a constitutional link between public international law and the host state's municipal legal order (such as monism), or when a blatant violation is deemed incompatible with "transnational public policy".
• ICSID tribunals do not follow a strict system of precedent and are not bound by prior awards, although they may look to existing jurisprudence and scholarly writings for guidance.
• Under ICSID Rule 37(2), a tribunal may allow a non-disputing party to file a written submission if it assists the tribunal in determining a factual or legal issue, addresses a matter within the scope of the dispute, and the party has a significant interest in the proceeding.
• Amici curiae cannot attend oral proceedings without the consent of both disputing parties, as Rule 32(2) gives each party a veto right that the tribunal cannot overrule.
• To maximize effectiveness, amicus petitions should demonstrate the tribunal's discretion to allow third parties, the public interest dimension of the dispute, the suitability (expertise, interest, and independence) of the petitioner, and the desirability of the intervention.
• Effective amicus submissions should avoid purely moral claims and instead use legal arguments grounded in applicable law, such as the principle of systemic integration, to tie human rights norms to investment treaty interpretation.
• In the case of Biwater Gauff v. Tanzania, the tribunal allowed five NGOs to participate as non-disputing parties to file a written submission but denied them access to arbitration documents and the right to attend oral proceedings.
• In Border Timbers et al v. Republic of Zimbabwe, the tribunal denied an amicus application because the petitioners' association with a specific individual gave rise to "legitimate doubts as to the independence or neutrality of the Petitioners".

APA

Miller, B., Liu, J., Wright, R., & Yoo, J. (2014). Guide for Potential Amici in International Investment Arbitration. Center for International Environmental Law. https://ciel.org/Publications/Guide_PotentialAmici_Full_Jan2014.pdf

Chicago

Miller, Benjamin, Jennifer Liu, Ramin Wright, and Jenny Yoo. Guide for Potential Amici in International Investment Arbitration. Center for International Environmental Law, 2014. https://ciel.org/Publications/Guide_PotentialAmici_Full_Jan2014.pdf.

Wikipedia

{{cite report |last1=Miller |first1=Benjamin |last2=Liu |first2=Jennifer |last3=Wright |first3=Ramin |last4=Yoo |first4=Jenny |title=Guide for Potential Amici in International Investment Arbitration |publisher=Center for International Environmental Law |date=January 2014 |url=https://ciel.org/Publications/Guide_PotentialAmici_Full_Jan2014.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{miller2014guide, author = {Miller, Benjamin and Liu, Jennifer and Wright, Ramin and Yoo, Jenny}, title = {{Guide for Potential Amici in International Investment Arbitration}}, institution = {Center for International Environmental Law}, year = {2014}, month = jan, url = {https://ciel.org/Publications/Guide_PotentialAmici_Full_Jan2014.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }