Abstract
In the last decade amicus intervention has become increasingly prevalent in investor-state arbitration. As part of a generalized drive towards transparency, amicus briefs are now routinely submitted in high-profile investor-state arbitrations, which are closely related to public interest issues. Philip Morris v. Uruguay is a notable example of such arbitrations. However, it is often argued that amicus submissions are hardly relevant to investor-state tribunals’ analyses. By first shedding light on the conditions governing the acceptance of amicus briefs, this article looks at how the Philip Morris tribunal admitted such briefs and whether they were at all relevant to the tribunal’s analysis. It thereafter questions the extent to which such relevance may be linked to the tribunal’s findings.
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Notes
Judge James Crawford points out that ‘[a]lmost 3,000 BITs have been signed in the past forty years with remarkably similar provisions, leading some scholars to conclude that they may now express the customary international law standards for foreign investment’. See Crawford et al. (2014), p. 1.
Simma (2011), p. 574.
Ibrahim Shihata, former Secretary-General of the International Centre for Settlement of Investment Disputes (ICSID), asserted that the ICSID Convention ‘provide[s] developing countries with a response which, compared to the Calvo Doctrine, is both more adequate in the depoliticization of disputes and more effective in the encouragement of foreign investment, without inviting the abuses of diplomatic protection’. See Shihata (1986), p. 11.
Nevertheless, even commercial arbitral institutions are taking measures to improve transparency. The International Court of Arbitration of the International Chamber of Commerce (ICC) announced in January 2016 that, for cases registered after 1 January 2016, the Court will publish on its website the names of the arbitrators, their nationalities, their method of appointment and which arbitrator is the tribunal chairperson. See ICC, ‘ICC Court Announces New Policies to Foster Transparency and Ensure Greater Efficiency’, 5 January 2016, available at: http://www.iccwbo.org/News/Articles/2016/ICC-Court-announces-new-policies-to-foster-transparency-and-ensure-greater-efficiency/. Accessed 12 November 2013.
For a summary, see Kaufmann-Kohler and Potestà (2016), pp. 9–15.
‘Tobacco: Last Week Tonight with John Oliver (HBO)’, broadcast on 15 February 2015, available on YouTube.
Ross (2016).
The conclusion of CETA seemed to be marred with uncertainty after Wallonia’s Parliament had blocked its signature by the EU due to concerns over the treaty’s investor-state dispute settlement provisions, which set forth a novel adjudication process by a permanent tribunal as well as an appeal mechanism. The Parliament’s decision was ultimately reversed. The treaty was signed on 30 October 2016. Thomas (2016).
In Metalclad, Mexico requested the tribunal to safeguard the confidentiality of proceedings. See Metalclad Corporation v. United Mexican States, ICSID Case No. ARB(AF)/97/1, Decision on a Request by the Respondent for an Order Prohibiting the Claimant from Revealing Information of 27 October 1997, paras. 2, 9–10.
According to Kauffmann-Kohler and Potestà, the concern over excessive confidentiality in matters of public interest has indeed been one of the first main criticisms raised against the system. See Kaufmann-Kohler and Potestà (2016), p. 14.
Ibid.
Sands (2001), p. 545.
Hillary Clinton said the following on that topic: ‘we need to have a new paradigm for trade agreements that doesn’t give special rights to corporations that workers and NGOs don’t get’. See Tudor (2016).
Bastin (2014), p. 140.
See for example Moore (2006), p. 269.
Maupin (2014), p. 397.
Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Uruguay, ICSID Case No. ARB/10/7, Award, 8 July 2016 (hereinafter: Philip Morris). The tribunal was composed of Prof. Piero Bernardini (Chairman), Judge James Crawford and Mr. Gary Born.
Philip Morris Asia Limited v. The Commonwealth of Australia, UNCITRAL, PCA Case No. 2012-12, Award on jurisdiction and admissibility, dated 17 December 2015 (hereinafter: Philip Morris v. Australia).
Methanex Corporation v. United States, Decision of the Tribunal on Petitions from Third Persons to Intervene as Amici Curiae of 15 January 2001 (hereinafter: Methanex Amicus Decision).
Art. 15(1) of the 1976 UNCITRAL Arbitration Rules provides that: ‘Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case’.
Methanex Amicus Decision, para. 49 (emphasis added).
Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic, ICSID Case No. ARB/03/19 (hereinafter: Suez), Order in Response to a Petition for Transparency and Participation as Amicus Curiae of 19 May 2005.
Suez, Order in Response to a Petition for Participation as Amicus Curiae of 17 March 2006, para. 18.
Ibid., para. 24.
United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius Convention), adopted 10 December 2014, not in force.
See generally, Fortier and Drymer (2003).
Ibid., p. 473 (emphasis added).
ICSID Arbitration Rules, effective as of 10 April 2006.
See ICSID Annual Report (2006), p. 3, available at: https://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDPublicationsRH&actionVal=ViewAnnualReports#. Accessed 12 November 2013.
For an overview of the amendments, see Buckley and Blyschak (2007), pp. 354–355.
Art. 32(2) of the ICSID Arbitration Rules states that: ‘Unless either party objects, the Tribunal, after consultation with the Secretary-General, may allow other persons, besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal, to attend or observe all or part of the hearings, subject to appropriate logistical arrangements’.
Art. 37(2), ICSID Arbitration Rules.
In Bernhard Von Pezold, the tribunal recognized that proceedings may well have an impact on the interests of indigenous communities; however, it dismissed an amicus petition made by the European Centre for Constitutional and Human Rights as well as four Zimbabwean indigenous communities citing doubts over the petitioners’ independence and neutrality vis-à-vis Zimbabwe. See Bernhard Von Pezold and Others v. Republic of Zimbabwe, ICSID Cases No. Arb/10/15 and ARB/10/25, Procedural Order No. 2.
Thomas Wälde argues that ‘third parties, essentially activist NGOs, are allowed to submit amicus briefs […] the introduction of amicus briefs by NGOs, which as a rule oppose the claimant, increases the cost burden on claimants substantially; not only do they have to incur litigation expenditures to raise the claim and rebut the respondent, but they now have to review the amicus briefs and attempt to rebut them’. See Wälde (2010), p. 33.
UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, effective as of 1 April 2014 (UNCITRAL Rules on Transparency).
Methanex Amicus Decision, para. 27.
UN General Assembly, Resolution A/RES/68/109, 16 December 2013.
UNCITRAL, Report of the Working Group II (Arbitration and Conciliation), 46th session, 5–9 February 2007 (A/CN.9/592), para. 61, available at: http://www.uncitral.org/uncitral/en/commission/working_groups/2Arbitration.html. Accessed 12 November 2013.
Ibid., para. 62.
UNCITRAL, Report of the Working Group II (Arbitration and Conciliation), 53rd session, 4–8 October 2010 (A/CN.9/712), para. 2, available at: http://www.uncitral.org/uncitral/en/commission/working_groups/2Arbitration.html. Accessed 12 November 2013).
See Art. 1, UNCITRAL Rules on Transparency.
Art. 6, UNCITRAL Rules on Transparency.
Art. 4(2) of the UNCITRAL Rules on Transparency states that: ‘2. A third person wishing to make a submission shall apply to the arbitral tribunal, and shall, in a concise written statement, which is in a language of the arbitration and complies with any page limits set by the arbitral tribunal: (a) Describe the third person, including, where relevant, its membership and legal status (e.g., trade association or other non-governmental organization), its general objectives, the nature of its activities and any parent organization (including any organization that directly or indirectly controls the third person); (b) Disclose any connection, direct or indirect, which the third person has with any disputing party; (c) Provide information on any government, person or organization that has provided to the third person (i) any financial or other assistance in preparing the submission; or (ii) substantial assistance in either of the two years preceding the application by the third person under this Article (e.g. funding around 20 per cent of its overall operations annually); (d) Describe the nature of the interest that the third person has in the arbitration; and (e) Identify the specific issues of fact or law in the arbitration that the third person wishes to address in its written submission’.
United Parcel Service v. Canada, UNCITRAL, Final Award dated 11 June 2007.
Art. 4(3), UNCITRAL Rules on Transparency.
Art. 4(5) and 4(6), ibid.
Art. 4(3)(b), ibid.
Rule 28(3)(c), SIAC Rules for Investment Arbitration, adopted 1 January 2017.
The FTC is made up of ministerial representatives from NAFTA parties (Canada, Mexico and the US). Its mandate includes the supervision of the implementation of NAFTA and the provision of assistance in resolving disputes arising from its interpretation. It also oversees the work of NAFTA committees, working groups and other bodies.
NAFTA Free Trade Commission, ‘Statement of the Free Trade Commission on Non-disputing Party Participation’, dated 7 October 2003, available at: http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/Nondisputing-en.pdf. Accessed 12 November 2013.
Ibid.
Ibid. (emphasis added).
Methanex Amicus Decision, para. 49.
Section B(9), FTC Statement (emphasis added).
Ibid., Section A(1).
Art. 28(3) of the 2004 US Model BIT: ‘The tribunal shall have the authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party’. See United States of America Bilateral Investment Treaty Model (2004), available at: http://www.ustr.gov/sites/default/files/U.S.%20model%20BIT.pdf. Accessed 12 November 2013.
See United States of America Bilateral Investment Treaty Model (2012), available at: http://www.ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf. Accessed 12 November 2013.
See Art. 10.20(3), Central American Free Trade Agreement, entered into force 1 January 2009, available at: http://www.ustr.gov/sites/default/files/uploads/agreements/cafta/asset_upload_file328_4718.pdf. Accessed 12 November 2013.
See for instance Canada’s most recent BITs with Korea (2015), Honduras (2014), Panama (2013), and Peru (2009). Available at: http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/fta-ale.aspx?lang=eng. Accessed 9 February 2017.
Methanex Amicus Decision, para. 17.
France’s entire comments on the use of the amicus curiae procedure at a UNCITRAL Working Group meeting are as follows: ‘This procedure can be useful for the parties and for the judge, if the intervention of the amicus curiae clarifies the subject under discussion and thus contributes to the quality of the arbitration process and the settlement of the case. The procedure is, however, alien to the French legal tradition. It may, moreover, give rise to abuse and inequalities. Its use should therefore be strictly limited. The intervention of amicus curiae may actually extend a dispute to people not parties to the case. Such an intervention will also entail additional costs, which may be borne by both parties, even though only one party will benefit from the submissions concerned [emphasis added]’. See UNCITRAL, Working Group II (Arbitration and Conciliation)—‘Compilation of Comments by Governments’, 53rd session, 4–8 October 2010 (A/CN.9/WG.II/WP.159/Add.3), at 5, available at: http://www.uncitral.org/uncitral/en/commission/working_groups/2Arbitration.html. Accessed 12 November 2013.
Ibid.
Methanex Amicus Decision, para. 10.
These include Mexico (1999), South Korea (2004), Japan (2007), Peru (2009), Australia (2009) and Colombia (2009). See for instance Art. 11.20(3), Chile-Peru Free Trade Agreement, entered into force 1 March 2009, available at: http://www.direcon.gob.cl/wp-content/uploads/2011/11/TLC-Chile-Per%C3%BA_Parte2.pdf. Accessed 8 February 2017. See also UNCITRAL (2010), Working Group II (Arbitration and Conciliation)—‘Compilation of Comments by Governments’, 53rd session, 4–8 October 2010 (A/CN.9/WG.II/WP.159/Add.4), available at: http://www.uncitral.org/uncitral/en/commission/working_groups/2Arbitration.html. Accessed 8 February 2017.
Malmström (2015), p. 7.
Ibid.
Ibid., p. 8 (emphasis added).
Art. 37(2), ICSID Arbitration Rules, supra n. 34; Art. 4(3), UNCITRAL Rules on Transparency, supra n. 47.
See European Commission, ‘Commission Draft Text TTIP, Chapter II—Investment’, Art. 23(1), available at: http://trade.ec.europa.eu/doclib/docs/2015/september/tradoc_153807.pdf. Accessed 8 February 2017.
These are: Belgium, Canada, Congo, Finland, France, Gabon, Germany, Italy, Luxembourg, Madagascar, Mauritius, the Netherlands, Sweden, Switzerland, Syria, the UK, and the US.
The Mauritius Convention will enter into force upon its ratification by three UN member states.
This mechanism has been considered as a possible way of implementing a reform of the investment treaty arbitration regime. See generally Kaufmann-Kohler and Potestà (2016).
Iberdrola S.A. and Iberdrola Energia. S.A.U. v. Plurinational State of Bolivia, PCA Case No. 2015-05; BSG Resources Limited, BSG Resources (Guinea) Limited and BSG Resources (Guinea) SÀRL v. Republic of Guinea, ICSID Case No. ARB/14/22. The former has been settled, the latter remains pending.
WHO Framework Convention on Tobacco Control (WHO FCTC), adopted on 21 May 2003, entered into force on 27 February 2005.
Art. 11(b) of the Convention provides that: ‘Each Party shall, within a period of three years after entry into force of this Convention for that Party, adopt and implement, in accordance with its national law, effective measures to ensure that […] each unit packet and package of tobacco products and any outside packaging and labelling of such products also carry health warnings describing the harmful effects of tobacco use, and may include other appropriate messages. These warnings and messages: […] (ii) shall be rotating, (iii) shall be large, clear, visible and legible, (iv) should be 50% or more of the principal display areas but shall be no less than 30% of the principal display areas, (v) may be in the form of or include pictures or pictograms’. Ibid. (emphasis added).
See Philip Morris v. Australia.
Philip Morris, Procedural Order No. 3, para. 7.
Art. 37(2)(c), ICSID Arbitration Rules, supra n. 34.
Philip Morris, Procedural Order No. 3, para. 9.
Ibid., Procedural Order No. 3, paras. 10–16.
Ibid., para. 26.
Ibid., para. 28. The tribunal accepted the PAHO’s submission on the same grounds.
Ibid., para. 22.
This principle is actually inspired by WTO Appellate Body case law. In the Hot-Rolled Lead case, the Appellate Body explained that amici curiae, which are non-WTO member States, do not benefit from a substantive right to submit briefs under the WTO Dispute Settlement Understanding in the following terms: ‘Individuals and organizations, which are not members of the WTO, have no legal “right” to make submissions or to be heard by the Appellate Body. The Appellate Body has no legal “duty” to accept or consider unsolicited amicus curiae briefs submitted by individuals or organizations, not members of the WTO’. See WTO, Report of the Appellate Body, United States: Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismut Carbon Steel Products Originating in the United Kingdom, WT/DS138/AB/R (10 May 2000), para. 41.
In UPS v. Canada, the tribunal recognized that a significant public interest was at stake and that it had the discretionary power to accept amicus submissions in accordance with Art. 15(1) of the 1976 UNCITRAL Rules. However, the tribunal clearly emphasized that the acceptance of such briefs is ‘a matter of its power rather than of third party right’. See United Parcel Service v. Canada, Decision of the Tribunal on Petitions for Intervention and Participation as Amicus Curiae of 17 October 2001, para. 61.
Philip Morris, Procedural Order No. 3, para. 31.
See, for instance, Wälde (2010), p. 33.
Ibid., Award, para. 52.
Ibid.
Ibid.
Art. 37(2), ICSID Arbitration Rules, supra n. 34.
Philip Morris, Award, para. 55.
WHO Brief, 28 January 2015.
Procedural Order No. 4, 24 March 2015, paras. 8–9.
Philip Morris, Award, paras. 74–75.
Ibid., para. 138.
Ibid., para. 393.
Ibid., para. 141.
Ibid., para. 306 (emphasis added).
The tribunal also held that Philip Morris brands and other distinctive elements thereof remained visible on cigarette packaging and that the evidence suggested that, even after the adoption of the measures, the claimants’ business had retained sufficient value. See ibid., paras. 286, 307.
Ibid., para. 391; see also para. 407.
Ibid., para. 391 (emphasis added).
Mr. Gary Born partially dissented having concluded that ‘the single presentation requirement must be regarded as arbitrary and disproportionate because it is wholly unnecessary to accomplishing its only stated objective and instead prohibits substantial categories of conduct that do not accomplish that objective. It is that fundamental lack of rationality and proportionality that renders the requirement arbitrary and disproportionate’. See Philip Morris, Concurring and Dissenting Opinion of Mr. Gary Born, para. 196.
The tribunal also rejected the claimants’ argument to the effect that Uruguay had affected its legitimate expectations, since it considered that the claimants could only have expected ‘progressively more stringent regulation’ in light of ‘widely accepted international concern for the harmful effect of tobacco’. See ibid., para. 430.
Ibid., Award, para. 418.
Ibid., para. 307.
Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award dated 24 July 2008, para. 355.
See for instance United Parcel Service v. Canada, supra n. 46.
Francioni (2009), p. 740.
See supra n. 88.
References
Bastin L (2014) Amicus curiae in investor-state arbitration: eight recent trends. Arbitr Int 30:125–144
Brauch M (2016) Philip Morris v. Uruguay: all claims dismissed; Uruguay to receive US$7 million reimbursement. International Institute for Sustainable Development. https://www.iisd.org/itn/2016/08/10/philip-morris-brands-sarl-philip-morris-products-s-a-and-abal-hermanos-s-a-v-oriental-republic-of-uruguay-icsid-case-no-arb-10-7/. Accessed 8 Feb 2017
Buckley R, Blyschak P (2007) Guarding the open door: non-party participation before the International Centre for Settlement of Investment Disputes. Bank Financ Law Rev 22:353–376
Crawford J et al (2014) Foreign investment disputes: cases, materials and commentary. Kluwer Law International, Alphen aan den Rijn
Fortier Y, Drymer S (2003) Third-party intervention and document discovery. J World Invest 4:473–479
Francioni F (2009) Access to justice, denial of justice and international investment law. Eur J Int Law 20:729–748
Jones T (2016) German court rules on nuclear phase-out as Vattenfall award draws near. Global Arbitration Review, 8 December 2016. http://globalarbitrationreview.com/article/1078505/german-court-rules-on-nuclear-phase-out-as-vattenfall-award-draws-near. Accessed 14 Feb 2017
Kaufmann-Kohler G, Potestà M (2016) Can the Mauritius Convention serve as a model for the reform of investor-state arbitration in connection with the introduction of a permanent investment tribunal or an appeal mechanism? Geneva Center for International Dispute Settlement. http://www.uncitral.org/pdf/english/commissionsessions/unc/unc-49/CIDS_Research_Paper_-_Can_the_Mauritius_Convention_serve_as_a_model.pdf. Accessed 9 Feb 2017
Knauer S (2009) Power plant battle goes to international arbitration. Spiegel Online, 15 July 2009. http://www.spiegel.de/international/germany/vattenfall-vs-germany-power-plant-battle-goes-to-international-arbitration-a-636334.html. Accessed 8 Feb 2017
Lavranos N (2016) The deafening silence of the anti-ISDS groups after the Philip Morris decision. Kluwer Arbitration Blog, 24 February 2016. http://kluwerarbitrationblog.com/2016/02/24/the-deafening-silence-of-the-anti-isds-groups-after-the-philip-morris-decision/. Accessed 8 Feb 2017
Malmström C (2015) European Commission investment in TTIP and beyond—the path for reform: enhancing the right to regulate and moving from current ad hoc arbitration towards an investment court, 5 May 2015. http://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.PDF. Accessed 8 Feb 2017
Maupin J (2014) Public and private in international investment law: an integrated systems approach. Va J Int Law 54:368–436
Moore A (2006) Are amici curiae the proper response to the public’s concerns on transparency in investment arbitration? Law Pract Int Courts Trib 5:257–271
Ross A (2016) Arbitration will survive—but avoid hubris, warns Veeder’. Global Arbitration Review, 20 January 2016. http://globalarbitrationreview.com/article/1035066/arbitration-will-survive-%E2%80%93-but-avoid-hubris-warns-veeder. Accessed 14 Feb 2017
Sands P (2001) Turtles and torturers: the transformation of international law. N Y Univ J Int Law Politics 33:527–560
Shihata I (1986) Towards a greater depoliticization of investment disputes: the role of ICSID and MIGA. ICISID Review 1:1–25
Simma B (2011) Foreign investment arbitration: a place for human rights? Int Comp Law Q 60:573–596
Thomas D (2016) Canada and EU sign controversial trade deal. Global Arbitration Review, 31 October 2016. http://globalarbitrationreview.com/article/1070109/canada-and-eu-sign-controversial-trade-deal. Accessed 14 Feb 2017
Tudor O (2016) Clinton & Sanders show the way on ‘trade’ agreements. Touch Stone, 24 April 2016. http://touchstoneblog.org.uk/2016/04/us-democrats-show-way-trade-agreements/. Accessed 14 Feb 2017
Wälde T (2010) Procedural challenges in investment arbitration under the shadow of the dual role of the state: asymmetries and tribunals’ duty to ensure, pro-actively, the equality of arms. Arbitr Int 26:3–42
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This article is partly based on Farouk El-Hosseny’s PhD thesis (entitled ‘The Role of Civil Society in Investment Treaty Arbitration: Status and Prospects’) which was defended at Leiden University in May 2016.
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El-Hosseny, F., Vetulli, E.H. Amicus Acceptance and Relevance: The Distinctive Example of Philip Morris v. Uruguay . Neth Int Law Rev 64, 73–94 (2017). https://doi.org/10.1007/s40802-017-0077-2
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DOI: https://doi.org/10.1007/s40802-017-0077-2