The Research Of ’Amicus Curiae’ In International Investment Arbitration

’Amicus Curiae’, broadly translated as a friend of the court, is a veryimportant mechanism in the legal systems of common law countries. Amicusparticipation, taking the initiative to apply or according to the Tribunal’s request,is in a position to provide the court or tribunal its special perspective or expertisein relation to the dispute. The concept of ’Amicus Curiae’ has more recentlygained some recognition in various international legal proceedings, such as theInternational Court of Justice, European Court of Justice and the NorthAmerican Free Trade Area. With the development of economic globalization,NGOs and civil society groups have called for increased public involvement ininvestment arbitration proceedings, in order to incorporate broader policyconsiderations into the dispute resolution process and add a measure oftransparency. In the field of international economic, the settlement of disputescan be divided into two main parts, the WTO Dispute Settlement Proceeding andthe International Investment Arbitration. The World Trade Organization (WTO)only allows a limited form of third-party intervention by way of amicus briefs. In the international investment arbitration, NAFTA and ICSID both acceptwritten submissions in a number of arbitral proceedings.But, there are many problems in the Amicus Participation of internationalinvestment arbitration. Such as, the support of developing countries and theparticipation of ’Amicus Curiae’ are not enough. The concept of ’Amicus Curiae’is restricted to only written form of participation. On the anther hand, the rapidrise to prominence of international investment arbitration in the internationallegal order has been accompanied by mounting public concern regarding thesystem’s legitimacy and accountability.This paper seeks to analyze these issues of ’Amicus Curiae’ in theinternational investment arbitration, focusing on the potential for arbitrationregimes to strike an appropriate balance between maintaining the key features ofthe arbitral institution and allowing relevant third-parties’ participation. The fulltext includes totally five parts. The first part of this paper introduces the general theory of ’Amicus Curiae’,including the concept and the long history, then indicates the diversity of thebody and the form of participation.The second part discusses in closer detail the rationale for third-partyintervention in investment arbitration, focusing on the need for greaterlegitimacy and public participation in this area of dispute settlement. Firstly,theycould provide the investment arbitral tribunal with professional advices,whichenhances the legitimacy of the arbitration proceeding. Secondly,they couldmaintain the fairness of the arbitration award, enhance the transparency of thearbitration system and promote the arbitration system to protect the publicinterest.The third part traces recent developments of amicus participation ininternational investment arbitration and the institutional changes that haveallowed for greater third-party involvement. And it focuses on the famous cases in the NAFTA and ICSID Rules, with the classification of different bodies.Because of the active participation of ’Amicus Curiae’, there is a statement ofNAFTA Trade Commission and the new rule of ICSID.In the forth part,the author commences the problems in amicusparticipation by analysis of the existing arbitration practice and rules, paving theway for the following improvement suggestions.The last part emphasizes that we should not unlimited expand the right ofamicus participation, at the same time of recognizing the four typical problems.The extend,form and fulfill of ’Amicus Curiae’ is also the important issue of thearbitration system improvement. The author believes that the participation of’Amicus Curiae’ should always adhere to strike a proper balance betweenprivacy and efficient, as also the interest of public and the parties. Finally,it setsforth some suggestions, considering the need to develop more specific criteria todetermine whether amicus curiae participation should be permitted in particular circumstances, and the form and extent of such involvement in particularcontexts.