Neth Int Law Rev (2017) 64:73–94 DOI 10.1007/s40802-017-0077-2 ARTICLE

Amicus Acceptance and Relevance: The Distinctive Example of Philip Morris v. Uruguay Farouk El-Hosseny1 • Ezequiel H. Vetulli1

Published online: 9 March 2017  T.M.C. Asser Press 2017

Abstract In the last decade amicus intervention has become increasingly prevalent in investor-state arbitration. As part of a generalized drive towards transparency, amicus briefs are now routinely submitted in high-profile investor-state arbitrations, which are closely related to public interest issues. Philip Morris v. Uruguay is a notable example of such arbitrations. However, it is often argued that amicus submissions are hardly relevant to investor-state tribunals’ analyses. By first shedding light on the conditions governing the acceptance of amicus briefs, this article looks at how the Philip Morris tribunal admitted such briefs and whether they were at all relevant to the tribunal’s analysis. It thereafter questions the extent to which such relevance may be linked to the tribunal’s findings. Keywords Amicus curiae
Third party intervention
Investment treaty arbitration
Public interest
ICSID
Transparency
UNCITRAL Rules on Transparency
Mauritius Convention

This article is partly based on Farouk El-Hosseny’s PhD thesis (entitled ‘The Role of Civil Society in Investment Treaty Arbitration: Status and Prospects’) which was defended at Leiden University in May 2016. & Farouk El-Hosseny [email protected] Ezequiel H. Vetulli [email protected] 1

London, UK

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1 Introduction The law on the protection of foreign investments, which is enshrined in an intricate web of international investment agreements (IIAs), whether bilateral (BITs) or multilateral, is a truly burgeoning field of international law.1 Judge Bruno Simma posits that ‘the protection of foreign investment by way of treaties is one of the great international legal success stories’.2 IIAs, through investment treaty arbitration, afford foreign investors and host states an opportunity to settle their disputes through a de-politicized, neutral, fair and efficient procedure that is largely inspired by international commercial arbitration rules and practice. The advantages are obvious. The diplomatic protection of foreign investments—and its undesired geopolitical undertones—became generally unnecessary to resort to.3 In turn, host states attract foreign investors by guaranteeing access to international justice. Absent the creation of a world investment court, investment treaty arbitration thus appears as a crucial tool of global governance. With that being said, certain, but not all, investment treaty arbitrations that touch upon matters of public interest—in varying degrees—defy the private and confidential aspects that are inherent in international commercial arbitration.4 This has at times proved to be controversial notwithstanding the advantages identified above.5 For instance, a well-known comedian criticized Philip Morris for its claims against Australia and Uruguay before ‘an international court’ on a television show.6 Some arbitration practitioners have indeed argued that the Philip Morris claims exacerbated the negative public perception vis-a`-vis investment treaty arbitration.7 Deeply politicized debates surrounding the negotiations of the Comprehensive Economic and Trade Agreement between Canada and the European Union (CETA), the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment 1

Judge James Crawford points out that ‘[a]lmost 3,000 BITs have been signed in the past forty years with remarkably similar provisions, leading some scholars to conclude that they may now express the customary international law standards for foreign investment’. See Crawford et al. (2014), p. 1.

2

Simma (2011), p. 574.

3

Ibrahim Shihata, former Secretary-General of the International Centre for Settlement of Investment Disputes (ICSID), asserted that the ICSID Convention ‘provide[s] developing countries with a response which, compared to the Calvo Doctrine, is both more adequate in the depoliticization of disputes and more effective in the encouragement of foreign investment, without inviting the abuses of diplomatic protection’. See Shihata (1986), p. 11.

4

Nevertheless, even commercial arbitral institutions are taking measures to improve transparency. The International Court of Arbitration of the International Chamber of Commerce (ICC) announced in January 2016 that, for cases registered after 1 January 2016, the Court will publish on its website the names of the arbitrators, their nationalities, their method of appointment and which arbitrator is the tribunal chairperson. See ICC, ‘ICC Court Announces New Policies to Foster Transparency and Ensure Greater Efficiency’, 5 January 2016, available at: http://www.iccwbo.org/News/Articles/2016/ICC-Courtannounces-new-policies-to-foster-transparency-and-ensure-greater-efficiency/. Accessed 12 November 2013.

5

For a summary, see Kaufmann-Kohler and Potesta` (2016), pp. 9–15.

6

‘Tobacco: Last Week Tonight with John Oliver (HBO)’, broadcast on 15 February 2015, available on YouTube.

7

Ross (2016).

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Partnership (TTIP) are also testaments to such a negative perception.8 The Vattenfal case is yet another example. Some politicians in Germany were ‘enraged’ by Vattenfal’s claim challenging their government’s decision to shut down nuclear power plants before an ‘international arbitration body’ in proceedings that are ‘confidential [in] nature’, which initially prevented officials from commenting on the claim.9 In practice, the confidentiality of proceedings—a hallmark of international commercial arbitration—could benefit both foreign investors and host states. Tribunals have, for instance, called on parties to ‘limit public discussion of the case to a minimum’ based on requests from host states.10 However, confidentiality has become increasingly untenable in public interest-related investment treaty arbitration.11 Kauffmann-Kohler and Potesta` point out that one of the most recurring criticisms of the regime is that it ‘lack[s] transparency and offer[s] insufficient possibilities for third parties to participate in proceedings’.12 The question of accepting such participation has arisen in numerous complex investment treaty arbitrations. In these cases, arbitral tribunals have been called upon to consider the views of third parties as amici curiae or, in other words, ‘friends of the court’. These voluntarily solicit tribunals to submit briefs relating to a point of fact or law with the aim of assisting tribunals in the adjudication of the dispute.13 The first such case was Methanex Corporation v. United States. In a decision dating back to 2001, the arbitral tribunal allowed amicus briefs to be submitted. Methanex indeed paved the way for amicus intervention long before the matter was brought up in the 2016 US presidential campaign.14 While the acceptance of amicus intervention has nowadays largely become uncontroversial (although it is subject to an intricate web of rules and conditions as will be shown in this article),15 the importance given to amicus submissions and 8

The conclusion of CETA seemed to be marred with uncertainty after Wallonia’s Parliament had blocked its signature by the EU due to concerns over the treaty’s investor-state dispute settlement provisions, which set forth a novel adjudication process by a permanent tribunal as well as an appeal mechanism. The Parliament’s decision was ultimately reversed. The treaty was signed on 30 October 2016. Thomas (2016).

9

Knauer (2009). It is worthy to note that the German Constitutional Court has recently rendered a judgment in favour of Vattenfal. For a summary, see Jones (2016). An ICSID claim remains pending, see Vattenfall AB and others v. Federal Republic of Germany, ICSID Case No. ARB/12/12.

10 In Metalclad, Mexico requested the tribunal to safeguard the confidentiality of proceedings. See Metalclad Corporation v. United Mexican States, ICSID Case No. ARB(AF)/97/1, Decision on a Request by the Respondent for an Order Prohibiting the Claimant from Revealing Information of 27 October 1997, paras. 2, 9–10. 11

According to Kauffmann-Kohler and Potesta`, the concern over excessive confidentiality in matters of public interest has indeed been one of the first main criticisms raised against the system. See KaufmannKohler and Potesta` (2016), p. 14.

12

Ibid.

13

Sands (2001), p. 545.

14

Hillary Clinton said the following on that topic: ‘we need to have a new paradigm for trade agreements that doesn’t give special rights to corporations that workers and NGOs don’t get’. See Tudor (2016). 15

Bastin (2014), p. 140.

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their actual impact in the deliberations of arbitral tribunals remain unclear.16 One author explained that ‘amicus curiae briefs have so far failed to make an appreciable impact on the outcome of investor-state disputes’.17 In other words, it is questioned whether amicus curiae usefulness has been overemphasized. This article takes a closer look at amicus intervention in Philip Morris v. Uruguay—one of the most recent and high profile investment treaty arbitrations to involve such intervention.18 Briefs were submitted by the World Health Organization (WHO), the WHO Framework Convention on Tobacco Control (FCTC) Secretariat and the Pan American Health Organization (PAHO). The outcomes of the Philip Morris arbitrations19 have been positively regarded by critics of investment treaty arbitration and, at the same time, have been hailed by its defenders as evidence of the regime’s capacity to adequately deal with public interest matters.20 The question addressed herein is to what extent that positive outcome can be linked to the amici’s briefs. Were they at all relevant to the arbitral tribunal’s analysis? In order to answer this question, this article first highlights the current (and recent) framework governing the acceptance of amicus curiae submissions (Sect. 2). It then takes a closer look at the Philip Morris v. Uruguay arbitration, where the tribunal applied those recent rules governing the acceptance of amicus submissions (Sect. 3). The article finally provides an assessment of the briefs’ relevance in that case in addition to concluding remarks (Sect. 4).

2 Framework Governing the Acceptance of Amicus Curiae Submissions As mentioned above, Methanex Corporation v. United States paved the way for investor-state tribunals to accept amicus submissions.21 It marked a point of no return in that respect. The Methanex tribunal relied on its procedural discretion under Article 15(1) of the 1976 United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules22 to allow three non-governmental organizations (NGOs)—the International Institute for Sustainable Development, the Communities for a Better Environment and the Earth Island Institute—to submit 16

See for example Moore (2006), p. 269.

17

Maupin (2014), p. 397.

18

Philip Morris Brands Sa`rl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Uruguay, ICSID Case No. ARB/10/7, Award, 8 July 2016 (hereinafter: Philip Morris). The tribunal was composed of Prof. Piero Bernardini (Chairman), Judge James Crawford and Mr. Gary Born. 19 Philip Morris Asia Limited v. The Commonwealth of Australia, UNCITRAL, PCA Case No. 2012-12, Award on jurisdiction and admissibility, dated 17 December 2015 (hereinafter: Philip Morris v. Australia). 20 See for instance Brauch (2016) and Lavranos (2016)—although the latter was discussing Philip Morris v. Australia. 21 Methanex Corporation v. United States, Decision of the Tribunal on Petitions from Third Persons to Intervene as Amici Curiae of 15 January 2001 (hereinafter: Methanex Amicus Decision). 22

Art. 15(1) of the 1976 UNCITRAL Arbitration Rules provides that: ‘Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case’.

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amicus curiae briefs. The tribunal’s procedural analysis of its inherent powers under the Rules was supplemented by the following policy considerations: 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. This is not merely because one of the Disputing Parties is a State: there are, of course, disputes involving States which are of no greater general public importance than a dispute between private persons. The public interest in this arbitration arises from its subject-matter, as powerfully suggested in the [amicus] Petitions. In this regard, the Tribunal’s willingness to receive amicus submissions might support the process in general and this arbitration in particular, whereas a blanket refusal could do positive harm.23 In a dispute over the expropriation of water distribution concessions in the wake of the Argentine financial crisis, the Vivendi tribunal faced an amicus petition similar to the one made in Methanex.24 The tribunal would become the first ICSID tribunal to accede to such petitions. Here, the tribunal’s procedural analysis was complemented by substantive considerations. It noted that the water concessions at the heart of the dispute ‘provide basic public services to millions of people and as a result may raise a variety of complex public and international law questions, including human rights considerations’.25 In addition, short of explicit guidance from the then applicable ICSID Arbitration Rules, the Vivendi tribunal established conditions on amicus admissibility, particularly with respect to amicus (i) expertise, (ii) experience, and (iii) independence vis-a`-vis the disputing parties.26 As will be explained directly below, not long thereafter, ICSID would amend its arbitration rules. UNCITRAL followed suit by adopting new rules specifically ‘tailored’ for investor-state arbitrations. North American Free Trade Agreement (NAFTA) parties confirmed, through an interpretative statement, the Methanex tribunal’s approach. Likewise, numerous states included provisions regulating amicus submissions in newly negotiated IIAs as well as BITs. Efforts to enhance transparency in investment treaty arbitration are also now being addressed at a global/multilateral level with the adoption of the Mauritius Convention.27 2.1 The Amendment of the ICSID Arbitration Rules The Methanex precedent was supported by an increasing recognition in public and academic discourse of the need for greater transparency and third party participation 23

Methanex Amicus Decision, para. 49 (emphasis added).

24

Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic, ICSID Case No. ARB/03/19 (hereinafter: Suez), Order in Response to a Petition for Transparency and Participation as Amicus Curiae of 19 May 2005. 25

Suez, Order in Response to a Petition for Participation as Amicus Curiae of 17 March 2006, para. 18.

26

Ibid., para. 24.

27

United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius Convention), adopted 10 December 2014, not in force.

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in investor-state arbitration.28 Yves Fortier and Stephen Drymer emphasized the need for a paradigm shift in investment treaty arbitration in the following terms: Investor-State arbitration, whether conducted under [BITs] or multilateral instruments, invariably raises fundamental issues of public interest of a type typically foreign to international commercial arbitration. Indeed, a purely private commercial dispute, in which the issues to be resolved concern exclusively the rights and obligations of the parties’ interest, bears little resemblance to a treaty arbitration, in which the compliance of domestic legislative or regulatory measures with norms of international law is at issue. It is no surprise, then, that the traditional arbitral ‘model’ developed in the context of international commercial arbitration is frequently acknowledged to be inappropriate in investor-State disputes.29 ICSID was the first arbitral institution to address this issue. It amended its Arbitration Rules to that effect on 10 April 2006.30 The amended rules, implemented following consultations with member states and recommendations made by the ICSID Secretariat from as early as 2004, aimed at achieving a more efficient and transparent arbitral process.31 The amended rules not only provide for third party participation and the publication of awards, but also for provisional measures, expedited procedures for the dismissal of unmeritorious claims as well as additional disclosure requirements for arbitrators.32 First, in terms of transparency at hearings, Article 32(2) requires an objection from the parties to prevent access to hearings as opposed to a positive consent to grant such access.33 Second, Article 37(2) now explicitly grants arbitral tribunals the authority to accept amicus curiae briefs subject to the following conditions: After consulting both parties, the Tribunal may allow a person or entity that is not a party to the dispute (in this Rule called the ‘non-disputing party’) to file a written submission with the Tribunal regarding a matter within the scope of the dispute. 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; (b) the non-

28

See generally, Fortier and Drymer (2003).

29

Ibid., p. 473 (emphasis added).

30

ICSID Arbitration Rules, effective as of 10 April 2006.

31

See ICSID Annual Report (2006), p. 3, available at: https://icsid.worldbank.org/ICSID/ FrontServlet?requestType=ICSIDPublicationsRH&actionVal=ViewAnnualReports#. Accessed 12 November 2013. 32

For an overview of the amendments, see Buckley and Blyschak (2007), pp. 354–355.

33

Art. 32(2) of the ICSID Arbitration Rules states that: ‘Unless either party objects, the Tribunal, after consultation with the Secretary-General, may allow other persons, besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal, to attend or observe all or part of the hearings, subject to appropriate logistical arrangements’.

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disputing party submission would address a matter within the scope of the dispute; (c) the non-disputing party has a significant interest in the proceeding. The Tribunal shall ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party, and that both parties are given an opportunity to present their observations on the non-disputing party submission.34 The Rules open the door to ‘a person or entity that is not a party to the dispute’ to intervene as amicus. This potentially includes international organizations, such as the WHO or PAHO (which intervened in Philip Morris), civil society groups, such as the Communities for a Better Environment (which intervened in Methanex), or trade groups or associations, such as the Inter-American Association of Intellectual Property (which sought to intervene in Philip Morris). To the extent that it does not relate to independence vis-a`-vis the disputing parties, the identity of the intervenor is not as crucial as the ethos of the intervention in and of itself, i.e. the utility of amicus briefs is fundamental and is, accordingly, set as the first condition. Indeed, amicus intervention must assist the tribunal in the adjudication of the dispute by raising arguments or pointing out facts that are distinct from those made by the disputing parties. That said, amicus independence vis-a`-vis the disputing parties35 and the potential burden or prejudice that the intervention may cause are also crucial factors to be taken into account by arbitral tribunals, as this could very well taint the equality of arms between the disputing parties.36 As further discussed below, the UNCITRAL Rules on Transparency,37 where the issue of independence is extensively addressed, provide further guidance in that respect. 2.2 The Adoption of the UNCITRAL Rules on Transparency By accepting amicus briefs, the Methanex tribunal adapted the conduct of the proceedings in order to ‘fit the particular needs’ of investment treaty arbitration.38 This is notwithstanding the silence of the Rules on this issue. The UNCITRAL Rules on Transparency are precisely aimed at filling this gap. Indeed, the General 34

Art. 37(2), ICSID Arbitration Rules.

35

In Bernhard Von Pezold, the tribunal recognized that proceedings may well have an impact on the interests of indigenous communities; however, it dismissed an amicus petition made by the European Centre for Constitutional and Human Rights as well as four Zimbabwean indigenous communities citing doubts over the petitioners’ independence and neutrality vis-a`-vis Zimbabwe. See Bernhard Von Pezold and Others v. Republic of Zimbabwe, ICSID Cases No. Arb/10/15 and ARB/10/25, Procedural Order No. 2. 36

Thomas Wa¨lde argues that ‘third parties, essentially activist NGOs, are allowed to submit amicus briefs […] the introduction of amicus briefs by NGOs, which as a rule oppose the claimant, increases the cost burden on claimants substantially; not only do they have to incur litigation expenditures to raise the claim and rebut the respondent, but they now have to review the amicus briefs and attempt to rebut them’. See Wa¨lde (2010), p. 33.

37 UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, effective as of 1 April 2014 (UNCITRAL Rules on Transparency). 38

Methanex Amicus Decision, para. 27.

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Assembly resolution adopting the Rules recognized ‘the need for provisions on transparency in the settlement of such treaty-based investor-State disputes to take account of the public interest involved in such arbitrations’.39 Prior to the adoption of the Rules, the question of transparency in general, and amicus curiae participation in particular, stirred extensive debates amongst UNCITRAL’s Working Group members. Some members proposed to amend Article 15 of the 1976 UNCITRAL Arbitration Rules in order to provide that (i) all documents received or issued by the arbitral tribunal should be published; and (ii) the arbitral tribunal should have the discretion to allow persons or entities other than the disputing parties to submit amicus curiae briefs.40 Arguments were also made for Article 25(4) to provide that hearings should be open to the public rather than in camera and that Article 32(5) should provide for the systematic publication of awards. Most Working Group members had noted, however, that investor-state arbitration had been ‘still developing’, and had agreed to maintain a generic approach applicable to all types of arbitration, irrespective of the subject matter of the dispute.41 The majority had agreed that certain issues such as wider transparency concerns, particularly akin to investor-state arbitration, should be dealt with subsequently, but as ‘a matter of priority’, which indeed materialized with the adoption of the new Rules in 2013.42 In contrast to the ICSID Arbitration Rules, the UNCITRAL Rules on Transparency do not consist of an amendment to the UNCITRAL Arbitration Rules. Rather, the Rules are essentially meant to apply to investment treaty arbitration initiated under the UNCITRAL Arbitration Rules pursuant to an investment treaty concluded following 1 April 2014 and/or those concluded prior to 1 April 2014 if (i) the disputing parties agree to their application, or (ii) the parties to an investment treaty have agreed to their application.43 The adoption of the Rules on Transparency has effectively allowed UNCITRAL to establish two separate sets of procedural rules for commercial and investment treaty arbitrations. It is therefore a positive response to calls for a specific procedural approach in investor-state arbitration as discussed above. The UNCITRAL Rules on Transparency set the publicity of proceedings as the general overarching rule, and confidentiality as the exception pursuant to Article 6.44 With respect to amicus submissions, Article 4(1) adopts essentially the same wording as the first part of Article 37(2) of the ICSID Arbitration Rules:

39

UN General Assembly, Resolution A/RES/68/109, 16 December 2013.

40

UNCITRAL, Report of the Working Group II (Arbitration and Conciliation), 46th session, 5–9 February 2007 (A/CN.9/592), para. 61, available at: http://www.uncitral.org/uncitral/en/commission/ working_groups/2Arbitration.html. Accessed 12 November 2013. 41

Ibid., para. 62.

42

UNCITRAL, Report of the Working Group II (Arbitration and Conciliation), 53rd session, 4–8 October 2010 (A/CN.9/712), para. 2, available at: http://www.uncitral.org/uncitral/en/commission/ working_groups/2Arbitration.html. Accessed 12 November 2013). 43

See Art. 1, UNCITRAL Rules on Transparency.

44

Art. 6, UNCITRAL Rules on Transparency.

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After consultation with the disputing parties, the arbitral tribunal may allow a person that is not a disputing party, and not a non-disputing Party to the treaty (‘third person(s)’), to file a written submission with the arbitral tribunal regarding a matter within the scope of the dispute. The Rules adopt a two-pronged test in respect of the acceptance of amicus curiae submissions. The first deals with the information required from potential amici when applying for leave to make submissions. The second provides guidance to arbitral tribunals in deciding on whether or not to grant such leave. Third persons wishing to act as amicus curiae are requested to submit significantly detailed information regarding their: (i) identity, (ii) connection to the disputing parties; (iii) sources of funding; (iv) interest in the dispute; and (v) arguments of facts or law in the arbitration they would like to present.45 Regarding the issue of identity, the Rules provide interesting insight by requiring a description of the ‘third person’ that would include its ‘legal status (e.g., trade association or other non-governmental organization)’, thereby opening the door to both civil society actors as well as trade groups and associations to file amicus curiae briefs. This is consistent with the position under the ICSID Arbitration Rules, as well as the previous arbitral decisions governed by the UNCITRAL Arbitration Rules. For instance, in UPS v. Canada, a NAFTA arbitration governed by the 1976 UNCITRAL Arbitration Rules, the arbitral tribunal allowed the US Chamber of Commerce to file an amicus brief.46 Furthermore, tribunals are required to consider the following criteria: In determining whether to allow such a submission, the arbitral tribunal shall take into consideration, among other factors it determines to be relevant: (a) whether the third person has a significant interest in the arbitral proceedings; and (b) the extent to which the submission would assist the arbitral tribunal in the determination of a factual or legal issue related to the arbitral proceedings by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties.47 Here again, the UNCITRAL Rules on Transparency essentially follow the wording of the ICSID Arbitration Rules. Both frame amicus intervention on the 45 Art. 4(2) of the UNCITRAL Rules on Transparency states that: ‘2. A third person wishing to make a submission shall apply to the arbitral tribunal, and shall, in a concise written statement, which is in a language of the arbitration and complies with any page limits set by the arbitral tribunal: (a) Describe the third person, including, where relevant, its membership and legal status (e.g., trade association or other non-governmental organization), its general objectives, the nature of its activities and any parent organization (including any organization that directly or indirectly controls the third person); (b) Disclose any connection, direct or indirect, which the third person has with any disputing party; (c) Provide information on any government, person or organization that has provided to the third person (i) any financial or other assistance in preparing the submission; or (ii) substantial assistance in either of the two years preceding the application by the third person under this Article (e.g. funding around 20 per cent of its overall operations annually); (d) Describe the nature of the interest that the third person has in the arbitration; and (e) Identify the specific issues of fact or law in the arbitration that the third person wishes to address in its written submission’. 46

United Parcel Service v. Canada, UNCITRAL, Final Award dated 11 June 2007.

47

Art. 4(3), UNCITRAL Rules on Transparency.

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basis of the establishment of a ‘significant interest’ in the proceedings. The Rules on Transparency equally address the issue of the potential burden and prejudice to either disputing party, providing that: 5. The arbitral tribunal shall ensure that any submission does not disrupt or unduly burden the arbitral proceedings, or unfairly prejudice any disputing party. 6. The arbitral tribunal shall ensure that the disputing parties are given a reasonable opportunity to present their observations on any submission by the third person.48 The UNCITRAL Rules on Transparency also confine the purpose of amicus curiae submissions to the mere assistance of the tribunal.49 In essence, the acceptance of amicus briefs is entirely subject to tribunals’ discretion. It is not based on the exercise of any substantive right to intervention that the amicus might consider to have—a principle that is not, however, explicitly set forth under either the ICSID Arbitration Rules or the UNCITRAL Rules on Transparency but is indeed under the NAFTA Free Trade Commission Statement, which will be discussed directly below. Finally, a key feature of the Rules on Transparency is the creation of the UNCITRAL Transparency Registry. The Registry makes information on investorstate arbitrations and investment treaties readily available to the public. It is worthy to note that the Rules on Transparency are not the latest set of arbitration rules specifically tailored to investment treaty arbitrations. In 2017, the Singapore International Arbitration Centre (SIAC) issued a set of Rules for Investment Arbitration mirroring the UNCITRAL Rules on Transparency. The Rules allow third parties to file a written brief provided they establish a ‘sufficient interest in the proceedings’.50 2.3 NAFTA FTC Statement Prior to the amendment of the ICSID Arbitration Rules and the adoption of the UNCITRAL Rules on Transparency, measures were taken at the NAFTA level to enhance transparency in general, and confirm the acceptance of amicus curiae participation in particular. The Free Trade Commission51 Statement on NonDisputing Party Participation (the ‘FTC Statement’)52 was adopted on 7 October

48

Art. 4(5) and 4(6), ibid.

49

Art. 4(3)(b), ibid.

50

Rule 28(3)(c), SIAC Rules for Investment Arbitration, adopted 1 January 2017.

51

The FTC is made up of ministerial representatives from NAFTA parties (Canada, Mexico and the US). Its mandate includes the supervision of the implementation of NAFTA and the provision of assistance in resolving disputes arising from its interpretation. It also oversees the work of NAFTA committees, working groups and other bodies. 52 NAFTA Free Trade Commission, ‘Statement of the Free Trade Commission on Non-disputing Party Participation’, dated 7 October 2003, available at: http://www.international.gc.ca/trade-agreementsaccords-commerciaux/assets/pdfs/Nondisputing-en.pdf. Accessed 12 November 2013.

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2003. It asserted the discretionary authority of arbitral tribunals to accept amicus curiae submissions by non-disputing parties. In its first section, the FTC Statement sets out that no NAFTA provision ‘limits a Tribunal’s discretion to accept written submissions from a person or entity that is not a disputing party’. It also specifies the information that should be provided along with the application for leave to file amicus curiae briefs (section A): […] disclose whether or not the applicant has any affiliation, direct or indirect, with any disputing party; (e) identify any government, person or organization that has provided any financial or other assistance in preparing the submission; (f) specify the nature of the interest that the applicant has in the arbitration; (g) identify the specific issues of fact or law in the arbitration that the applicant has addressed in its written submission; (h) explain, by reference to the factors specified in paragraph 6, why the Tribunal should accept the submission.53 Furthermore, the FTC Statement provides guidance to arbitral tribunals in deciding on whether or not to grant leave (section B). Tribunals are advised to assess 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 arbitration by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties; (b) the non-disputing party submission would address matters within the scope of the dispute; (c) the non-disputing party has a significant interest in the arbitration; and (d) there is a public interest in the subject-matter of the arbitration. The Tribunal will ensure that: (a) any non-disputing party submission avoids disrupting the proceedings; and (b) neither disputing party is unduly burdened or unfairly prejudiced by such submissions.54 Here again, just as the ICSID Arbitration Rules and the UNCITRAL Rules on Transparency, the FTC Statement defines the ethos of an amicus curiae as being a mere assistant to the tribunal. The FTC highlights another key condition relating to the ‘public interest’ subject-matter of the dispute. By contrast, the ICSID Arbitration Rules and UNCITRAL Rules on Transparency do not explicitly refer to the existence of a ‘public interest’ as a condition for amicus acceptance. This implies that not all investment treaty arbitrations relate to public interest issues. In many cases, the public’s interest in an arbitration may be quite minimal. Indeed, the Methanex tribunal recognized that ‘there are of course disputes involving States which are of no greater general public importance than a dispute between private

53

Ibid.

54

Ibid. (emphasis added).

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persons’.55 In such cases, amicus intervention and transparency would not be as crucial. As mentioned above, the FTC Statement explicitly confirms that amicus intervention does not entail any procedural or substantive rights: The granting of leave to file a non-disputing party submission does not require the Tribunal to address that submission at any point in the arbitration. The granting of leave to file a non-disputing party submission does not entitle the non-disputing party that filed the submission to make further submissions in the arbitration.56 In sum, the FTC Statement emphasized that ‘[n]o provision of the [NAFTA] limits a Tribunal’s discretion to accept written submissions from a person or entity that is not a disputing party’.57 As a matter of general arbitration principles, an arbitral tribunal has the power to conduct the proceedings in such manner as it considers appropriate. Regulating an amicus petition through the exercise of such discretionary power is crucial in order to maintain the integrity of proceedings. This has been clearly reflected in more recent IIAs and BITs. 2.4 A New Generation of Investment Treaties In light of the increasing emphasis on transparency, numerous recently signed investment treaties, as well as drafts for treaties to be concluded, adopt the amicus curiae practice. In fact, as early as 2004, the US model BIT contained a provision allowing arbitral tribunals to accept amicus curiae briefs.58 The exact provision was retained in the 2012 model BIT.59 It has been adopted in the Central American Free Trade Agreement concluded by the US and the Dominican Republic, Nicaragua, Costa Rica, El Salvador, Guatemala, and Honduras.60 Canada also includes similar provisions in its BITs.61 It is fair to expect that, in any event, the US and Canada would do so, since both had indeed supported greater transparency and third party involvement in NAFTA proceedings from the outset when the issue first arose in Methanex.62 55

Methanex Amicus Decision, para. 49.

56

Section B(9), FTC Statement (emphasis added).

57

Ibid., Section A(1).

58

Art. 28(3) of the 2004 US Model BIT: ‘The tribunal shall have the authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party’. See United States of America Bilateral Investment Treaty Model (2004), available at: http://www.ustr.gov/sites/default/files/ U.S.%20model%20BIT.pdf. Accessed 12 November 2013. 59

See United States of America Bilateral Investment Treaty Model (2012), available at: http://www.ustr. gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf. Accessed 12 November 2013.

60 See Art. 10.20(3), Central American Free Trade Agreement, entered into force 1 January 2009, available at: http://www.ustr.gov/sites/default/files/uploads/agreements/cafta/asset_upload_file328_4718. pdf. Accessed 12 November 2013. 61 See for instance Canada’s most recent BITs with Korea (2015), Honduras (2014), Panama (2013), and Peru (2009). Available at: http://www.international.gc.ca/trade-agreements-accords-commerciaux/agracc/fta-ale.aspx?lang=eng. Accessed 9 February 2017. 62

Methanex Amicus Decision, para. 17.

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However, it is worth recalling that amicus curiae intervention is not familiar to all legal systems, especially in some civil law states. For instance, during an UNCITRAL Working Group meeting, France expressed reservations in respect of the amicus curiae practice in investment treaty arbitration.63 It noted that ‘the [amicus curiae] procedure is, however, alien to the French legal tradition’ and that ‘[i]ts use should […] be strictly limited’.64 Equally, in Methanex, Mexico opposed the acceptance of amicus curiae petitions by arguing that NAFTA’s Chapter XI dispute settlement mechanism was meant to strike a balance between the US and Canada as common law states and Mexico as a civil law state and that, accordingly, the fact that the amicus procedure is accepted in common law domestic jurisdictions does not mean it could be ‘transported to a transnational NAFTA arbitration’.65 With that being said, many civil law states have endorsed amicus intervention under the dispute settlement mechanisms set forth in their BITs. Chile, for instance, has entered into BITs with common and civil law states, which explicitly authorise arbitral tribunals to accept amicus briefs.66 This equally applies to the EU, which is primarily made up of civil law states. The EU position vis-a`-vis amicus participation has never been clearer, particularly in the wake of the CETA and TTIP negotiations. Recently, Cecilia Malmstro¨m, the EU Commissioner for Trade, has brought the amicus issue to the fore with a concept paper that includes various proposals for an overhaul of investor-state arbitration. The paper noted that ‘CETA and the EU/ Singapore FTA provide for the possibility that the arbitration tribunal ‘‘may’’ accept amicus curiae briefs from third parties under certain conditions, in line with recently agreed UNCITRAL Rules on Transparency’.67 However, the EU Commissioner is not only seeking to secure amicus curiae intervention, but also the ‘right to intervene to persons with a clear and concrete interest in the case’.68 The paper provides that ‘[i]n addition to the possibility for the Tribunal to accept amicus 63 France’s entire comments on the use of the amicus curiae procedure at a UNCITRAL Working Group meeting are as follows: ‘This procedure can be useful for the parties and for the judge, if the intervention of the amicus curiae clarifies the subject under discussion and thus contributes to the quality of the arbitration process and the settlement of the case. The procedure is, however, alien to the French legal tradition. It may, moreover, give rise to abuse and inequalities. Its use should therefore be strictly limited. The intervention of amicus curiae may actually extend a dispute to people not parties to the case. Such an intervention will also entail additional costs, which may be borne by both parties, even though only one party will benefit from the submissions concerned [emphasis added]’. See UNCITRAL, Working Group II (Arbitration and Conciliation)—‘Compilation of Comments by Governments’, 53rd session, 4–8 October 2010 (A/CN.9/WG.II/WP.159/Add.3), at 5, available at: http://www.uncitral.org/uncitral/en/ commission/working_groups/2Arbitration.html. Accessed 12 November 2013. 64

Ibid.

65

Methanex Amicus Decision, para. 10.

66

These include Mexico (1999), South Korea (2004), Japan (2007), Peru (2009), Australia (2009) and Colombia (2009). See for instance Art. 11.20(3), Chile-Peru Free Trade Agreement, entered into force 1 March 2009, available at: http://www.direcon.gob.cl/wp-content/uploads/2011/11/TLC-Chile-Per%C3% BA_Parte2.pdf. Accessed 8 February 2017. See also UNCITRAL (2010), Working Group II (Arbitration and Conciliation)—‘Compilation of Comments by Governments’, 53rd session, 4–8 October 2010 (A/ CN.9/WG.II/WP.159/Add.4), available at: http://www.uncitral.org/uncitral/en/commission/working_ groups/2Arbitration.html. Accessed 8 February 2017. 67

Malmstro¨m (2015), p. 7.

68

Ibid.

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curiae briefs, the EU proposal should confer a right to intervene to third parties with a direct and existing interest in the outcome of a dispute’.69 The ‘direct and existing interest’ threshold contrasts with the ‘significant interest’ standard set forth under the UNCITRAL Rules on Transparency and the ICSID Arbitration Rules.70 This enhanced form of amicus intervention is reflected in the draft text of the TTIP, which provides that ‘the Tribunal shall permit any natural or legal person which can establish a direct and present interest in the result of the dispute (the intervener) to intervene as a third party […]’.71 In practice, this enhanced form of amicus intervention entails the following: (i) access to case materials; (ii) making oral arguments before the tribunal; and (iii) the submission of a written brief. In sum, provisions governing amicus participation are now widely included in investment treaties. Its prevalence will be reinforced with an increase in the use of the UNCITRAL Rules on Transparency, as further discussed below. 2.5 The Mauritius Convention on Transparency UNCITRAL promoted its Rules on Transparency on a multilateral level through the Mauritius Convention on Transparency. The Convention’s objective is to enhance transparency in investment treaty arbitration, namely through public hearings, access to case materials, and amicus submissions. Although the Mauritius Convention has been signed by 17 states so far,72 only Mauritius and, more recently, Canada have ratified it.73 The Mauritius Convention applies a multilateral ‘opt-in’ mechanism.74 Once in force, the Convention will apply to all arbitrations initiated pursuant to IIAs or BITs concluded by signatory states before April 2014. Therefore, its main effect will be to trigger the application of the UNCITRAL Rules on Transparency, which so far have only been applied in two cases on the basis of the disputing parties’ agreement.75 By ratifying the Convention, states agree to apply the Rules on Transparency to their investment treaties concluded prior to the Convention’s adoption. Whilst it may take considerable time for the Convention to gain impetus, its adoption certainly represents a solid step towards transparency. Many arbitrations

69

Ibid., p. 8 (emphasis added).

70

Art. 37(2), ICSID Arbitration Rules, supra n. 34; Art. 4(3), UNCITRAL Rules on Transparency, supra n. 47. 71 See European Commission, ‘Commission Draft Text TTIP, Chapter II—Investment’, Art. 23(1), available at: http://trade.ec.europa.eu/doclib/docs/2015/september/tradoc_153807.pdf. Accessed 8 February 2017. 72 These are: Belgium, Canada, Congo, Finland, France, Gabon, Germany, Italy, Luxembourg, Madagascar, Mauritius, the Netherlands, Sweden, Switzerland, Syria, the UK, and the US. 73

The Mauritius Convention will enter into force upon its ratification by three UN member states.

74

This mechanism has been considered as a possible way of implementing a reform of the investment treaty arbitration regime. See generally Kaufmann-Kohler and Potesta` (2016). 75

Iberdrola S.A. and Iberdrola Energia. S.A.U. v. Plurinational State of Bolivia, PCA Case No. 2015-05; BSG Resources Limited, BSG Resources (Guinea) Limited and BSG Resources (Guinea) SA`RL v. Republic of Guinea, ICSID Case No. ARB/14/22. The former has been settled, the latter remains pending.

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are, in any event, already conducted in a transparent manner. These include, as mentioned, the Philip Morris arbitration which will be discussed directly below.

3 The Philip Morris v. Uruguay Arbitration Below is a closer look at the issues underlying the dispute, the admission of the amici’s briefs as well as the tribunal’s award, with a focus on the extent to which it relied on the said briefs. 3.1 The dispute In 2003 Uruguay ratified the Framework Convention on Tobacco Control—a convention concluded under the auspices of the WHO.76 The Convention reaffirms the scientific evidence on the harm caused by tobacco, the threat posed by advertising and promotion, illicit trade, and the need for cooperative action to tackle these problems. In addition, the Convention imposes an obligation on contracting parties to set restrictions on the marketing of cigarettes and the labelling of tobacco packaging.77 Relying on the Convention and a web of prior anti-tobacco legislation, Uruguay enacted two additional anti-tobacco measures in 2008 and 2009. The first precluded tobacco manufacturers from marketing more than one variant of cigarettes per brand family (the Single Presentation Requirement). The second increased the size of mandatory graphic health warnings on cigarette packages, such that these would cover 80 per cent of all cigarette packages (the 80/80 Regulation). These measures somewhat differ from Australia’s plain packaging legislation, which has been the subject of another investment treaty arbitration also involving US-based Philip Morris—as mentioned above.78 Australia’s plain packaging legislation effectively prevents tobacco companies from displaying their brand logos, i.e. tobacco packages are to be ‘plain’, indicating in text only the brand’s name. In 2010, Swiss and Uruguayan subsidiaries of Philip Morris brought an ICSID claim against Uruguay pursuant to the Switzerland-Uruguay BIT. They claimed that the Single Presentation Requirement and 80/80 Regulation amounted to violations of several standards of protection under the BIT, including those relating to expropriation and fair and equitable treatment. In particular, the claimants alleged that the measures effectively expropriate their trademarks. Moreover, the measures 76

WHO Framework Convention on Tobacco Control (WHO FCTC), adopted on 21 May 2003, entered into force on 27 February 2005. 77 Art. 11(b) of the Convention provides that: ‘Each Party shall, within a period of three years after entry into force of this Convention for that Party, adopt and implement, in accordance with its national law, effective measures to ensure that […] each unit packet and package of tobacco products and any outside packaging and labelling of such products also carry health warnings describing the harmful effects of tobacco use, and may include other appropriate messages. These warnings and messages: […] (ii) shall be rotating, (iii) shall be large, clear, visible and legible, (iv) should be 50% or more of the principal display areas but shall be no less than 30% of the principal display areas, (v) may be in the form of or include pictures or pictograms’. Ibid. (emphasis added). 78

See Philip Morris v. Australia.

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were arbitrary given that, according to the claimants, they were adopted without scientific evidence as to their effectiveness. Therefore, they amounted to a violation of the fair and equitable treatment standard. While the claimants did not contest that smoking tobacco entails a serious health risk, they argued that the adopted measures were arbitrary and disproportionate and had damaged their investment, including their intellectual property rights and the ‘goodwill’ associated with their brands. Uruguay, on the other hand, argued that the measures were not discriminatory, as they extended to all tobacco companies, and they amounted to a reasonable, good faith exercise of its sovereign regulatory powers. Regarding the Single Presentation Requirement, Uruguay alleged that it was aimed at mitigating the ongoing adverse effects of tobacco promotion, including the alleged false marketing strategy to induce consumers to believe that certain brand variants are healthier than others. As to the 80/80 Regulation, Uruguay explained that it was adopted to increase consumer awareness of the health risks of tobacco consumption and to encourage its citizens to avoid smoking, while still permitting tobacco companies to display their logos on packages. Uruguay also asserted that the measures were adopted in accordance with its obligations under the Framework Convention on Tobacco Control. 3.2 The Admission of Amici’s Briefs During the course of the arbitration, three international organizations—the WHO, FCTC Secretariat and PAHO—submitted requests to file written submissions as non-disputing parties, pursuant to Article 37(2) of the ICSID Arbitration Rules, as mentioned above. The WHO and FCTC Secretariat filed a joint petition (and later a joint brief) explaining that their submission may assist the tribunal in the determination of factual and legal issues by: (i) ‘providing evidence of the relationship between large graphic health warnings, bans on misleading branding and the protection of public health; providing facts concerning ‘‘tobacco control globally and the regulatory environment in [Uruguay]’’’; (ii) ‘explaining the provisions of the WHO FCTC and its legal relationship with the SwitzerlandUruguay BIT’; and (iii) ‘bringing perspective, knowledge and insight distinct from the parties’.79 Separately, the WHO and FCTC Secretariat’s ‘significant interest’80 was substantiated on the basis that the outcome of the arbitration ‘might have a significant impact on the implementation of the Convention by its other 180 Member States, both because the WHO FCTC and its Guidelines address tobacco packaging and labelling measures and because the claim challenges the sovereign authority of Uruguay to regulate in the interest of public health’.81 Notwithstanding the claimants’ objection,82 the tribunal decided to accept the WHO and FCTC Secretariat’s petition having established that the petitioners satisfy 79

Philip Morris, Procedural Order No. 3, para. 7.

80

Art. 37(2)(c), ICSID Arbitration Rules, supra n. 34.

81

Philip Morris, Procedural Order No. 3, para. 9.

82

Ibid., Procedural Order No. 3, paras. 10–16.

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the conditions set forth under Article 37(2) of the ICSID Arbitration Rules. Equally, the tribunal relied on broader policy considerations. It recalled the Methanex tribunal’s statement to the effect that the arbitral process would benefit if it is ‘perceived as more open or transparent’.83 The tribunal then stated in its own words that ‘[i]t considers that in view of the public interest involved in this case, granting the Request would support the transparency of the proceeding and its acceptability by users at large’.84 With that being said, the tribunal took a number of measures in order to ‘safeguard the integrity of the arbitral process’. First, it emphasized that ‘[a]cceptance of a[n] [amicus] submission shall [not] confer to the petitioner […] the status of a party to the arbitration proceeding […] The need to safeguard the integrity of the arbitral process requires in fact that no procedural rights or privileges of any kind be granted to the non-disputing parties’.85 This is a generally accepted principle, initially transposed from WTO case law,86 that is now well entrenched in investment treaty arbitration jurisprudence dealing with amicus intervention.87 Second, the tribunal reserved the right to make an order for costs to be borne by the amici should either party request a reimbursement of costs incurred as a result of the briefs.88 Here, the tribunal distinctively addressed a widely held concern among practitioners with respect to the burden of potential costs on the parties resulting from amicus briefs.89 Finally, it is worthy to mention that the tribunal denied two amicus petitions. The first by the Avaaz Foundation—an association concerned with ‘pressing global, regional and national issues, from corruption and poverty to conflict and climate change’. Avaaz solely relied on, what it called, the ‘unique composition’ of its membership to justify its intervention.90 The tribunal was unconvinced. It emphasized that such a feature was insufficient to consider that it would offer a perspective, particular knowledge or insight different than the disputing parties’ or 83

Ibid., para. 26.

84

Ibid., para. 28. The tribunal accepted the PAHO’s submission on the same grounds.

85

Ibid., para. 22.

86

This principle is actually inspired by WTO Appellate Body case law. In the Hot-Rolled Lead case, the Appellate Body explained that amici curiae, which are non-WTO member States, do not benefit from a substantive right to submit briefs under the WTO Dispute Settlement Understanding in the following terms: ‘Individuals and organizations, which are not members of the WTO, have no legal ‘‘right’’ to make submissions or to be heard by the Appellate Body. The Appellate Body has no legal ‘‘duty’’ to accept or consider unsolicited amicus curiae briefs submitted by individuals or organizations, not members of the WTO’. See WTO, Report of the Appellate Body, United States: Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismut Carbon Steel Products Originating in the United Kingdom, WT/ DS138/AB/R (10 May 2000), para. 41. 87 In UPS v. Canada, the tribunal recognized that a significant public interest was at stake and that it had the discretionary power to accept amicus submissions in accordance with Art. 15(1) of the 1976 UNCITRAL Rules. However, the tribunal clearly emphasized that the acceptance of such briefs is ‘a matter of its power rather than of third party right’. See United Parcel Service v. Canada, Decision of the Tribunal on Petitions for Intervention and Participation as Amicus Curiae of 17 October 2001, para. 61. 88

Philip Morris, Procedural Order No. 3, para. 31.

89

See, for instance, Wa¨lde (2010), p. 33.

90

Ibid., Award, para. 52.

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that would be relevant to this particular case.91 In addition, the tribunal noted that the Foundation’s petition had been submitted after one of the parties had presented all of its scheduled written pleadings, i.e. at a very late stage of the proceedings. The tribunal considered that the acceptance of Avaaz’ petition would disrupt the proceedings and unfairly prejudice the parties.92 A similar rationale justified the tribunal’s denial of the Inter-American Association of Intellectual Property’s amicus petition. The petition had been filed a month prior to the commencement of the hearing on the merits. Furthermore, the tribunal found that the Association had failed to meet the independence criterion set forth under Article 37(2) of the ICSID Arbitration Rules.93 Uruguay brought to the attention of the tribunal that some of the claimants’ counsel were involved in the Association’s management board and a number of its committees. The tribunal emphasized that ‘[p]rior ICSID tribunals have already recognized the importance of the lack of connection between the petitioner and the disputing parties for the tribunal’s determination to accept or deny non-disputing parties’ submissions’.94 3.3 The Tribunal’s Award and References to the Amici’s Briefs The WHO and FCTC Secretariat’s brief pointed out that, based on empirical evidence, there was a serious problem of misleading information displayed on cigarette packaging.95 The brief expressed the view that the larger the graphic health warnings on packages, the more consumption was discouraged. The PAHO’s brief elaborated on the trends in marketing and tobacco consumption in Uruguay, and explained how the measures at issue in the arbitration were able to effectively address these trends.96 The tribunal repeatedly cited in its award the amici’s briefs (over 21 times) primarily for the purposes of establishing the facts of the dispute. It relied on the briefs to substantiate the health effects of tobacco consumption,97 the levels of such consumption in Uruguay,98 as well as Uruguay’s FCTC compliance.99 Likewise, it used them to establish that tobbaco consumption in Uruguay had actually decreased following the implementation of the challenged measures.100 In its analysis on expropriation, the tribunal had to decide whether Uruguay’s measures were arbitrary. In this regard, the tribunal noted that ‘[c]ontrary to the Claimants’ contention, the Challenged Measures were not ‘‘arbitrary and unnecessary’’ but rather were potentially ‘‘effective means to protecting public health’’, a 91

Ibid.

92

Ibid.

93

Art. 37(2), ICSID Arbitration Rules, supra n. 34.

94

Philip Morris, Award, para. 55.

95

WHO Brief, 28 January 2015.

96

Procedural Order No. 4, 24 March 2015, paras. 8–9.

97

Philip Morris, Award, paras. 74–75.

98

Ibid., para. 138.

99

Ibid., para. 393.

100

Ibid., para. 141.

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conclusion endorsed also by the WHO/PAHO submissions’.101 The tribunal then found that that ‘the Challenged Measures were a valid exercise by Uruguay of its police powers for the protection of public health. As such, they cannot constitute an expropriation of the Claimants’ investment’.102 With respect to the fair and equitable treatment head of claim, the tribunal also relied on the amicus briefs to find that the measures were reasonable, effective and evidence based.103 The tribunal stated that ‘[b]oth measures have been implemented by the State for the purpose of protecting public health. The connection between the objective pursued by the State and the utility of the two measures is recognized by the WHO and the PAHO Amicus Briefs’.104 The majority of the tribunal105 held that the Single Presentation Requirement was a genuine attempt to address a real public health concern, which was proportionate and adopted in good faith.106 In addition, the majority stated that there was no need to assess whether the measures actually had the desired effect, but only whether they were reasonable at the time they were adoped. In this respect, the majority pointed out that the measures were taken on the basis of a ‘strong scientific consensus as to the lethal effects of tobacco’.107 The claimants’ fair and equitable treatment claim was thus rejected.

4 Concluding Remarks—An Assessment of the Briefs’ Relevance It is clear that the Philip Morris tribunal extensively cited the WHO and PAHO briefs. The tribunal not only referred to the briefs in the facts section of its award, but also in its legal analysis sections. Crucially, it also referred to the briefs in concluding that ‘the Challenged Measures were a valid exercise by Uruguay of its police powers for the protection of public health’.108 This is in contrast to other tribunals which have stated that amicus briefs provided ‘a very useful initial context for the Arbitral Tribunal’s enquiry’ without quoting them or referring to them in their legal analysis, i.e. it seems that they were merely used for the purposes of 101

Ibid., para. 306 (emphasis added).

102

The tribunal also held that Philip Morris brands and other distinctive elements thereof remained visible on cigarette packaging and that the evidence suggested that, even after the adoption of the measures, the claimants’ business had retained sufficient value. See ibid., paras. 286, 307. 103

Ibid., para. 391; see also para. 407.

104

Ibid., para. 391 (emphasis added).

105

Mr. Gary Born partially dissented having concluded that ‘the single presentation requirement must be regarded as arbitrary and disproportionate because it is wholly unnecessary to accomplishing its only stated objective and instead prohibits substantial categories of conduct that do not accomplish that objective. It is that fundamental lack of rationality and proportionality that renders the requirement arbitrary and disproportionate’. See Philip Morris, Concurring and Dissenting Opinion of Mr. Gary Born, para. 196. 106

The tribunal also rejected the claimants’ argument to the effect that Uruguay had affected its legitimate expectations, since it considered that the claimants could only have expected ‘progressively more stringent regulation’ in light of ‘widely accepted international concern for the harmful effect of tobacco’. See ibid., para. 430. 107

Ibid., Award, para. 418.

108

Ibid., para. 307.

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establishing the factual background of the award.109 Others have not referred to them at all.110 Perhaps more weight was given to the amici in Philip Morris, i.e. the WHO, the FCTC Secretariat and PAHO, in light of their status as important intergovernmental organizations. In any event, as one author explained: ‘amicus curiae participation has become and will remain in the foreseeable future an important feature of the administration of justice in the field of foreign investment’.111 Transparency as well as third party participation now represent the norm in high stakes public interest-related investment treaty arbitrations. However, tribunals should not hesitate to set limits. If amicus intervention has the potential to increase the parties’ costs, then tribunals should reserve the right to make appropriate costs orders to that effect—as the Philip Morris tribunal has done.112 Equally, tribunals should deny amicus participation if the latter fails to meet the criteria set forth under the ICSID Arbitration Rules or the UNCITRAL Rules on Transparency. Amicus petitioners should clearly establish their independence vis-a`-vis the disputing parties and show tribunals in concreto how their intervention can assist tribunals. The mere existence of a public interest is far from sufficient to justify the intervention of civil society— again as shown by the Philip Morris tribunal when rejecting the Avaaz Foundation’s petition. This is indeed essential in order to safeguard the fair and efficient conduct of proceedings. The Philip Morris tribunal provided an important precedent in that regard when it denied amicus petitions that were (i) deemed unhelpful; (ii) presented by an entity that was not independent vis-a`-vis the claimants; and (iii) submitted at a late stage of the proceedings. Finally, one could hardly speak of a causal link between an amicus brief and a tribunal’s award. Both could, however, go towards the same direction as in the Philip Morris arbitration, i.e. there could be a correlative link between the two. The ethos of the amicus is that of a bystander in a bipartite dynamic where two disputing parties resort to a tribunal to adjudicate their dispute. The amicus should, and is expected to, solely and exclusively act as an assistant to the tribunal by bringing forward useful arguments, perspectives, and expertise that are distinct from the disputing parties’. An amicus role is quintessentially peripheral. Any expectations for third party participation beyond that would be unrealistic. It seems that, in any event, amicus participation is no longer viewed as a controversial topic. Tribunals are perfectly apt at regulating such participation in a manner that ensures the fair and efficient conduct of the proceedings as the Philip Morris tribunal has shown.

109 Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award dated 24 July 2008, para. 355. 110

See for instance United Parcel Service v. Canada, supra n. 46.

111

Francioni (2009), p. 740.

112

See supra n. 88.

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References Bastin L (2014) Amicus curiae in investor-state arbitration: eight recent trends. Arbitr Int 30:125–144 Brauch M (2016) Philip Morris v. Uruguay: all claims dismissed; Uruguay to receive US$7 million reimbursement. International Institute for Sustainable Development. https://www.iisd.org/itn/2016/ 08/10/philip-morris-brands-sarl-philip-morris-products-s-a-and-abal-hermanos-s-a-v-oriental-republicof-uruguay-icsid-case-no-arb-10-7/. Accessed 8 Feb 2017 Buckley R, Blyschak P (2007) Guarding the open door: non-party participation before the International Centre for Settlement of Investment Disputes. Bank Financ Law Rev 22:353–376 Crawford J et al (2014) Foreign investment disputes: cases, materials and commentary. Kluwer Law International, Alphen aan den Rijn Fortier Y, Drymer S (2003) Third-party intervention and document discovery. J World Invest 4:473–479 Francioni F (2009) Access to justice, denial of justice and international investment law. Eur J Int Law 20:729–748 Jones T (2016) German court rules on nuclear phase-out as Vattenfall award draws near. Global Arbitration Review, 8 December 2016. http://globalarbitrationreview.com/article/1078505/germancourt-rules-on-nuclear-phase-out-as-vattenfall-award-draws-near. Accessed 14 Feb 2017 Kaufmann-Kohler G, Potesta` M (2016) Can the Mauritius Convention serve as a model for the reform of investor-state arbitration in connection with the introduction of a permanent investment tribunal or an appeal mechanism? Geneva Center for International Dispute Settlement. http://www.uncitral. org/pdf/english/commissionsessions/unc/unc-49/CIDS_Research_Paper_-_Can_the_Mauritius_ Convention_serve_as_a_model.pdf. Accessed 9 Feb 2017 Knauer S (2009) Power plant battle goes to international arbitration. Spiegel Online, 15 July 2009. http:// www.spiegel.de/international/germany/vattenfall-vs-germany-power-plant-battle-goes-to-internationalarbitration-a-636334.html. Accessed 8 Feb 2017 Lavranos N (2016) The deafening silence of the anti-ISDS groups after the Philip Morris decision. Kluwer Arbitration Blog, 24 February 2016. http://kluwerarbitrationblog.com/2016/02/24/thedeafening-silence-of-the-anti-isds-groups-after-the-philip-morris-decision/. Accessed 8 Feb 2017 Malmstro¨m C (2015) European Commission investment in TTIP and beyond—the path for reform: enhancing the right to regulate and moving from current ad hoc arbitration towards an investment court, 5 May 2015. http://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.PDF. Accessed 8 Feb 2017 Maupin J (2014) Public and private in international investment law: an integrated systems approach. Va J Int Law 54:368–436 Moore A (2006) Are amici curiae the proper response to the public’s concerns on transparency in investment arbitration? Law Pract Int Courts Trib 5:257–271 Ross A (2016) Arbitration will survive—but avoid hubris, warns Veeder’. Global Arbitration Review, 20 January 2016. http://globalarbitrationreview.com/article/1035066/arbitration-will-survive-%E2% 80%93-but-avoid-hubris-warns-veeder. Accessed 14 Feb 2017 Sands P (2001) Turtles and torturers: the transformation of international law. N Y Univ J Int Law Politics 33:527–560 Shihata I (1986) Towards a greater depoliticization of investment disputes: the role of ICSID and MIGA. ICISID Review 1:1–25 Simma B (2011) Foreign investment arbitration: a place for human rights? Int Comp Law Q 60:573–596 Thomas D (2016) Canada and EU sign controversial trade deal. Global Arbitration Review, 31 October 2016. http://globalarbitrationreview.com/article/1070109/canada-and-eu-sign-controversial-tradedeal. Accessed 14 Feb 2017 Tudor O (2016) Clinton & Sanders show the way on ‘trade’ agreements. Touch Stone, 24 April 2016. http://touchstoneblog.org.uk/2016/04/us-democrats-show-way-trade-agreements/. Accessed 14 Feb 2017 Wa¨lde T (2010) Procedural challenges in investment arbitration under the shadow of the dual role of the state: asymmetries and tribunals’ duty to ensure, pro-actively, the equality of arms. Arbitr Int 26:3–42

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Farouk El-Hosseny is admitted to the Bars of Quebec and Paris. He may be reached by phone at ?44 20 7936 4000. Ezequiel H. Vetulli is admitted to practice in Argentina. He graduated from the Geneva Master in International Dispute Settlement, and is an Ambassador of the Paris Arbitration Academy. He may be reached by phone at ?44 7834 890163.

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