Civil Society in Investment Treaty Arbitration
Farouk El-HossenyIn 2001, the tribunal in Methanex v. the United States allowed three civil soci-
ety organizations1 to submit written briefs as amici curiae, i.e. as ‘friends of
the court’ and non-disputing third parties. The two sole parties to this arbitra-
tion were Methanex, a Canadian methanol producer, on the one hand; and the
United States, a North American Free Trade Agreement (nafta) contracting
party, on the other. The applicable law, i.e. nafta Chapter xi, and the applica-
ble procedural rules, i.e. the 1976 uncitral Arbitration Rules, do not contain
any explicit provision that entitles arbitral tribunals to accept amicus curiae
briefs. Notwithstanding the legal void, the Methanex tribunal relied on its dis-
cretionary procedural powers to accept these amicus submissions. It based
its decision on interlocking procedural and substantive considerations. With
respect to the latter, the tribunal stated that ‘there is an undoubtedly public
interest in this arbitration. The substantive issues extend far beyond those raised
by the usual transnational arbitration between commercial parties’.
The decision to accept the amicus submissions in Methanex set an impor-
tant precedent. It paved the way for civil society’s intervention as amicus cur-
iae in similar investment treaty disputes where broader public interest issues
were at stake. The Methanex decision shows that, in light of the multiplicity
and complexity of the public interest issues at stake, investor-state tribunals
need to reach a holistic understanding of the underlying factual and legal is-
sues in order to ‘arrive at a correct decision’ and that, therefore, intervention
by a ‘friend of the court’ could not just enhance the legitimacy of proceedings,
but also provide useful input.3 Since Methanex, the acceptance of amicus in-
tervention has nowadays largely become uncontroversial or, to say the least,
straightforward. That said, it is subject to intricate and clearly defined rules
and conditions as will be shown in this book.