It has its roots in the Roman law and means a learned, respected, independent appointee of the Court whose role is to advise and assist the Court in reaching a just decision. Gradually, it has developed into a counter balancing mean in respect of adversarial nature of proceedings. At present, its primary objective in legal disputes relating to investments is to represent a trade association or a public advocacy group to influence the outcome of a decision.
Presently, its utility and convenience has become more relevant in the investment arbitrations. Thus in order to regulate non-party interventions, the concept was introduced in arbitration conventions.1 Now for investor state disputes, the doors for intervening parties have been opened. The purpose is more transparency in litigation related to public interest. One can review the structure of amici curiae under International Convention on the Settlement of Investment Disputes [ICSID], where it looks to be a blend of original Roman concept and the modern common law understanding, the related provisions of ICSID Convention read:
"In determining whether to allow such a filing, the tribunal shall consider, among other things, the extent to which: (a) the non-disputing party submission would assist the tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties; [.....] (c) the non-disputing party has a significant interest in the proceeding".2
As regards the use of amicus curiae, a less lively debate exists in the international commercial arbitration. And the ongoing attitudes raise a question whether or not the institution of amici curiae is suitable to international commercial arbitration.
Contrary to the above, the arbitration practices show and speak quite differently. Recently, in rules relating to commercial arbitration intervention of non-parties in proceedings has been explicitly included. For instance, the Code of the Court of Arbitration of Sport provides provisions on joinder and intervention, and expressly refers to the amicus curiae.3 Similarly, the Swiss Rules of International Arbitration provide that "one or more [third] persons may request to participate in arbitral proceedings already pending under the rules"4, by changing the terminology of its text from "a third party" to "persons". These rules discretely open the door to interventions of non-parties too.5 The arbitral tribunal's power to accept amicus curiae can be inferred from the general provision included in the recently revised rules granting the arbitral tribunals significant powers when it comes to the management of the proceedings.6
The raised moot point is whether or not a specific provision on an amicus curiae be generally incorporated in arbitration rules [other than those] explicitly designed for investment arbitration disputes.
Investment arbitration determines state liability and public policies,7 and in this background it was deemed necessary that third party intervention be allowed to meet the ends of Justice and to allow transparency while guaranteeing the political legitimacy of the process. It may thus be noted that arbitration rules such as ICC, LCIA and UNCITRAL are actually intended for a larger group of users and for a broader spectrum of disputes. Generally the commercial arbitration rules contain enough procedural provisions granting arbitral tribunal broad powers to manage procedural steps necessary for the proceedings.8 Suffice it to say that under the rules a tribunal has the "duty to adopt procedures suitable to the circumstances of the arbitration".9 An arbitral tribunal may adopt such procedural measures as it considers appropriate provided that they are not contrary to any agreement of the parties.10 From what has been stated above, it emerges that the absence of rules governing amici curiae does not appear as a disadvantage but rather an advantage as it contributes to maintaining the flexibility of the procedure and allows the arbitral tribunal to assess the suitability of such interventions on a case by case basis. Thus it is useful to underline that the rules traditionally are considered as fitting primarily for international commercial arbitration, in addition to the provisions granting broad procedural powers to the arbitral tribunal, the governing rules already contain provisions which cover the emerging problem.
There is no doubt that there exists an ambiguity on the notion of an amicus curiae. However, with regard to application of the concept of amicus curiae as an independent appointee, one should keep in mind that ICC, LCIA and UNCITRAL rules include such provisions and specifically regulate these power to appoint one or more independent experts to gain expert opinion on issues and tasks while providing a useful factual and legal information by enhancing the tribunal's knowledge. There can be another point of view, that is, should amici curiae's focus to influence the outcome of a decision. But it may be noted that allowing non-party interventions in such terms will erode the consensual nature of the arbitration proceedings. Accordingly, it is desirable that the amici curiae be allowed only where needed and required.
It may also be noted that for the quest of justice in legal systems which follow arbitration as an adversarial approach, the non-party intervention may well be useful and can be characterised for being restricted to the resolution of dispute between the parties to the dispute and confined to the issues that have been raised. However, thinking in these terms goes beyond what is expected from arbitration rules. Such rules should provide a neutral framework for arbitration users from different legal traditions. It may thus be stated that the relevance of amici curiae in international arbitration differs depending on the actual circumstances of the case. Irrespective of a specific reference to an amicus curiae, arbitral tribunals have already enough power to evaluate whether the intervention of amicus curiae is justified taking into account the specific needs of each case.
(The writer is an Advocate and is currently working as an associate with Azim-ud-Din Law Associates Karachi)
1. See for instance Article 37 (2) of the ICSID 2006 Arbitration Rules and Article 1128 and 1129 of the North American Free Trade Association [NAFTA].
2. Article 37 (2) of ICSID Convention
3. See Article R 41.4 [Revised 2010].
4. See revised Article 4 which came into force on 1.6.2012.
5. By changing the terminology of the text from, "a third party" to "persons"
6. However, other rules such as the 2012 Arbitration Rules of the international Chamber of Commerce, the London Court of International Arbitration Rules [LCIA], the UNCITRAL Rules (2010 edition) do not explicitly provide for amicus curiae but do not exclude them either.
7. Arbitration Rules provides procedure for such determination.
8. These powers exist despite the absence of specific provisions relating to amicus curiae.
9. See Rule 14.4 (ii) of the LCIA Rules.
10. See Article 22 of the 2012 revised rule.