Two ICSID Tribunals have recently considered the submission of amicus curiae briefs from interested non-governmental organisations (NGOs). In both cases the submission has been allowed, indicating that the recent trend towards greater transparency is continuing.
The first case, Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania (ICSID Case No. ARB/05/22, 2 February 2007), concerned the continuing dispute between Biwater and the Government of Tanzania regarding the alleged expropriation of a contract for the provision of water and sewage services. Five NGOs requested that they be allowed to submit amicus curiae briefs to the Tribunal regarding the dispute. Despite Biwater's objections, the Tribunal decided to allow the NGOs to submit a single submission of no longer than 50 pages. This restriction was placed on the NGOs in order to ensure the submission process did not become overly burdensome on the parties, in terms of delay and cost.
This was the first decision on this issue to be heard under the new ICSID Rules. The Tribunal considered the test set out in Rule 37(2), as well as decisions in other Awards under the previous Rules, and concluded that the contribution of the NGOs would be helpful to the Tribunal in determining the dispute, that the NGOs had the required expertise to make such a submission and that the matter had a particular public-interest element, given the essential nature of the services.
Very similar findings were made in the second case, Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic (ICSID Case No. ARB/03/19, 12 February 2007), in which five NGOs were given permission to make a single submission under the previous ICSID Rules. The reasoning of the Tribunal was similar to that of the Biwater Tribunal above and permission was granted due to the relevant expertise of the NGOs and the public-interest factor inherent in essential services (as well as important issues of international law). Strict parameters were also put in place to ensure that the NGO submission process would not create undue burdens for the parties.
In both cases additional requests from the NGOs for access to relevant documents and to attend the oral hearing were denied.
There is some concern for claimants in investment treaty arbitrations that the acceptance of such briefs on a regular basis could significantly increase the costs of arbitration and create unnecessary delays. While the Tribunals in both of the above cases attempted to limit such consequences, cost and time concerns will continue to be weighed against transparency and public-interest considerations in the debate as to whether amicus briefs from NGOs help or hinder the arbitration process.