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International Centre for Settlement of Investment Disputes (ICSID): Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order no. 5

Published online by Cambridge University Press:  27 February 2017

Charles H. Brower II
Charles H. Brower II*
Affiliation:
American Society of International Law University of Mississippi School of Law
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Type
Judicial and Similar Proceedings
Information
International Legal Materials , Volume 46 , Issue 3 , May 2007 , pp. 572 - 586
Copyright
Copyright © American Society of International Law 2007

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References

1 This text was reproduced and reformatted from the text appearing at the ICSID website (last visited 18 May 2007) <http://www.worldbank.org/icsid>.

1 In the absence of treaty provisions or arbitration rules expressly governing the issue, tribunals previously justified the receipt of amicus submissions based on the more generalized power to determine unresolved procedural issues. Compare Aguas Provinciates de Santa Fe S.A. v. Argentine Republic, ICSID Case No. ARB/03/17, Order in Response to Petition for Participation as Amicus Curiae at ffl 11-16 (Mar. 17, 2006), available at http://ita.law.uvic.ca/documents/Aguas-Amici-17March2006.pdf, and Aguas Argentinas, S.A. v. Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to Petition for Transparency and Participation as Amicus Curiae at 10-16 (May 19, 2005), available at http://ita.law.uvic.ca/documents/suezMayl9EN.pdf (both recognizing the power to receive amicus submissions based on Article 44 of the ICSID Convention, which grants tribunals a residual power to decide procedural questions not treated in the Convention or the rules applicable to a given dispute), with United Parcel Serv. of Am., Inc. v. Canada, Decision of the Tribunal on Petition for Intervention and Participation as Amici Curiae at fj[ 44-73 (Oct. 17,2001), available at http://www.dfait-maeci.gc.ca/tna-nac/documents/IntVent_oct.pdf, and Methanex Corp. v. United States, Decision of the Tribunal on Petitions from Third Persons to Intervene as "Amici Curiae" at 1124-31 (Jan. 15, 2001) [hereinafter Methanex Decision on Amicus Submissions], available at http://www.state.gov/documents/organization/6039.pdf (both recognizing the power to receive amicus submissions based on Article 15(1) of the UNCITRAL Arbitration Rules, which grants tribunals broad discretion to conduct the proceedings as they

2 See Mistelis, Loukas A., Confidentiality and Third Party Par-ticipation: UPS v. Canada and Methanex Corp. v. United States, in International Investment Law and Arbitration 169, 198 (Todd Weiler ed., 2005)Google Scholar (recognizing the traditional lack of amicus submissions in investor-state arbitration, but opining that “the tide may be changing“). See also Coe, Jack J. Jr., Transparency in the Resolution of Investor-State Disputes-Adoption, Adaptation, and NAFTA Leadership, 54 U. KAN. L. REV. 1339, 1380 (2006)Google Scholar (mentioning amicus submissions as part of the “seemingly irreversible trend toward openness affecting investor-state arbitration”).

3 See ICSID Arbitration Rules, Art. 37(2), available at < http//www.worldbank.org/icsid/basicdoc/CRR_English-final.pdf >. This rule took effect on April 10, 2006. Amendments to the ICSID Rules, NEWS FROM ICSID, Summer 2006, at 1.

4 Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 5 (Feb. 2, 2007), available at <http//www.investmentclaims.com/de-cisions/ARB0522%20Biwater-PO5.pdf> [hereinafter Biwater Order on Amicus Submissions].

5 Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 3, at f 1 (Sept. 29, 2006), 46 I.L.M. 15, 15 (2007) [hereinafter Biwater Order on Confidentially].

6 Id.; Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 1, at 1, 4, 7,12 (Mar. 31,2006),available at<http//www.investmentclaims.com/decisions/BGT-TanzaniaTransparency_Order-%2031_March_2006.pdf >.

7 Biwater Order on Confidentiality, supra note 5, at’ 135, 143-47, 46 I.L.M. at 15-16, 30-32.

8 Knahr, Christina, Introductory Note to International Centrefor Settlement of Investment Disputes (ICSID): Biwater Gauff(Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 3, 46 I.L.M. 12, 12–13 (2007)Google Scholar. See also Biwater Order on Confidentiality, supranote 5, at 149-60, 46 I.L.M. at 32-33.

9 Biwater Order on Amicus Submissions, supra note 4, at[ I, 11,25-32.

10 Id. at 12, 14.

11 Biwater Order on Amicus Submissions, supra note 4 at 1 12.

12 Id. at 1 35.

13 Cf. id. at 1 39 (recording Biwater's view that the scope ofrequested disclosure suggests a desire to monitor the proceedings as a matter of general interest, not to assist the tribunal on the more narrowly focused issues of sustainable development and human rights).

14 Id. at 41. See also ICSID Arbitration Rules, supra note 3, An.32(2) (authorizing tribunals to admit third parties to hearings “[u]nless either [disputing] party objects“) (emphasis added).

15 Biwater Order on Amicus Submissions, supra note 4, at % 18.

16 ICSID Arbitration Rules, supra note 3, Art. 37(2).

17 Id. Article 37(2) also requires tribunals to consider the extent to which (1) “the non-disputing party submission would address a matter within the scope of the dispute,” and (2) “the non-disputing party has a significant interest in the proceeding.” Most commentary implies, however, that the touchstone should be the extent of potential assistance to the tribunal. See Coe, supra note 2, at 1363 (opining that “if amici areto have a role, it must be because they add something of significance“); Andrew Newcombe&Axelle Lemaire, Should Amici Curiae Participate in Investment Treaty Arbitrations'.'.5 VINDOBONA J. INT'L COM. L.&ARB. 22, 36 (2001) (emphasizing the “requirement that amici submissions be … helpful to the tribunal in completing its task”).

18 ICSID Arbitration Rules, supra note 3, Art. 37(2). Unlike the Free Trade Commission's recommendations for investor-staledisputes under the North American Free Trade Agreement.Article 37(2) does not require non-disputing parties to have a significant presence on the territory of a state party and doesnot impose specific page limits on their submissions. See Statement of the Free Trade Commission on Non-Disputing Party Participation at B(l), (3)(b) (Oct. 7, 2003), available at <//www.dfait-maeci.gc.ca/naftaalena/Nondisputing- en.pdf>.

19 Biwater Order on Amicus Submissions, supra note 4, at 53.

20 Id. at 1 50.

21 Id. at 54 (quoting Methanex Decision on Amicus Submissions.supra note 1, at 1 22).

22 Id. at 56, 59-60.

23 Id. at f 60.

24 Id. at 64.

25 Id. at 65.

26 Id. at 70-71.

27 Id. at 50(a).

28 Id. at 54. On this point, the tribunal's reasoning seems less than compelling. The benefits of transparency rise in direct proportion to public interest involved in investment treaty disputes. See Jorge E. Vifiuales, Amicus Intervention in Investor-State Arbitration, DISP. RESOL. J., NOV. 2006-Jan. 2007,at 73, 77. To the extent that a particular dispute lacks a public dimension, it seems unlikely that transparency would add a greater sense of legitimacy to the proceedings.

29 Biwater Order on AmicusSubmissions, supra note 4, at 60(a) (emphasis added).

30 One should recall that tribunals could also use their discretion to decline amicus submissions. See Coe, supra note 2, at 1364(observing that the “luxury to decline petitions is as important as the prerogative to admit them“). See also Aguas del Tunari S. A. v. Republic of Bolivia, ICSID Case No. ARB/02/3, Letter from Prof. David D. Caron, President of Tribunal, to J. Martin Wagner, Director, International Program,Earth justice (Jan. 29, 2003), available at <//ita.law.uvic.ca/documents/ Aguas-BoliviaResponse.pdf> (rejecting a petition to file written amicus submissions at the jurisdictional phase of the proceedings).

31 Biwater Order on Amicus Submissions, supra note 4, at 1 64.

32 Id. at 25, 65.

33 See Brower, Charles H., II, Structure, Legitimacy, and NAF-TA's Investment Chapter, 36 VAND. J. Transnat'l L. 37, 72–73 (2003)Google Scholar (expressing doubt that potential amici couldsatisfy the requirement of formulating helpful submissions without access to major pleadings filed by the disputing par ties); Newcombe&Lemaire, supra note 17, at 36 (contending that amici could not “play any useful role if they do not have access to the primary legal and factual submissions by the parties in an investor-state arbitration”); Viñuales, supra note 28, at 78 (recognizing the legitimacy of NGO arguments that access to party submissions “is necessary for meaningful and effective amicus intervention”).

34 See Viñuales, supra note 28, at 78 (concluding that amicus submissions may provide NGOs with the visibility they need to “survive and grow”).