1. Amicus Participation in Investment Arbitration
Stephanie Forrest
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2. History of Amicus Participation - Overview
First reported amicus application in 2001 – Methanex v. US
In the absence of any express provisions allowing amicus participation, the Methanex tribunal interpreted its general procedural powers in Article 15(1) of the UNCITRAL Rules to grant permission to the amicus applicants.
Increasing number of amicus applications since.
Followed by new instruments and amendments to institutional rules:
FTC Statement
2006 ICSID Arbitration Rules
UNCITRAL Rules on Transparency
New generation investment treaties (US and Canada Model BITs)

3. Three Trends Identified
Investment tribunals permit amicus participation without any basis for doing so in the institutional arbitral rules or other applicable instrument.
Investment tribunals consider the public interest in the subject-matter of the dispute as a relevant factor for amicus participation.
Amendments to institutional arbitral rules include more detailed provisions for amicus participation.

4. Authority to Allow Amicus Participation?
Institutional arbitral rules with no provisions on amicus
The 1976 and 2010 versions of the UNCITRAL Rules
The ICC Arbitration Rules
The rules of virtually all other international arbitral institutions (with the exception of SIAC Investment Arbitration Rules and 2017 SCC Rules)
Instruments allowing amicus participation
FTC Statement
2006 ICSID Arbitration Rules and Additional Facility Rules
UNCITRAL Rules on Transparency

5. The Public Interest Criterion -
Expressly required by the FTC Statement and UNCITRAL Rules on Transparency
E.g. “Where the Rules on Transparency provide for the arbitral tribunal to exercise discretion, the arbitral tribunal in exercising such discretion shall take into account ... [t]he public interest in transparency in treaty-based investor-State arbitration and in the particular arbitral proceedings.” (Article 1(4)(a):, UNCITRAL Rules on Transparency)
Still considered by some tribunals operating under other instruments:
Methanex v US
Vivendi v Argentina
Biwater Gauff v Argentina
Philip Morris v Uruguay /

6. Methanex v U.S.
“[T]here is an undoubtedly public interest in this arbitration. The substantive issues extend far beyond those raised by the usual transnational arbitration between commercial parties. This is not merely because one of the Disputing Parties is a State: there are of course disputes involving States which are of no greater interest in this arbitration than a dispute between private persons. The public interest in this arbitration arises from its subject-matter … There is also a broader process argument … [the] arbitral process could benefit from being perceived as more open or transparent; or conversely be harmed if seen as unduly secretive. In this regard, the Tribunal’s willingness to receive amicus submissions might support the process in general and this arbitration in particular, whereas a blanket refusal could do positive harm.”
Privileged and Confidential: Attorney-Client Communication

7. 2018 Proposed Amendments to ICSID Arbitration Rules
Two new criteria relating to the independence of the amicus.
New power for the tribunal to make costs orders against the applicant.
Power to order disputing parties to provide case documents to amicus curiae, subject to any objections by the parties.

8. Questions?