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Non-Disputing Parties’ Rights in Investor-State Dispute Settlement: The Application of the Monetary Gold Principle

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Private Actors in International Investment Law

Part of the book series: European Yearbook of International Economic Law ((Spec. Issue))

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Abstract

Commercial arbitration is, by design, a private forum for the settlement of legal disputes between private parties. Confidentiality has been one of its overarching features and fundamental principles. Yet, the rise of the state as a commercial actor in the last century has led to an evolution in the arbitration process to accommodate and resolve disputes at the intersection between private and public law. Today, while investor-state dispute settlement (“ISDS”) is recognized as a system distinct from commercial arbitration, confidentiality still plays a role in the ISDS process. As a result, non-disputing parties (“NDPs”) affected by the outcome of ISDS are generally restricted from participating meaningfully in the process.

This note examines the position of NDPs in ISDS. It surveys the rules of procedures and the jurisprudence of some of the major international courts and tribunals to shed light on the main differences between intervention as original disputing party and participation as amicus curiae, and the treatment they both receive under public international law and in ISDS. The note further explores the viability of applying the Monetary Gold Principle (“MGP”) in the ISDS context to enable NDPs to participate and represent their interests in the process. Finally, the note concludes with a brief reflection on the place of NDPs in the ongoing ISDS reform efforts.

All views expressed herein are solely those of the authors, and nothing in this chapter should be read or interpreted as representing the positions of Georgetown University Law Center or Dechert LLP.

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Notes

  1. 1.

    See Van Harten (2007), Franck (2005), Douglas (2003), Smeureanu (2011).

  2. 2.

    Mr. Hassan Awdi, Enterprise Business Consultants, Inc. and Alfa El Corporation v. Romania, ICSID Case No. ARB/10/13, Award, 2 March 2015.

  3. 3.

    Copper Mesa Mining Corporation v. Republic of Ecuador, PCA No. 2012-2, Award, 15 March 2016; Joint Motion for Stay of the Pending Completion of Settlement Agreement, 25 July 2018.

  4. 4.

    Dan Cake S.A. v. Hungary, ICSID Case No. ARB/12/9, Decision on Jurisdiction and Liability, 24 August 2015.

  5. 5.

    Border Timbers Limited, Border Timbers International (Private) Limited, and Hangani Development Co. (Private) Limited v. Republic of Zimbabwe, ICSID Case No. ARB/10/25, Decision on the Applicant’s Application for Provisional Measures, 17 March 2016.

  6. 6.

    Eli Lilly and Company v. The Government of Canada, UNCITRAL, ICSID Case No. UNCT/14/2, Final Award, 16 March 2017; Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, UNCITRAL, PCA Case No. 2009-23, Third Interim Award on Jurisdiction and Admissibility, 27 February 2012.

  7. 7.

    TransCanada Corporation and TransCanada PipeLines Limited v. The United States of America, ICSID Case No. ARB/16/21, Order of the Secretary-General Taking Note of the Discontinuance of the Proceeding, 24 March 2017; Copper Mesa Mining Corporation v. Republic of Ecuador, PCA No. 2012-2, Award, 15 March 2016; Joint Motion for Stay of the Pending Completion of Settlement Agreement, 25 July 2018.

  8. 8.

    Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, UNCITRAL, PCA Case No. 2009-23, Third Interim Award on Jurisdiction and Admissibility, 27 February 2012; Border Timbers Limited, Border Timbers International (Private) Limited, and Hangani Development Co. (Private) Limited v. Republic of Zimbabwe, ICSID Case No. ARB/10/25, Decision on the Applicant’s Application for Provisional Measures, 17 March 2016.

  9. 9.

    Eli Lilly and Company v. The Government of Canada, UNCITRAL, ICSID Case No. UNCT/14/2, Final Award, 16 March 2017; Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, UNCITRAL, PCA Case No. 2009-23, Third Interim Award on Jurisdiction and Admissibility, 27 February 2012. See generally Columbia Center on Sustainable Investment, Annual Meeting of ACPIL - Written Views regarding UNCITRAL Working Group III, 23 May 2019.

  10. 10.

    Blackaby and Richard (2009), Cotula and Perrone (2019), Cross and Schliemann-Radbruch (2013), Fach Gómez (2012), Van Harten (2007).

  11. 11.

    See Methanex v. United States, UNCITRAL, Decision of the Tribunal on Petitions from Third Persons to Intervene as “amici curiae”, 15 January 2001, para. 36. The tribunal decided that “[a]s envisaged by the Tribunal, the Petitioners would make their submissions in writing, in a form and subject to limitations decided by the Tribunal. The Petitioners could not adduce the evidence of any factual or expert witness […]”. See also United Parcel Service of Am., Inc. (UPS) v. Canada (NAFTA/UNCITRAL), Decision of Tribunal on Petitioner for Intervention and Participation as Amici Curiae, 17 October 2001, para. 69. The tribunal stated that: “The power of the Tribunal to permit amicus submissions is not to be used in a way which is unduly burdensome for the parties or which unnecessarily complicates the Tribunal process”.

  12. 12.

    Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to A Petition for Transparency and Participation as Amicus Curiae, 19 May 2005, para. 13.

  13. 13.

    Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 933, art. 62

  14. 14.

    Rule 44.3(a) of the ECtHR Rules, as amended by the Court on 7 July 2003, 13 November 2006 and 19 September 2016.

  15. 15.

    Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 933, art. 34.2.

  16. 16.

    Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia/Peru), I.C.J. Reports 1950, p. 266.

  17. 17.

    Observation of the International Civil Aviation, 4 December 1992, available at: https://www.icj-cij.org/files/case-related/79/9699.pdf.

  18. 18.

    International Status of South-West Africa Advisory Opinion of July 11th 1950, I.C.J. Reports 1950, p. 6.

  19. 19.

    See Sands et al. (1999).

  20. 20.

    The European Convention for the Protection of Human Rights and Fundamental Freedoms as modified by Protocol 11 in 1998, provides that: “The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings”.

  21. 21.

    Rule 149 of the ICC Rules.

  22. 22.

    Rule 74 of the ICTY Rules provides that: “A Chamber may, if it considers desirable for the proper determination of the case, invite, or grant leave to a State, organization or person to appear before it and make submissions on any issue specified by the Chamber”.

  23. 23.

    ICTY Information Concerning the Submission of Amicus Curiae. Available at: http://www.icty.org/x/file/Legal%20Library/Miscellaneous/it122_amicuscuriae_briefs_en.pdf.

  24. 24.

    Prosecutor v. Dusko Tadix a/k/a”DULE”, Trial Chamber Order Denying Leave to Appear as Amicus Curiae, 20 November 1996.

  25. 25.

    The Prosecutor v. Tihomir Blaskic, Trial Chamber Order Submitting the Matter to Trial Chamber II and Inviting Amicus Curiae, 14 March 1997.

  26. 26.

    The Prosecutor v. Tihomir Blaskic, Trial Chamber Orders Granting Leave to Appear as Amicus Curiae, 11 April 1997.

  27. 27.

    ICTY Press Release: Milosevic Case: The Registrar Appoints a Team of Experienced International Lawyers as Amicus Curiae to Assist the Trial Chamber.

  28. 28.

    Rule 74 of the ICTR Rules.

  29. 29.

    See Articles 10.2 and 17.4 of the Dispute Settlement Understanding of the WTO.

  30. 30.

    See US – Lead and Bismuth II, Appellate Body Report, May 10, 2000, para. 41.

  31. 31.

    See Methanex v. United States, Final Award of the Tribunal on Jurisdiction and Merits, 3 August 2005, para. 28; See also United Parcel Service of Am., Inc. (UPS) v. Canada (NAFTA/UNCITRAL), Award on the Merits, 24 May 2005, para. 4.

  32. 32.

    Chevron Corporation (U.S.A.) and Texaco Petroleum Corporation (U.S.A.) v. Republic of Ecuador [II], PCA Case No. 2009-23, Procedural Order No. 8, 18 April 2011 para. 17.

  33. 33.

    AS Norvik Banka and others v. Republic of Latvia, ICSID Case No. ARB/17/47, Procedural Order No. 3, 30 October 2018, para. 59.

  34. 34.

    Infinito Gold Ltd. v. Republic of Costa Rica, ICSID Case No. ARB/14/5, Procedural Order No. 2, 1 June 2016, paras 47–48.

  35. 35.

    Timbers Limited, Border Timbers International (Private) Limited and Hangani Development Co. (Private) Limited v. Republic of Zimbabwe, ICSID Case No. ARB/10/25, Procedural Order No. 2, 26 June 2012, para. 63.

  36. 36.

    Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A v. Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae, 19 May 2005, para. 6.

  37. 37.

    Article 62 of the ICJ Statute provides: “(1) Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene. (2) It shall be for the Court to decide upon this request”.

  38. 38.

    Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America) (Preliminary Question), Judgment, 15 June 1954, I.C.J. Reports 1954.

  39. 39.

    Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America) (Preliminary Question), Judgment, 15 June 1954, I.C.J. Reports 1954, pp. 10–12.

  40. 40.

    Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America) (Preliminary Question), Judgment, 15 June 1954, I.C.J. Reports 1954.

  41. 41.

    Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America) (Preliminary Question), Judgment, 15 June 1954, I.C.J. Reports 1954.

  42. 42.

    Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America) (Preliminary Question), Judgment, 15 June 1954, I.C.J. Reports 1954; Agreement between the Governments of the French Republic, the United Kingdom of Great Britain and Northern Ireland and the United States of America for the Submission to an Arbitrator of Certain Claims with Respect to Gold Looted by the Germans from Rome in 1943.

  43. 43.

    Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America) (Preliminary Question), Judgment, 15 June 1954, I.C.J. Reports 1954, p. 6.

  44. 44.

    Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America) (Preliminary Question), Judgment, 15 June 1954, I.C.J. Reports 1954, p. 7.

  45. 45.

    Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America) (Preliminary Question), Judgment, 15 June 1954, I.C.J. Reports 1954, p. 7.

  46. 46.

    Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America) (Preliminary Question), Judgment, 15 June 1954, I.C.J. Reports 1954, p. 7.

  47. 47.

    Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America) (Preliminary Question), Judgment, 15 June 1954, I.C.J. Reports 1954, p. 17.

  48. 48.

    See Continental Shelf (Libyan Arab Jarnahiriya/Malta), Application for Permission to Intervene, Judgment, I. C. J. Reports 1984, p. 25, para. 40; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I. C. J. Reports 1984, p. 431, para. 88; Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I. C. J. Reports 1986, p. 579, para. 49; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I. C. J. Reports 1990, pp. 114–116, paras. 54–56, and p. 112, para. 73; and Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I. C. J. Reports 1992, pp. 259–262, paras. 50–55.

  49. 49.

    Case Concerning East Timor (Portugal v. Australia), Judgment of 30 June 1995, I. C. J. Reports 1995, para. 33.

  50. 50.

    Bridgestone Licensing Services, INC., Bridgestone Americas, INC. v. Republic of Panama, ICSID Case No. ARB/16/34, Panama’s Expedited Objections Pursuant to Article 10.20.5 of the Panama-U.S. Trade Promotion Agreement, 30 May 2017; Ping An Life Insurance Company of China, Limited and Ping An Insurance (Group) Company of China, Limited v. Kingdom of Belgium, ICSID Case No. ARB/12/29, Award, 30 April 2015, paras 127–129.

  51. 51.

    Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, UNCITRAL, PCA Case No. 2009-23, Third Interim Award on Jurisdiction and Admissibility, 27 February 2012, Part III – paras 3.34–3.39.

  52. 52.

    Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, UNCITRAL, PCA Case No. 2009-23, Third Interim Award on Jurisdiction and Admissibility, 27 February 2012, Part III, Paras 3.83–3.86.

  53. 53.

    Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, UNCITRAL, PCA Case No. 2009-23, Third Interim Award on Jurisdiction and Admissibility, 27 February 2012, Part IV Paras 4.59–4.71.

  54. 54.

    Tolley (1989), pp. 561–585.

  55. 55.

    This also consistent with the Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, International Law Commission, United Nations (2001).

  56. 56.

    Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I. C. J. Reports 1984, p. 431, para. 88.

  57. 57.

    See Summary Comments to the Proposals for Amendment of the ICSID Arbitration Rules, Submitted by International Institute for Sustainable Development, 15 March 2019. Available at: https://www.iisd.org/library/summary-comments-proposals-amendment-icsid-arbitration-rules.

  58. 58.

    ICSID Secretariat, Proposals for Amendment of the ICSID Rules, Working Paper 4, Volume 1, English, February 2020, Rule 67, p. 67.

  59. 59.

    Submission of the Governments of Ecuador to UNCITRAL Working Group III, Thirty-Eight Session, Vienna, 14–18 October 2019, paras 23–26; and Submission of the Governments of Chile, Israel, Japan, Mexico and Peru to UNCITRAL Working Group III, Thirty-Eight Session, Vienna, 14–18 October 2019, p. 7.

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  1. Georgetown University Law Center, Washington, DC, USA

    Alvaro Galindo

  2. Dechert LLP, Washington, DC, USA

    Ahmed Elsisi

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  1. Alvaro Galindo
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  2. Ahmed Elsisi
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Correspondence to Alvaro Galindo .

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  1. University of Zaragoza, Zaragoza, Spain

    Katia Fach Gómez

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Galindo, A., Elsisi, A. (2021). Non-Disputing Parties’ Rights in Investor-State Dispute Settlement: The Application of the Monetary Gold Principle. In: Fach Gómez, K. (eds) Private Actors in International Investment Law. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-48393-7_11

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