Contents
Concepts and Definitions 6
The Concept of ‘Civil Society’ 7
‘Amicus Curiae’ and ‘Third Party Intervention’ Procedures 16
Approach and Methodology 20
Approach 20
Methodology 24
Structure 27
Introductory Remarks 33
Identifying the ‘Public Interest’ in an Investor-State Arbitration Context 36
A Structural Stress Test: ‘Public Interest’ Pressure on Foreign Investors’ Rights and Host States’ Obligations 37
Plenty of ‘Hard Law’ Rights, Few ‘Soft Law’ Obligations: A Look at the International Framework on Foreign Investment Protection 45
Earlier Examples of Public Interest Issues Raised in Investor-State Disputes 61
Adjudication à sens unique? Some of the Earlier Criticism of Investor-State Tribunals’ Awards 69
Impact of the International Commercial Arbitration Model on Investor-State Arbitration and Civil Society’s Role 80
Procedural Rules Governing Civil Society’s Participation as Amicus Curiae 96
Acceptance of Civil Society’s Participation as Amicus Curiae 97
Formalization of Amicus Curiae Participation – The Opening Up to ‘Third Persons’ 105
From Theory to Practice: Investor-State Tribunals’ Decisions on Amicus Curiae Participation 119
Earlier Tribunals Inspired by the Methanex Precedent 119
Tribunals That Applied Amended and Recently-Adopted Rules 127
3.3 Common (Procedural) Grounds 133
Civil Society Participation: Where Procedure Intertwines with Substance 133
Are Environmental Protection and Human Rights Issues Relevant to the Adjudication of Investor-State Disputes? 135
The Leitmotiv of Environmental Protection 139
Civil Society as a Human Rights Advocate 146
Representing the Under-Represented: Civil Society and Indigenous Groups 164
An Appraisal of Civil Society’s Amicus Curiae Role 175
Procedural Developments: Amicus Curiae Intervention Crystallized 175
‘Mixed Results’ – Do Investor-State Tribunals Consider Amici’s Substantive Arguments? 178
Concluding Remarks 180
Introductory Remarks 185
Absent, but Not Entirely: Indirect Participation at the icj 186
Contentious Proceedings 187
Advisory Proceedings 188
Standing before International Human Rights Jurisdictions 192
Civil Society as a Victim of Human Rights Violations before the ECtHR 193
Representation of Victims of Human Rights Violations before the IACtHR and achpr 197
A ‘Friend of the Court’ outside the Realm of Investor-State Arbitration 206
The Amicus Curiae Procedure – A Common Law Inspiration 207
wto Panels and the Appellate Body’s Restrictive Approach 211
International Human Rights Jurisdictions’ Liberalism 224
The Peculiar Case of Third Party Intervention 228
Third Party Intervention – A Look at the us Model 228
Third Party Intervention as Practiced before International Jurisdictions 235
Towards a Common Understanding of ‘Third Party Intervention’? 247
Concluding Remarks 247
Introductory Remarks 251
Transcending Amicus Curiae Submissions 251
The Inherent Limitations of the Amicus Curiae Role – A Comparative Perspective 251
To be an Amicus or Not to be: Fundamental Differences with Third Party Intervention 253
Looking for a Procedure to Uphold Third Parties’ Direct Interest in Investor-State Arbitration 254
The Impossibility of ‘Adding Strangers to the Arbitration’ – UPS v. Canada 254
Extreme Circumstances, Standard Limitations – Aguas del Tunari v. Bolivia 260
Jurisdictional Barriers Set by the ups and Bechtel Tribunals 264
The Access to Justice Principle: The Basis for Civil Society’s Third Party Intervention? 265
Access to Justice under International Law 266
Is There a Civil Society Ius Standi before Investor-State Tribunals? 270
What Conditions Would Govern Civil Society’s Third Party Intervention? 277
Rationalizing Civil Society’s Third Party Intervention in Investor-State Arbitration 278
Procedural Void and Substantive Barriers: How to Reconcile Third Party Intervention with the Investor-State Arbitration Regime? 285
Concluding Remarks 293