The role of amicus curiae in investment disputes: striking a balance between confidentiality and broader policy considerations

Over the past ten years, arbitrators in investment disputes became increasingly flexible in allowing non-parties (such as members of the civil society) to participate (even if under strict conditions) as amici curiae, in order to incorporate broader policy considerations (and public concerns) into the dispute resolution process. This trend can be read as a limited departure from the traditional confidential and private regime as it introduces a transparency measure into arbitral proceedings; it is also reflected in certain arbitral rules (under ICSID Rule 37 comma 2, for example, third parties may be allowed to file amicus submissions subject to certain requirements). The increase in and diversification of third parties seeking amicus curiae standing raises complex questions regarding the kind and the the nature of the interests that third parties may represent, the potential benefits and negative side-effects of their involvement, as well as the different forms that their participation should take in the future. Such questions, which will be treated also in the light of the recent developments of international investments law, will be the topic of this chapter of the volume.