Uninvited guests: NGOs, amicus curiae briefs, and the environment in investor-state dispute settlement.
I. INTRODUCTION II. CONVERGENCES, COLLISIONS, AND COMPLEXITY: THE INVESTMENT REGIME AND THE ENVIRONMENT IN CONTEXT 1. THE INVESTMENT REGIME, ISDS, AND THE ROLE OF NON-STATE ACTORS A. ISDS IN BROAD STROKES 2. CLASHES AND TENSIONS IN INTERNATIONAL LAW A. FUNCTIONALISM, FRAGMENTATION, AND COMPLEXITY IN INTERNATIONAL LAW B. OPEN, ENVIRONMENTALLY RESPONSIVE REGIMES AND PRODUCTIVE INTERACTIONS WITH THE ENVIRONMENT III. WHERE AND HOW HAVE INTERACTIONS OCCURRED BETWEEN INVESTMENT AND ENVIRONMENT? 1. EVER THE TWAIN SHALL MEET? THE INTERNATIONAL INVESTMENT REGI AND ITS "OTHERS" 2. NGOS IN THE INTERNATIONAL INVESTMENT REGIME A. THE AMICUS CURIAE BRIEF IN ISDS B. GOOD, BAD, OR SOMETHING IN BETWEEN? IV. NGO EFFORTS TO BRING ENVIRONMENTAL ISSUES INTO THE INVESTMENT REGIME: PACIFIC RIM CAYMAN LLC V REPUBLIC OF EL SALVADOR 1. THE AMICUS CURIAE BRIEF 2. IMPACTS: THE TRIBUNAL'S RESPONSE TO THE BRIEF 3. CONCLUSIONS FROM THE CASE STUDY V. CONCLUSIONS
In 2002, a Chilean investor sues the government of Peru under the Chile-Pent Bilateral Investment Agreement when, as part of its programme to protect wetlands, marshes, and other water sources, a municipal government revokes the investor's permit to build a pasta factory. (1) A purportedly American investor launches a claim in 2008 under the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA) when it fails to gain approval of an environmental impact study required for its ongoing mining activities in El Salvador. (2) Then, in 2009, a Swedish company sues Germany under the Energy Charter Treaty when local opposition over potential implications for climate change and pollution of the Elbe River results in delays to and limitations upon its permits to build a coal-fired power plant in Hamburg. (3)
As these and many other cases demonstrate, environmental regulation is often--and, indeed, is increasingly--at the heart of investment treaty arbitration. These kinds of clashes have become more frequent as the regime sustaining the rights protecting foreign investors, enforced by a process of binding arbitration, continues to grow at what can only be described as at an exponential rate. International investment agreements (IIAs)--of which it has been recently estimated there are approximately 3,000 (4)--continue to swell in number while becoming more comprehensive and grander of scale, with recent agreements encompassing an ever wider range of parties and issue coverage. (5)
As a result of this expansion, the pressure points created where the investment regime comes into conflict with environmental regulation have also multiplied. These encounters, and the responses to them generated by the investor-state dispute settlement (ISDS) process, have led to public concern, resistance, and, with little recourse for locally affected actors to weigh in on these decision-making processes, frustration. The result is a tense yet unbalanced 'push-pull' dynamic at the sites of these encounters, as myriad actors and interests vie to alternatively overcome or exploit the ISDS process. These constant interactions create a complex pattern of convergences and divergences, where opposing interests (and the norms, actors, and processes that support them) are brought together in often violent and intricate ways, yet struggle to overcome the forces that pull them together. In this article broadly speaking, I delve into this complex milieu so as to shed light upon the intersections and tensions between locally-authored efforts designed to protect the environment (and the actors who would preserve them) on the one hand, and those designed to protect foreign investment (and the actors who would propagate such protection) on the other.
The unique norm-productive characteristics of the investment regime further complicate this already complex landscape. The privatized decision-making function performed by arbitration tribunals in ISDS--conducted, as it is, by ad hoc panels of private arbitrators--coupled with the investor-focused rights contained within IIAs, dispatches much of the control over the regime's function and the production of its increasingly powerful norms to private actors. In ratifying these IIAs (particularly in such quantities), states seem to have willingly, and even enthusiastically, sponsored this arrangement. This has created something of a gap in the formal and informal infrastructure for the promulgation of the public interest relating to the environment. However, while non-state actors such as non-governmental organizations (NGOs) have attempted to play a role in filling this void, they have found themselves faced with a conundrum: the very regime that owns the processes through which efforts aimed at protecting the environment are compromised displays little interest in either exploring concerns over these impacts or permitting others to raise them.
The investment regime's turn to ever-greater closure, and the seeming ambivalence on the part of the State to this process, have been paralleled by increasing insistence in efforts to penetrate the regime. One tool used by NGOs to force their way into the regime and highlight the environmental concerns at play in ISDS disputes is the amicus curiae brief. This practice emerges as both necessary and appropriate to the unique circumstances of international investment law in that it allows such actors to "find ways to voice their concerns in the very places where law beyond the state is made." (6) The investment regime is now less and less able to ignore the insistence of NGOs that they have a stake and a place in ISDS. It is increasingly clear that the regime needs to become more open to the involvement of such actors and more sensitive to the environmental concerns that they raise.
In this article, I explore the nexus between the investment regime, the environment, and NGOs. More specifically, I seek to unpack the relationship between the investment regime and its environmental "others," focusing on the role of NGOs in both shaping (and compelling) these interactions and encouraging greater openness and responsiveness in the regime to environmental issues. I argue that while these collisions are inevitable, they can and ought to be rendered more productive. Then, focusing on the practice of amicus curiae intervention in ISDS proceedings, and drawing insights from a case study, I argue that NGOs have a crucial role in bringing about and shaping collisions between the investment regime and the environment in ways that lead to greater sensitivity to environmental concerns within the regime. This fledgling potential, however, has thus far been limited.
I proceed in four parts. After providing some introductory context in part I, my first task, in part II, is to situate the tension between the investment regime and the environment against the broader background of fragmentation in international law and to offer theoretical grounding for my hypothesis and subsequent analysis. In so doing, I build upon the literature on regime interactions in international law, developing, in particular, its limited application to the international investment regime. I then move on, in part III, to provide a more concrete sense of how and where collisions between the investment regime and the environment are taking place before discussing how NGOs are uniquely positioned to bring about more productive interactions in ISDS. I also explore the practice of, and extensive literature on, amicus curiae briefs in ISDS. Building on this discussion, in part IV, I consider this potential through a short case study of the amicus curiae submission in the Pac Rim v El Salvador case. I use this analysis to obtain a sense, first, of the tactics employed by NGOs in their amicus curiae submissions to enable more productive interactions between investment and environment and to encourage greater responsiveness in the regime to environmental concerns and, second, of the extent to which tribunals engage with these submissions in a meaningful way. Finally, in part V, I situate the findings from the case study in a broader context, canvassing trends and structures within the regime that might be impacting upon the capacity of NGOs to facilitate these interactions effectively to encourage transformation.
Ultimately, this article offers deeper insights into both the relationship between environmental protection and international investment law and the underexplored role of NGOs in shaping the international investment regime. It does so by applying insights from the emerging literature on regime interactions in international law while simultaneously filling a lacuna in the extensive literature on amicus curiae briefs in ISDS by examining the role of amici in regime transformation.
II. CONVERGENCES, COLLISIONS, AND COMPLEXITY: THE INVESTMENT REGIME AND THE ENVIRONMENT IN CONTEXT
In order to trace trends and changes in the regime, some background must first be explored. In this part, I first discuss some of the key features of ISDS before moving on to provide a historical and theoretical foundation for the subsequent analysis.
1. The Investment Regime, ISDS, and the Role of Non-State Actors
A "regime" in international law has been usefully described as comprising "sets of norms, decision-making procedures and organisations coalescing around functional issue-areas and dominated by particular modes of behaviour, assumptions and biases." (7) The international investment regime--which could, admittedly, be construed in a number of ways, potentially encompassing a vast network of norms, institutions, and actors (8)--can be defined by such parameters.
There is a limited literature that examines international investment law--including its influence and relationship to other arenas--from a "regime" perspective. Saverio Di Benedetto is among those who has seen the utility of this analytical perspective, though describing the investment regime as "quasi-unitary" and essentially a patchwork that includes definite, unifying elements. (9)
The IIA is the "basic building block" of the investment regime. (10) The majority of these treaties are bilateral in nature, though several regional (11) and multilateral (12) IIAs exist as well. Indeed, the largely bilateral nature of the international investment regime is one of its unique features. (13) It bears underscoring that while these agreements are negotiated between and ratified by states, their protections are offered to private entities and individuals--that is, to foreign investors who are nationals of ratifying state parties to an agreement. Many IIAs refer to similar standards of treatment owed by the Host State to a foreign investor and its investment. (14) The regime's core standards include "fair and equitable treatment" or "minimum standard of treatment;" (15) "full protection and security;" (16) "national treatment;" (17) "most favoured nation;" (18) and "protection against expropriation." (19)
The regime's most prominent institutions are the International Centre for the Settlement of Investment Disputes (ICSID) and the United Nations Commission on International Trade Law (UNCITRAL). While neither of these institutions offers for a for substantive norm creation or formalized decision making in the way that many other international organizations (such as the WTO) do, both sponsor sets of widely employed procedural rules for ISDS.
ISDS is the regime's primary decision-making vehicle. Given the narrow scope of this article, (20) I focus on this latter element of the regime. I focus on ISDS for a number of reasons. First, in many ways, ISDS is the main crucible within which collisions between the investment regime and the environmental occur. As will be explored further below, international institutions are not the central norm-producing loci of investment regime. Nor is the regime's authority underpinned by a single foundational document or a cluster of interlocking and complementary treaties, such as within the international trade regime. Rather, the regime coalesces weakly around a constellation of treaties of tenuous similarity and little formal connection. ISDS, then, provides the main point of entry for influence from actors--and the norms they might import--from outside the regime. It provides the main battlefield for these clashes, making it a highly appropriate aspect of the regime upon which to focus. Second, ISDS provides one of the main norm-creation for a for the regime. Once an IIA has been ratified, the unique design of these agreements transfers much of the regime's norm-creation authority to ad hoc arbitration tribunals, brought together when disputes arise and which are expected to interpret vaguely composed investment standards so as to determine whether host state activity violates investor rights.
a. ISDS in Broad Strokes
ISDS is provided for in IIAs. It is initiated at the instigation of a foreign investor who believes that a host state has violated one of the IIA's investment protection standards. In contrast to other international regimes such as international trade, decision making in the investment regime is, in essence, "privatized." (21) That is, there is no overarching international institution wherein publicly accountable representatives meet to negotiate the rules of the regime. Rather, decision making is delegated to panels of arbitrators who generally come from the ranks of elite commercial law practice or academia. This contributes to investment law's "curious hybrid flavour," (22) reflected in the mix of public (e.g., treaties) and private (e.g., commercial-style arbitration) elements that constitute the regime. This is a unique and crucial feature of ISDS and of the regime more generally. Stephen Schill considers this to be not only "an important institutional arrangement in order to promote and protect foreign investment," but also a form of private enforcement of public international law, empowering investors to hold states accountable for violations of public international law in a neutral forum. (23) The perceived neutral or de-politicized forum that ISDS purports to offer through these privately constituted and ad hoc tribunals is a key component to the regime's founding mythos. (24)
The Host State is a defendant in these arbitrations. For states hoping to attract and preserve foreign investment, this can create an uncomfortable dilemma. States, particularly from the "developing world," negotiate and ratify IIAs in the hope of appearing to offer an "investment-friendly" environment for foreign companies. However, through ISDS, a state may find its regulatory activity challenged by foreign investors. A defendant state may therefore be hesitant to introduce relevant policy concerns or disclose reasons for its actions if this might compromise the country's "investment-friendly" reputation. (25)
This has significant ramifications for the role, generally, of non-state actors in ISDS. Foreign investors, as non-state actors, are increasingly empowered to drive the evolution of investment law (and, incidentally, to alter the domestic law of host states). States, as the sponsors of this process (by signing investment treaties) have the power to temper the powers of foreign investors to this end. Practically, however, states may be hesitant (or effectively unable) to provide more than limited counterbalance to this trend given their interest in appearing to be "open for business" by continuing to participate in, or even contribute to the expansion of, the regime's reach. This, in turn, can raise concerns for, and encourage the participation of, additional non-state actors such as NGOs in processes such as ISDS.
An additional relevant feature of ISDS is the general exclusion of non-parties from disputes. Some IIAs do include mechanisms through which other state parties to an IIA may intervene in a proceeding, (26) and some rules and IIAs now explicitly empower arbitrators to accept and consider non-party amicus curiae briefs. (27) The degree of participation accommodated in ISDS proceedings varies, depending upon the tribunal convened to adjudicate the claim, the rules under which it proceeds, and the IIA, among other factors. These aspects of the regime will be explored further below.
2. Clashes an d Tension s in In tern ation al Law
In this section, I offer a depiction of the international milieu within which clashes between the international investment regime and the environment are unfolding, grounding these tensions in a larger historical context. To analyze the trends and characteristics that define the dichotomous relationship between the investment regime and the environment--and the role that NGOs have come to play as fulcrum between the two--it is crucial to link them to this broader setting. As such, drawing from the literature on regime interactions, the following discussion will both elucidate the lines of enquiry and inform the development of the theoretical framework that will contour my subsequent analysis.
a. Functionalism, Fragmentation, and Complexity in International Law
A perceived increasing complexity and incoherence in the landscape of international law has spawned anxiety over what is seen as the growing fragmentation of international law. What was once potentially seen as a vast realm of "international law"--a relatively coherent, if not homogenous, body of law--can now be seen as a constellation of more isolated and specialized regimes, each forming and governed by its own principles of law and institutions. (28) The worry, according to the ILC Study Group in its seminal report on fragmentation in international law, is that
such specialized law-making and institution-building tends to take place with relative ignorance of legislative and institutional activities in the adjoining fields and of the general principles and practices of international law. The result is conflicts between rules or rule-systems, deviating institutional practices and, possibly, the loss of an overall perspective on the law. (29)
This fragmentation is often attributed to modern international law's functionalist origins, which saw various specialized international regimes form in response to discrete issues on the international plane. (30) Initially, following World War I, cooperative institutional-legal responses were crafted around areas such as navigation, communications, and labour. Later international regimes coalesced around issue-areas such as public health, intellectual property, and international trade. In each instance, these specialized regimes "reflected deliberate efforts by groups of states to respond to new and emerging political, economic, and social developments [and] developed in a relatively ad hoc and uncoordinated fashion." (31) In the end, what has resulted is a body of international law consisting of various specialized regimes that link up and overlap in some instances only very weakly, if at all. Moreover, the nature of these linkages--both vertically and horizontally--is uncertain. With some exceptions, (32) there exists no universally recognized hierarchy as between norms or between the regimes, nor a judicial mechanism responsible for clarifying these relationships.
International law has continued to struggle with this legacy in light of its ongoing evolution, which has been characterized by increased density, the diffusion of norm-creation authority, and, with the acceleration of globalization, increased interdependency. (33) As understandings and manifestations of global issues began to challenge demarcations between individual regimes, international law found itself ill-equipped to respond effectively. International law's functionalist origins, as expressed through the ad hoc evolution of these relatively isolated regimes, has led to an inability to respond to such global issues, which increasingly implicate an overlapping network of regimes, creating tension or "collisions" between them.
This is particularly so, perhaps, with environmental problems. In both cause and impact, many environmental problems have a tendency to defy categorizations upon which the law depends for intervention. This increasingly transnationalized and diffuse character has meant that environmental issues have found themselves entangled in a number of regimes, many of which are ill-equipped to relate to and, consequently, deal with them.
For example, climate change might be exacerbated by carbon dioxide emissions in one jurisdiction (say, the United States), while its impacts might be disproportionately felt elsewhere (for example, Vanuatu); legal solutions might be proposed on the basis of environmental policy (the European Union (EU) aviation carbon tax, for example), but implicate non-environmental policy areas (such as international transportation). Extricating such problems from the larger context in which they are inextricably bound up, or excluding them from regimes that are not of a purely "environmental" character, detracts from their effective management or mitigation.
Thus, as global problems, such as those relating to environmental protection, increasingly seep across or otherwise resist the categorical imperatives that international law's functional regimes would seek to impose upon them, clashes become inevitable as individualized regimes struggle either to find ways to deal with unfamiliar issues and actors or to exclude these foreign elements from their ordinary operation. The uncertainty characterizing this fragmentation, and international law's responses to the attendant conflict and uncertainty, has meant that how these conflicts are characterized and dealt with is, in essence, wide open to interpretation. This in turn sets the stage for competing claims of superiority between various normative projects (and the regimes that they support).
The rise of the international investment regime has transpired within this milieu. The regime's normative roots can be traced back to eighteenth century 'Friendship, Commerce, and Navigation' agreements (treaties which were, in essence, trade agreements that tended to include provisions for the reciprocal protection of property for nationals of the signatory states) and customary international law rules respecting the protection of foreign investment according to a minimum standard of treatment. (34) The more familiar aspects of the regime--particularly the practice of arbitration--began to take more shape during the period of European colonization that occurred in the late nineteenth to early twentieth centuries. (35) With the advent of decolonization, the previously sanctioned use of force as means of protecting foreign investment in colonized territories gave way to non-violent methods of resolving disputes--usually diplomacy or, in exceptional circumstances, inter-state adjudication. (36) This was considered a generally unsatisfactory means of protecting foreign investment by both international business and powerful capital-exporting nations, (37) leading, over the decades, to a variety of ultimately failed attempts to coordinate a multilateral agreement for investment protection. (38) Eventually, in light of such failures, capital-exporting states began to look to bilateral agreements to perform this function. The first such agreement was signed by the Federal Republic of Germany and Pakistan in 1959. (39)
Throughout its history, the investment regime has evolved so as to serve the purpose of protecting foreign investment from Host State expropriation. Even as the colonial era grew ever distant and international dynamics began to shift such that the line between capital-importing and capital-exporting began to blur, this general mandate strayed little from the purpose of protecting foreign investment from Host State intrusion.
The result has been a regime that has remained faithful to the singular economic purpose from which it evolved, growing ever more effective in executing its mandate. The regime's fidelity has continued to weather shifting social realities and growing resistance to the effects of its growing reach, particularly into areas involving environmental regulation. Rather, the regime's continued expansion has been accompanied and, perhaps, propelled along by the conviction that "protection of investor interests will invariably, without further state intervention, lead to the public good." (40)
Conflicts between competing regimes, and between regimes and competing values and interests, are obviously in no way exclusive to the investment context. However, as Jacob notes,
the issue rears its head rather prominently in the investment law context, given its effectiveness, the extent of modern investor protection and the frequently very deeply intertwined involvement of international investors in matters of great public interest. (41)
With ever more extension into and overlap with other areas, (42) conflicts with "social" areas such as the environment--along with human rights and labour, for example--have becoming increasingly prevalent for the international investment regime.
As will be explored further below in part III, environmental regulation, in particular, is increasingly coming into conflict with the investment regime at many different points of intersection. Even where conflict is not direct--in that it does not come to a head during the course of the ISDS process--it is often not far below the surface. A subtler form of conflict that does play itself out in ISDS can be seen, for example, in concerns over the "regulatory chill" effect. (43) The fact that the international investment regime and the environment are (perceived to be) pitted against one another--coupled with the fact that there is there an increasingly recognized public interest in these conflicts (44)--militates in favour of a broader, more contextualized approach to understanding the investment regime's relationship to and interactions with the environment.
b. Open, Environmentally Responsive Regimes and Productive Interactions with the Environment
With this backdrop in mind, a question emerges: how might regimes in international law such as the international investment regime cope with this reality? What kind of transformations might better equip regimes to manage the complex relationships and realities with which they are confronted?
Self-isolation will in no way eliminate collisions between regimes and "alien" issue areas. The regimes comprising international law, it would seem, have no choice but to adapt to fragmentation, complexity, and the increasingly irrelevance of the normative boundaries between issue areas. Regimes must, then, become more responsive to the shifting social context in which they continue to operate and must find ways to effectively decode and react to the signals they receive from international society by way of these interactions.
In the trade-environment context, Oren Perez usefully develops the idea of ecological "sensitivity" as a means of describing this necessary evolution. The "sensitising [of] the WTO to environmental concerns" is the ultimate result of necessary "normative transformation." (45) The goal, for Perez, is not a perfect integration of environmental concerns into the institutional and normative structures of the WTO. Indeed, " [t]he search for more responsive legal structures should not be perceived ... as a search for perfect 'internalisation.'" (46)
Parallels can perhaps be drawn with Young's observations regarding the importance of appreciating the extent to which, and the ways in which, regimes "are removed from their social embeddedness." (47) The notion of "social embeddedness" was, of course, famously deployed by Karl Polanyi to describe the relationship between market economies, on the one hand, and society and social relations, on the other. In particular, the term is used to depict the tendency of markets (and the effects flowing from this tendency) to remove (or "dis-embed") themselves from social context so as to operate unconstrained and according to their own logics, embedding within themselves (and thus subordinating to these logics) the social context and relationships they have escaped. (48) For Young, this line of questioning is essential toward determining the extent to and manner in which the law is able to reflect international society. (49) This accords well with Perez's notion of regime "sensitivity." So as to better reflect social realities and relationships, regimes must become more self-conscious of their own tendencies to dis-embed themselves from the social context in which they operate.
This would also seem to dovetail with Andreas Fischer-Lescano and Gunther Teu bner's notion of "compatabilization techniques." Isolated regimes must uncover ways of undergoing self-transformation from within. This occurs through a process wherein a "'re-entry' of conflicting law" within a regime occurs, thereby enabling a sort of "translation" of conflicting rationalities and their compatabilization with those of the recipient regime. (50) Fischer-Lescano and Teubner draw from the Doha Declaration on TRIPS and Public Health, which emanated from the WTO in response to concerns over the effects that TRIPS was having upon public health in the developing world, as an example of this phenomenon in action. The Doha Declaration illustrates how
the economically oriented WTO regime has created an internal limitation on its own logic through the reformulation of a principle of health protection. This compatibilization technique allows to build [s/c] responsive external linkages within its own perspective of economic rationality. Such a "re-entry" of conflicting law within one's own legal system allows for the translation of rationality collisions within the qunestio iuris ... (51)
In essence, what must occur is the reorganization of a regime's own internal logic in such a way that "external" rationalities are deeply integrated through a process of internalization. This kind of transformation extends beyond superficial efforts to merely accommodate, in a piecemeal or tokenistic fashion, the logics of outside issues or regimes, but rather occurs at the much deeper level of the regime's own internal rationalities. It must come from within, not be imposed from without. As such, in the further example of the troubled relationship between the WTO and the environment,
this means that the re-entry of environmental rationalities within the self-organization of this regime should be promoted; that is, a re-entry extending far beyond the very narrow terms of Articles 7, 11 and 3.2 of the DSU [Dispute Settlement Understanding]. The reconstruction of non-WTO law within the WTO legal system would then not be an external imposition of limits but the internal achievement of the WTO regime itself and would reflect upon a process of mutual constitution. (52)
Further insights might be draw from the literature on "reflexivity" in law. (53) David Schneiderman, for example, has put this theory to use in the investment context. Schneiderman tracks and examines the degree to and ways in which the investment regime responds to the social and environmental "irritants" that it comes into contact with so as to gain a sense of its "reflexivity." He appears to examine the regime's capacity (through its actors and rules) to respond appropriately and autonomously (that is, without political direction) to such concerns, noting only partial evidence that this is taking place. (54)
So, how is this kind of transformative change effected? How do regimes become--and, importantly, how can they be encouraged to become--more environmentally responsive or sensitive? Overcoming or avoiding conflict in international law between regimes and interests or issues outside their existential preoccupation is impossible. However, this does not mean that these collisions must necessarily lead to undesirable outcomes. In fact, counter-intuitively perhaps, it is these very conflicts that can prove to be the greatest driver in encouraging more openness in regimes.
Young provides some useful guidance in her treatment of "regime interactions." According to Young, regimes should become more open to interaction with one another so as to better respond to the global issues that challenge the boundaries that divide them. However, these interactions have the potential to do more harm than good. Indeed, "[a]n acceptance of unchecked regime interaction risks arbitrary and undisciplined decision-making." (55) The end goal, then, is not necessarily more cohesion within the international legal order. In fact, in the context of international fragmentation, Martti Koskeneimmi and Paivi Leino have argued against greater cohesion. (56) Rather, for Young, what should be sought is the promotion of more "productive friction" in these interactions. (57)
According to Young, interactions can be shaped so that the synergies that are produced can be harnessed so as to render international law more responsive to international society. This in turn will lead to better solutions to pervasive global issues. (58) Although Young's notion of "productive friction" arises in the context of interactions between different regimes in international law, it seems applicable to the relationship between individual regimes and the alien interests with which they are faced. Such interactions play out in a manner that is similar to those occurring between separate regimes. Through conflict, they bring to isolated regimes direct awareness of the multitude of "alien" interests and processes at play within their sphere of influence and operation. They essentially force regimes to respond to shifts in on-the-ground social context, often by generating new approaches. In this way, they bring to the attention of these otherwise closed-off regimes their normative and procedural blind spots, providing them with direction for necessary adaptation and change. In turn, in line with Young's theory, this would seem to lead towards an international legal system in which regimes are able to better respond to social realities.
Just as these collisions are inevitable, so too, it would seem, is regime transformation. As Tams and Hofmann have noted in the investment context,
[i]n engaging with 'others,' investment law itself changes; the traces [are] left on it by domestic law, by human rights law and by international environmental law ... The investment law that reveals itself in these reactions is not monolithic. In responding, it constitutes itself--but in a dynamic and atomised area of law, this is a constant process. (59)
Schneiderman seems similarly to see the potential for transformation through conflict. In querying the extent of the investment regime's "reflexivity," for example, he tracks how responses "to the perturbations introduced by competing social sub-systems ... [through] conflicts are resulting in the introduction of new limitative constitutional norms within the regime itself." (60) Increased "reflexivity" or "sensitivity" to outside concerns appears, then, to be reliant upon such collisions.
These interactions may take on a variety of forms. However, as underscored in Fischer-Lescano and Teubner's discussion of the WTO, the DSU, and the environment, it follows that fruitful interactions entail more than a pro forma exercise in (re-)drafting treaties and other legal documents to account for a wider array of norms an interests that exist in international law. Rather, truly productive interactions should engender and encourage transformation from within legal regimes. As noted above, these interactions should provide occasion for the "'re-entry' of conflicting law" within a regime, thereby enabling a sort of "translation" of conflicting rationalities and their compatiblization with those of the recipient regime. (61) In this way, "productive" interactions must go beyond merely making available more adjudicative tools for those tasked with deciding between conflicting norms. Rather, they should be such that they lead to transformation within a regime--to its opening up and its reception to seemingly conflicting norms from other regimes in a way that renders the law more responsive to on-the-ground realities. Resort merely to rules of treaty application will not respond adequately to the dynamic, complex, and hierarchical nature of the relationships that define the problem.
In the investment-environment context, some have argued that the task of reconciling various normative conflicts can be accomplished by turning to rules of treaty interpretation such as Articles 31 or 32 of the Vienna Convention on the Law of Treaties (VCLT), the leges posteriori rule, the leges speciali rule, or the principle of ejusdem generis. (62) The solution, it often follows, involves elaborating upon the adjudicative toolkit available to arbitrators or drafting future IIAs so as to better clarify the relationship between investment and the environment. Freya Baetens, for example, suggests that "[f]uture IIAs should include references to the social, environmental, and human rights of the State Parties." (63) Alessandra Astriti makes a similar argument, suggesting that drafting IIAs with more precise language could lead to more "textual determinacy" and could "contribute to clarify" the "uneasy" relationship between investment and the environment. (64)
Such approaches, insofar as they resort to principles of international law to "resolve" conflicts by clarifying the hierarchy between investment and environmental regulation, seem to go only so far. For example, while additional references to the environment in IIAs provides some general clarity around the relationship between investment law and the environment, the ultimate determination remains within the gambit of arbitrator discretion in ISDS. (65) While such references may make it more difficult for arbitrators to ignore environmental concerns in their decision-making, they may not reveal the entire palette of interests at play. That is, this approach does little to properly contextualize the circumstances of the dispute that extend beyond matters that the investment regime is prepared to address.
Along similar lines, Di Benedetto has identified 3 categories of "tribunal arguments and treaty-making solutions" to integrating environmental issues: internal approaches, systemic interpretive methods, and exception-based models. (66) He notes, however, that "by suggesting an order, these categories try to rationalize what is otherwise a chaotic quantity of legal materials, with each simply following an independent, patchwork logic in relation to the instruments and cases involved." (67)
Rather, reconciliation may be better achieved through a process that, in essence, politicizes the processes through which these collisions occur. As Jacobs notes,
the only possible perspective for dealing with such policy conflicts is the explicit politicization of legal norm collisions through power mechanisms, negotiations between relevant collective actors, public debate and collective decisions. (68)
If, in the end, regimes are to be more responsive to on-the-ground environmental realities, in order to encourage deeper regime transformation, these interactions, too, must go further. They must provoke change within a regime's individual "principles of vision." (69) Andrew Lang notes that
[different international legal regimes tend to have different logics which express and embody different normative biases, so that 'coordination' between regimes is therefore always about hierarchising those preferences in particular contexts. Achieving 'coherence' in the international order means achieving a particular kind of coherence--'balancing' the demands of each regime always means achieving a particular kind of balance--which inevitably favours some interests and values over others. (70)
What Lang appears to be hinting at is that the process of "balancing" must itself be politicized. If, in the investment context, this process is left entirely to the mechanisms, actors, and norms that already constitute the ISDS system, the regime's inherent "normative biases" will inevitably dictate (or presuppose) the outcome of this balancing in favour of economic interests. It is these "inner logics and dynamics" of a regime that must be laid bare and transformed. (71)
Perez makes a similar observation. As various complex economic systems in international law struggle to adapt to "environmental irritations," their reactions are a result of their internal structures (and not external directives). (72) The task, he seems to propose, is one of figuring out where these systems are blind to environmental concerns and then finding ways to adjust the structure of this closure--not trying to change the structure of these systems or eliminating these blind spots altogether. (73) Proposals for change cannot properly "resolve" the tensions that exist between the investment regime and the environment. Rather, they must be concerned with channeling these tensions more productively.
To recap briefly, it seems that the international investment regime will, inevitably, be faced with collisions with its "others," such as those relating to environmental regulation. If it is to manage the complex and inevitable social and environmental realities in which it operates, so as to deal with these encounters and better respond to international society--particularly with respect to the environment--the regimen must become more open, self-aware, and environmentally sensitive. The collisions themselves will instigate and guide the regime's necessary internal transformation. The result is a self-reinforcing process of sorts in which collisions between the environment and the investment regime spur on the regime's transformative opening, which in turn ensures that these interactions become both easier and more productive.
Of course, the argument could be made that the international regime is in actuality sufficiently sensitive, and that its current structures, norms, logic, and relationship to environmental concerns in fact reflect genuinely the needs and interests of international society. However, as will be become clearer below, the nature of these collisions--and the very fact of their existence and continued growth--would seem to indicate otherwise.
III. WHERE AND HOW HAVE INTERACTIONS OCCURRED BETWEEN INVESTMENT AND ENVIRONMENT?
So, how does the situation described above play out more tangibly in the international investment regime? This section explores this question by mapping out the points at which the investment regime and the environment intersect; assessing the nature of these interactions; and obtaining a sense of how NGOs might bring about more productive interactions.
1. Ever the Twain Shall Meet? The International Investment Regime and its "Others"
As an "economic" regime, ISDS has long come under scrutiny for the way in which it has encountered its social and environmental "others" in both international and domestic law. Commentators have been particularly interested in the investment regime's relationship to human rights, (74) and to environmental norms. My focus will be the latter.
Environmental norms and laws that have been implicated, one way or another, in ISDS include pesticide bans, (75) laws designed to protect water bodies, (76) the prohibition of bulk water exports, (77) and pollution protection initiatives. (78) Governmental activity that has attracted the ire of foreign investors includes expropriation of ecologically sensitive land to establish natural reserves, (79) permitting for operation of landfill sites, (80) decisions relating to water extraction, water distribution concessions (81) or waste treatment activities, (82) renewable energy policy, (83) and "political" decisions around energy relating to nuclear power (84) and tracking. (85) Decision-making processes that have been at the centre of disputes include environmental assessments, (86) permitting around natural resource extraction activities, (87) and damages awarded against investors for environmental liability in judicial proceedings. (88) Exact numbers are not available, though there is some indication that the environment is increasingly at issue in ISDS disputes. (89)
What generally, has been the regime's response when it has collided with environmental concerns? As noted, the investment regime inevitably changes as a result of its encounters with the environment. However, by way of preliminary observation, it appears that while these interactions have led to some opening of the regime, they remain, by and large, tentative and of limited effect.
This can be seen, in particular, in the ways in which the regime's actors have borrowed norms from other regimes in arbitration of disputes. Under both the ICSID Convention as well as a number of IIAs, tribunals have the explicit power to apply rules from other international legal regimes. However, under ICSID, for example, the provision that thus empowers tribunals is worded vaguely and in such a way that it ultimately affords maximum arbitrator discretion in determining its applicability. Article 42(1) provides
The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable. (90)
As such, the scope and applicability of other norms from international law to ISDS disputes is unclear. Moreover, recent tribunal interpretation of similar provisions in IIAs reveals that tribunals may be uncomfortable taking an expansive reading of such powers when confronted with the potential applicability of outside "social" norms. (91)
Nevertheless, tribunals do, on occasion, apply norms from outside international regimes. (92) Much has been written, (93) for example, about the use of the principle of proportionality from European Court of Human Rights (ECtHR) jurisprudence by the tribunal in Teemed v Mexico. (94), A similar turn to proportionality has since occurred in other disputes. (95) In that tribunals have turned to an "alien" norm (from the human rights regime) in resolving a conflict between the investment regime's own norms and environmental regulation, this would seem to be a promising move towards regime transformation. However, Alec Stone Sweet notes that the rare tribunals that have done so have tended towards a "timid" application of the principle. (96) This seems to have been the case in Teemed, where the tribunal, in ultimately determining that the measure at issue was not, in fact, proportional, "declined to provide the kind of scholastic exposition, or doctrinal justification, which a self-conscious doctrinal move toward proportionality might have generated" and failed to follow a "step-by-step procedure" (97) as would be de rigueur in ECtHR jurisprudence. The principle has also not been adopted uniformly or pervasively since the Teemed decision. (98) Schneiderman makes the observation, further, that when arbitrators do draw upon norms from other regimes, they tend to look to relatively friendly, economic regimes such as WTO law. (99) He notes that looking to norms emanating from the WTO system "is to seek out reinforcements entirely in sync with the project of spreading economic liberalism worldwide." (100) Put another way, by favouring the importation of norms from the WTO regime over others, the investment regime is legitimizing the normative project that underpins its own development and is bolstering the norms upon which it already relies to define itself. Conversely, incorporating norms from alien regimes might go some distance in eroding--or at least transforming--these foundations and characteristics. Additionally, even when a tribunal considers potential international environmental norms, often the approach ultimately taken in rendering a decision is purely "economic" in nature. (101)
This apparent timidity in embracing alien norms is seen in particular in the way in which tribunals have dealt with conflict between investor rights under an IIA and State obligations under domestic or international environmental law. Tribunals have looked to environmental norms in their decision-making, though have been more likely to make mention of, as opposed to actually apply, norms from international environmental law. (102)
Ricardo Pavoni notes that while international environmental law is generally applicable to ISDS proceedings, its "applicability has not yet been translated into unequivocal and consistent reliance on environmental principles and rules by investment tribunals in the pertinent cases." (103) Citing the Biwater Gaujf and Methanex cases, Pavoni documents several instances in which tribunals have been invited to consider the relevance of principles of environmental law or sustainable development but have shied away from doing so. (104) And while it ought to be noted that the Respondent State, the US, won the Methanex dispute and no damages were awarded against the Respondent State (Tanzania) in Biwater Gaujf, (105) Pavoni sees more willingness by tribunals to engage with environmental norms when the dispute involves conflict with a State's obligation under a multilateral environmental agreement. (106) However, such obligations have not always provided adequate defence to derogation from the obligation to protect investor rights under IIAs. In SD Myers, for example, Canada was found in violation of NAFTA when its ban of the export of PCBs--which was done as part of its commitment under the Basel Convention (107)--affected the economic activities of the claimant investor, whose business involved the disposal of PCB waste. (108)
Additionally, tribunals have not seemingly exercised their inherent powers to introduce these issues of their own volition. Chester Brown notes that under the principle of jura novit curia, international courts are permitted to raise points of law without a party to the proceedings having done so and reasons that international investment tribunals would be similarly empowered. (109) While he holds this out as a potential avenue for bringing sustainable development norms and interests to the table in dispute in which they are implicated, he notes that tribunals have not, to date, seemed keen to do so. (110)
A tribunal may in fact be more likely to look to environmental norms when adjudicating disputes under certain IIAs such as NAFTA, which includes explicit provisions relating to environmental protection. (111) It is true that, particularly in recent years, more and more environmental references have found their way into the regime by way of incorporation in IIAs. With reference to a sample of over 1,800 IIAs, for example, Astreti documents that 9.4 per cent contain some kind of overt reference to the environment. (112) However, very few of these provisions are procedural in nature, and where they do exist, they generally remain vague and aspirational in nature. (113) Moreover, as Kyla Tienhaara observes, it remains ultimately at the discretion of arbitrators to interpret how and under what circumstances a state may exercise its right to regulate. (114) The haziness of these provisions, coupled with the general vagueness of IIAs and the lack of procedural provisions referring to the environment, leads potentially to investment-focused decisions that "[make] extensive use of policy arguments in order to increase the level of protection granted to the investor." (115) So, while, as Astriti observes, the introduction of these environmental provisions in IIAS
constitutes a significant change in the functioning of the investment regime ... [t]he particular structure of the investment regime has meant that process determinacy has been accompanied by a form of decentralised production, which makes the double functions of law, predictability and stabilisation, problematic. (116)
In other words, despite these hints of a growing attentiveness to environmental concerns within the regime, it has been a lukewarm transformation, impeded by the nature of the regime's inner structure and logic.
Even given the brevity of this overview, it can be said that interactions between the investment and environmental regimes in ISDS remain tentative. Despite overtures in decisions and references in treaties to norms from the environmental regime, environmental norms continue to be sidelined in a weighting that would seem to privilege "economic" considerations and investor rights over other considerations. Rather, there is little evidence of genuine "re-entry" of environmental norms into the investment regime, which remains relatively closed off, self-isolating, and unresponsive to local environmental concerns. Where the regime has displayed some degree of environmental responsiveness--such as in the incorporation of environmental norms into IIAs--it is done superficially and ineffectively. Where the regime has innovated such responses, as Schneiderman remarks, it has seemingly "been encouraged or prompted by critiques issuing out of states and social movements regarding the system's deleterious effects on state capacity and social and environmental degradation." (117) That is, the regime has demonstrated little capacity or willingness to transform of its own volition.
2. NGOs in the International Investment Regime
Given the environmental unresponsiveness and closed-off nature of the investment regime, as emerges from the above depiction, it seems injudicious to expect the regime to appreciate or respond to the environmental ramifications of its interactions with locally authored regulation through ISDS. Moreover, as noted, the state may be hesitant to insist upon, or instigate, sufficient institutional or doctrinal reform for fear of appearing inhospitable to foreign investment. In this light, NGOs become crucial actors in the process not only of ensuring environmental interests are accounted for in ISDS but also of transforming the regime. It first bears exploring more generally the role of NGOs in the international investment regime, which is the subject of discussion in this section.
As hinted at in the introduction, several features of the investment regime (and of ISDS in particular) endow NGOs with an especial function. One such feature is the role and position of arbitrators in ISDS. Arbitrators have attracted criticism for a lack of independence, (118) and biased decision-making. (119) Also, as discussed above, arbitrators have shown little of their own initiative in drawing from environmental norms, even when adjudicating disputes in which environmental regulation is at issue or under agreements that make explicit reference to the relevance of environmental norms or objectives. This reluctance can perhaps be explained by the culture of the international arbitration community, which seems accurately described as commercially oriented. (120) As Tienhaara notes, arbitrators tend to be experts in commercial law and do not, as a general rule, have much (if any) experience with environmental law. (121) Schneiderman makes a related point. The problem, he seems to say, is not that the regime is completely closed off to "external influences " per se, but rather that
in so far as it is responsive to its own shortcomings[,] those responses will be determined by the regime's own principal players (lawyers, arbitrators, academics). These actors will respond in accordance with the regime's own embedded preferences employing the regime's own terminology and typically not according to the logic of competing sub-systems, such as international environmental or human rights law. (122)
This harkens back to Lang's contention that it is a regime's inner "principles of vision," which must be confronted--a challenge, it would seem, that can only be mounted from actors that come from outside the regime--if transformation is to occur.
NGOs, then, are in a position to do this, mainly by bringing otherwise unfamiliar environmental concerns to the tribunal's attention and offering expertise in environmental law. NGOs are uniquely situated, as well, to offer "local" expertise on the potential and actual impacts arising from a dispute.
A second feature is the unique role non-state actors play in the investment regime and in ISDS in particular. Patrick Dumberry and Erik Labelle-Eastaugh note that " [i]nternational investment law is arguably the sphere of international law in which non-state actors play the greatest role." (123) As highlighted in previous sections, with limited exceptions, the investment regime grants access to the dispute settlement mechanisms embedded within international treaties exclusively to a set of non-state actors--namely foreign investors, the majority of which are large multi-national corporations (MNCs). While this unprecedented arrangement may not elevate these actors to the status of subject in international law, (124) it has afforded them a tremendous amount of influence in shaping the investment regime and its constitutive norms. (125)
This feature feeds into--and is sustained by--a third feature: the role of the State in the investment regime. The operation of the regime and the powerful position it affords investors casts the traditional role of the State in protecting the public interest in a somewhat ambivalent light. While in the course of ISDS the State finds itself in the position of defending its right to craft environmental regulation most appropriate to national circumstances, in signing IIAs in the first place, it is also, to a certain extent, negotiating away its ability to do just that--potentially placing it in an awkward position.
It is, of course, important not to over-generalize on this point. The State has by no means retreated entirely from its role in representing the public interest; neither are NGOs necessarily better positioned than the State to represent the public interest in ISDS proceedings. And the degree to which NGOs can and do offer information and expertise that states cannot (or are not willing or able to) is not always clear. However, NGOs are often plugged in to local concerns and realities and may be less encumbered by larger political concerns--or fears over impacts to FDI flows--in presenting these concerns in ISDS proceedings. At the very least, NGOs can offer a complementary perspective that strengthens the State's position with respect to the public interest in proceedings.
These factors potentially position NGOs to fill a void in representing local environmental interests in ISDS--as both a counterbalance to powerful investor interests and in lieu of, or as spur or complement to, the state. This is augmented by the often highly localized nature of the effects of ISDS outcomes--which, as described, can affect local decision making relating to issues such as land use, environmental assessment, and pollution prevention--as they relate to the environment. The very local character of the impacts of disputes uniquely positions NGOs (particularly locally based ones) to ensure that these local interests are accounted for in ISDS proceedings. This may be particularly the case in states where democratically accountable institutions may be weak or lacking altogether.
Of course, the legitimacy of NGOs has also come into question. Despite claims to the contrary, it is not always evident that NGOs are, in fact, effectively representing local interests. Multi-national NGOs based out of the "developed" world have long come under scrutiny for imposing solutions and approaches on developing world countries and communities that poorly reflect local interests and cultures. (126) These questions are certainly live in the context of amicus participation in ISDS, as it is often the case that such efforts are undertaken by, or with the assistance of, international (usually Western-based) NGOs. (127)
Overall, however, the unique makeup of the investment regime, and the particular role of NGOs within it, then, means that the involvement of these actors has two potential and interrelated effects. First, by bringing concerns related to the environment forward, NGOs force interactions between the regime and these "alien" concerns. These are concerns that might not otherwise have a channel for entry into the regime and that, as can be seen from the overview of the previous sections, the investment regime's actors would likely otherwise forgo. NGO involvement can foster awareness of environmental concerns and local realities for decision-makers from within the investment regime and forces them to account (however weakly) for these issues. In so doing, NGOs contribute to a re-politicization, in essence, of the regime, creating openings for greater debate and negotiation over the appropriate balance between investor and environmental protection when these two sets of interests run afoul of one another in the ISDS process. Simultaneously, by finding, exploiting, and even creating points of entry for these interactions, NGOs contribute to a process of opening up within the regime. Their increasing involvement, then, makes it more difficult for the investment regime to avoid these discussions and harder for it to remain inward looking, closed off, and unresponsive to collisions with other regimes. Ultimately, these interventions have the potential to anchor "the emergence ... of the idea of civil society" in the arbitral world. (128)
a. The amicus curiae brief in ISDS
The foremost forum for NGOs in this activity is ISDS, and their tool the amicus curiae brief. (129) In ISDS, the first amicus curiae applications arose under NAFTA. These first requests were made in 2000 by an international sustainable development NGO to the tribunal in Methanex v United States. Briefly, third party involvement was not contemplated, at the time, either in NAFTA or under the rules under which the dispute was proceeding (UNCITRAL), so the Methanex tribunal's eventual decision to accept the submissions was path-breaking. Several subsequent NAFTA arbitrations saw non-disputing parties apply to make amicus curiae submissions. In UPS v Canada, several months after the initial Methanex ruling regarding the admission in principle of third party submissions, the Canadian Union of Postal Workers and the Council of Canadians applied both to be added as parties to the proceedings and, failing that, to be permitted to make submissions. Both requests were denied. (130)
More recently, however, it has become commonplace for NAFTA tribunals to accept applications from would-be amici curiae. Since the seminal decision in Methanex, tribunals have accepted applications made by various applicants, including an industry lobby group, (131) unions and labour organizations, (132) First Nations governments, (133) and NGOs of various stripes. (134) Although there is a clear pattern of allowing such interventions, some NAFTA tribunals have rejected non-party (non-state) intervention applications, particularly when the public interest in allowing such intervention was not evident. (135)
Following Methanex, non-NAFTA tribunals began taking their cue from this experience. Although the first request under ICSID for amicus curiae status was rejected, (136) some subsequent applications were successful, beginning with the decision to allow the amicus participation of several environmental NGOs in the Suez/Vivendi arbitration against Argentina. (137) A variety of NGOs, (138) as well as the European Union, (139) have since been permitted to participate as amici in various cases. However, there has been some inconsistency across tribunals in allowing such participation, and amicus applications have been rejected in a number of cases. (140)
Consistency appears to be growing, as an evolution has also been evidenced in the procedural machinery of the investment regime over the last several years: the ICSID Rules now offer clearer rules for such non-party participation, (141) as do a variety of IIAs. (142) Recent changes introduced to the UNCITRAL rules similarly provide for the admission of third party briefs among other procedures. (143) This topic will be touched upon further below.
b. Good, bad, or something in between?
These developments have generated a vast literature addressing the emergence, use, and potential of amicus curiae briefs in ISDS. It is beyond the scope of this article to survey this landscape in its entirety. What will be sketched out below are several of the prominent positions either for or against the admission of amicus curiae submissions to ISDS proceedings. This will provide a fuller picture as to how NGOs can use amicus briefs (and whether they should) to bring greater environmental consciousness to the investment regime--a topic to be addressed by way of case study in part IV.
For many commentators, what role--if any--amicus curiae participation should play in ISDS is determinable largely by looking to the benefits to be reaped for the operation and continued existence of the system itself. For most, the key benefit lies in the ability of amicus curiae to better "legitimize" ISDS. The "legitimacy crisis" to which this line of thinking is responding is rooted in public concerns over the regime's apparent lack of transparency and accountability. (144) This is seen, for example, in the limited degree to which the public is invited (or permitted) to participate, and the un-elected and officially unaccountable status of arbitrators, despite the potential impacts of decisions upon sovereignty and the public interest. (145)
From this perspective, those who view the introduction of amicus curiae into the ISDS process as a positive development tend to focus on the potential of this form of participation to ameliorate perceived shortcomings within the system, particularly with respect to perceptions regarding its legitimacy, transparency, and accountability. Barnali Choudhury, for example, extols the potential for amicus curiae submissions, in increasing public participation, to cure the system's "democratic deficit." (146) She also sees the involvement of amicus curiae through the submission of briefs as a means of bolstering the legitimacy of ISDS. (147) Many others echo this perspective. (148) Anthony Van Duzer, for example, observes that its openness to amicus curiae participation "[u]ndoubtedly ... contributes to the legitimacy of NAFTA investor-state arbitration" (149) and calls for greater formalization of the process in arbitration rules. Significantly, arbitration tribunals have themselves on occasion noted that amicus curiae involvement in ISDS has a crucial role to play in enhancing the regime's legitimacy. (150)
Others in this camp are somewhat more ambivalent. Nigel Blackaby and Caroline Richard seem skeptical that the creation of processes to accommodate amicus curiae participation will alone be enough to resolve the lack of transparency and accountability--and resulting legitimacy crisis--perceived to plague the system. (151) They note, in fact, that unless accompanied by further procedural opening (such as access to the arbitration records and oral hearings, discussed further below), amici curiae may not be able to participate meaningfully, so their participation may end up "exacerbat[ing] the democratic deficit" while providing little assistance to the tribunal. (152)
Florian Grisel and Jorge Vinuales are also cautiously optimistic, seeing the potential for amicus participation to enhance the system's legitimacy, while also noting that many factors play into this potential success. (153) For some, such as Christina Knahr, it is too early for definitive assessments given the prospective positive and negative effects of the rise of amicus curiae in ISDS. (154) Her primary concern, particularly in light of recent applications by the European Commission to file amicus submissions in a number of disputes, (155) appears to revolve around the potential for such amici to co-opt the ISDS process, which, from her perspective, properly belongs to the disputing parties. (156)
For these and other commentators, concerns that militate against greater inclusion of amici curiae in ISDS coalesce around the potential impact of these briefs upon the continued, efficient operation of ISDS for foreign investors. For such commentators, while amicus involvement is to be welcomed insofar as it contributes to the smooth functioning of the system--potentially through its legitimization or de-mystification--vigilance must be maintained against the potential for it to otherwise affect the system. (157)
Some fear that what they perceive as the non-legitimate, unaccountable, and unrepresentative character of NGOs themselves can mean that their increased involvement in ISDS actually works to undermine its legitimacy. (158) Additional concerns that have been put forward along similar lines include the potential for "re-politicization" of the dispute settlement process relating to foreign investment, (159) for additional costs and burdens upon the parties, (160) and for the overwhelming of the system by a tsunami of would-be amici curiae (the 'floodgates' argument). (161)
Some commentators maintain that amicus curiae participation may offer further potential benefit in terms of the quality of tribunal decision making. Although speaking mostly of the WTO context, Laurence de Boisson de Chazournes, for example, notes that amici curiae can offer a "non-economic perspective" and unique expertise, (162) while fostering "creative legal thinking" in decision making. (163) In a similar vein, others have noted that the inclusion of amicus curiae is the best way to ensure that tribunals are made aware of the public interest that may be at stake in a dispute, therefore ensuring better decision making. (164) Going further, Tomoko Ishikawa argues that amici curiae can offer "more comprehensive legal arguments than the parties," can highlight the broader implications of decisions, and can bring forward issues that parties cannot or would not. (165)
Other commentators offer arguments either for or against increased amicus involvement that go beyond purported benefit or harm to the ISDS. For example, it has been noted that third world states have generally treated amicus involvement in proceedings with suspicion--presumably concerned that these interveners, coming, as they tend to, from the 'Global North,' will further tip the power balance against their interests. (166) Others see benefits that extend beyond increased legitimacy or more effective decision making in ISDS. Francesco Francioni, for example, appears to see the inclusion of amici curiae within the ISDS process as mechanism that boosts the legitimacy of civil society actors in the investment regime while also creating access to justice opportunities for these actors within the regime that begin to parallel those enjoyed by foreign investors. (167) Given the pressure that ISDS places upon state sovereignty over the design and implementation of public policy, he notes that amicus curiae involvement can facilitate the regime's reach into these policy areas such that they are accounted for in decision-making processes. (168)
Tienhaara offers cautious optimism for amicus involvement in ISDS "[f]rom an environmental perspective"--presumably in that they offer potentially some response to growing public concerns over the impact of ISDS upon environmental policy space. (169) Like many other commentators, however, she argues that changes that have facilitated greater inclusion of amicus curiae briefs have not going far enough, particularly in terms of transparency. Brown makes a similar environmental argument, finding that amicus access to ISDS proceedings can be, and is increasingly, a means of bringing sustainable development issues into ISDS and the investment regime. (170) Eric de Brabandere notes that it has enabled participation of marginalized groups (particularly First Nations). (171) He remains fairly pessimistic, however, pointing out, quite correctly, that amicus curiae participation "is not tantamount to participation as a party in the proceedings." (172) Blackaby and Richard are also less convinced. They seem to question the actual benefit to the public offered by amicus participation, warning of the potential this approach has towards simply adding another partisan party into the mix without actually making disputes more open for the public. (173) They argue further that states often do obtain public and civil society input in constructing their defence (so would-be amici already have the opportunity to weigh in on disputes through the usual democratic and lobbying channels). (174)
Clearly, then, as this wide range of opinions demonstrates, the import and utility of amicus curiae participation in ISDS is not a given. It would certainly be incorrect to take this practice as a panacea for curing the regime's shortcomings from the perspective of either the regimes proponents or its opponents.
However, to the extent that options are limited for NGOs to participate in the investment regime's processes, it provides a vital--and virtually exclusive--entry point. Moreover, this literature leaves uncanvassed the potential role for amici in the context of regime transformation. As will be explored in the next part, they provide a unique (if not ideal) forum for NGOs to encourage self-transformative processes within the regime.
IV. NGO EFFORTS TO BRING ENVIRONMENTAL ISSUES INTO THE INVESTMENT REGIME: PACIFIC RIM CAYMAN LLC V REPUBLIC OF EL SALVADOR
Given how weakly environmental norms and processes have penetrated the investment regime, and building upon the findings from part III, what role can and are NGOs playing in shaping the self-reinforcing push-pull dynamic between the regime and its environmental "others"? How successful have NGO efforts been? In an attempt to uncover answers for these questions, below I employ a case study to demonstrate how NGO use of amicus curiae briefs in ISDS might encourage, force, or instigate transformation in the regime by injecting environmental concerns into the process, creating (inadvertently or intentionally) more environmental consciousness and openness for the further introduction of such concerns.
In 2008, Pac Rim Cayman LLC, a purportedly American company, (175) filed notice of intent to bring a claim against the Republic of El Salvador under the Dominican Republic-United States-Central American Free Trade Agreement (CAFTA). (176) It did this when, several years after discovering deposits of silver and gold on land over which it owned the right to explore, it did not receive the necessary environmental permits to begin exploitation activities. (177) It based its claim on a long list of grounds under both CAFTA and Salvadoran investment law, including that an unlawful expropriation of its investment had occurred; that El Salvador had failed to protect its investment; that it had been denied most favoured nation and corresponding national treatment; and that it had been treated arbitrarily and discriminatorily. (178) It made reference both to the fact that it had received no decision on its permit application as well as to the then-president of El Salvador's public announcement of his opposition "in principle" to the granting of further mining licenses in the country until a new legislative approach to mining and environmental protection in the country had been crafted. (179)
As the claim proceeded towards an initial decision on jurisdiction, (180) on 2 March 2011, as provided for under CAFTA and the ICSID Arbitration Rules-and following the unusual public release of a procedural order regarding amicus curiae participation in the proceedings(181)--an alliance of local NGOs applied for leave to submit an amicus curiae brief to the tribunal as a non-disputing party intervener. (182) The NGO consortium received authorization to submit an amicus curiae brief in a procedural order released by the tribunal on 23 March 2011, (183) and they did so officially on 20 May 2011. (184)
1. The amicus curiae brief
The amici's main approach with their brief appears to involve both contextualizing and redefining the dispute as something more than merely investment-related. For example, they attempt to reframe the dispute as one between the investor and the communities affected by its proposed projects--communities with otherwise little recourse for offering input into such projects--rather than as one between the investor and the government of El Salvador:
Critical to ascertaining these jurisdictional issues is an understanding that the real opposition to Pac Rim's mining plans was not generated at the level of government ministries, but rather at the level of the local, potentially affected communities. (185)
They further tie this contestation to a broader historical context. Specifically, they underscore the relevance of the country's bloody civil war and subsequent democratization struggles, linking this context to land rights and local environmental stewardship. They note that
[l]ocal communities and NGOs, including amici, in reflection of their hard-fought empowerment and awareness of their own rights, and in a legitimate exercise of the democratic process in the post-Civil War political environment, refused to accept Pac Rim's plans to dig mines under their own lawfully owned land, build dangerous waste ponds, and otherwise threaten the continuity of their environment, livelihoods, and way of life. (186)
They also highlight the potential human and environmental impacts of the dispute and its outcome, emphasizing that "[t]he potentially affected local communities do matter[;] [i]t is their land, their livelihoods, their well-being and fundamental rights that are at stake here" (187) and catalogue illegal investor activities and adverse environmental impacts. (188)
An additional feature of the amici's approach is its resistance to the investor's characterization of the "political" dimension of the treatment it received as unlawful under international and domestic investment law. Rather, linking the events at the core of the dispute to a more general "political debate concerning sustainability, metals mining, and democracy in El Salvador, " (189) the amici reject as inappropriate the interpretation of CAFTA's investment protection such that it would render the agreement "a strict liability insurance policy guaranteeing foreign investors 100% protection against all risk ... designed to stand in the way of history, or freeze public policy developments." (190) The amici employ these observations in support of their claim that the dispute is not a "legal dispute" as provided under Article 25 of ICSID, nor a "measure" under Article 10 of CAFTA (and hence that the tribunal lacks jurisdiction in its adjudication).
2. Impacts: The Tribunal's Response to the Brief
In contrast to some earlier tribunals, (191) the Pac Rim tribunal seems to actively engage with the amicus submission before it. It mentions the circumstances of the amici's involvement and outlines the issues raised in their brief, making particular reference to arguments that depart from those offered by the respondent. (192) It goes further yet, by making explicit reference to--and even drawing from--these arguments throughout the decision, seeming to indicate that many (if not all) of the amici's arguments were given serious consideration during its decision making.
The tribunal, in fact, refers to and quotes from the amicus brief extensively. As seen with the Methan ex tribunal, for example, the arguments the tribunal seems most interested in are not those relating to the unique environmental perspective that the amici attempt to bring to the table, but rather those relating to the interpretation of the treaty provisions at issue in the dispute. Specifically, the tribunal outlines the gist of the amici's argument--alongside those of the disputing and non-disputing state parties--with respect to whether an "abuse of process" had transpired such that would require the tribunal to decline jurisdiction. (193) It takes particular interest in the arguments that differ from those offered by the respondent state--especially the amici's argument that the investor's attempt to relocate what was essentially a dispute between itself and locally affected communities to a forum at which they would have limited rights to participate constituted an abuse of process. (194) Even though the tribunal does not ultimately adopt this line of reasoning, the fact that the amici's arguments were addressed offers some indication of its openness to their submissions.
As a further sign of engagement, the tribunal addresses specifically (although rejects) the amici's argument that the investor's corporate restructuring, to the extent that it was done for the purpose of accessing investor benefits under CAFTA, constituted an abuse of process. It noted that "[hoping to access CAFTA] ... is not a sufficient answer to determine the issue of Abuse of Process in this case. The Tribunal does not accept the arguments made to the contrary in the Amicus Curiae Submission." (195) Although the amici's arguments do not figure into the tribunal's ultimate reasoning, the tribunal's willingness to address the substance of the amicus brief is illuminating.
Additionally, the tribunal considers the amici's arguments with respect to El Salvador's use of the denial of benefits clause, singling out quotations from the brief that showcase how the amici's perspective focuses on potential negative local impacts of interpreting the substance of the clause too narrowly. (196) It also makes (albeit fleeting) mention of the amici's arguments with respect to these impacts and difficulties for the Host State in support of its decision. (197)
Overall, however, while the tribunal takes care to respond, to some extent, to the submission, it does not take up the amici's invitation to consider relevant outside environmental (and human rights) norms or concerns (such as environmental stewardship) in its decision-making. This hesitation to respond directly to concerns or to draw from or introduce "alien" norms into ISDS, despite the cogent invitation to do so from NGOs with an expertise to offer, may suggest that there is something more to this hesitancy than lack of awareness or lack of comfort with these other areas of law.
That said, although not responsive to the amici's arguments and concerns, the tribunal demonstrates an awareness of the importance of having such participation in general. This may reflect a genuine move towards (or appreciation of the necessity of) greater openness and environmental responsiveness in the regime. Alternatively, it may merely reflect a shrewd understanding of the usefulness of such participation in creating the impression of greater openness--perhaps in response to concerns about the regime's legitimacy or democratic deficit.
3. Conclusions from the Case Study
As has been stressed, the Pac Rim experience provides merely a glimpse into the role NGOs can play--and are playing--in encouraging greater environmental sensitivity in the regime. As such, definitive conclusions cannot be drawn. Moreover, given that tribunal deliberations are conducted outside of the public view, the degree to which arbitrators have been preoccupied with the concerns brought to their attention by amici can only be inferred from the printed page.
That said, the Pac Rim experience appears to reflect a generally observable trend that even when amici demonstrate that they have something unique, important, or representative to offer to proceedings in which the environment is implicated, amicus curiae briefs are generally ignored. As Blackaby and Richard have noted, "[d]espite tribunals' professed concern with taking wider interests into account in the decision-making process, past practice shows that once amicus curiae briefs are submitted, tribunals rarely refer to them." (198) Tribunals have repeatedly proclaimed the importance and necessity of prospective amici in legitimately representing the public interest in ISDS proceedings in which it is at stake. (199) Yet, even when tribunals have acknowledged the public interest implications of a decision with which they are faced, they have tended not to consider seriously what the amici have to say. (200) Rather, tribunals (such as the Pac Rim one) appear to adopt a strategy of what Perez, in the WTO context, dubs "incorporate but ignore," (201) or what Ishikawa has described as possible "lip service." (202) That is, rather paradoxically, tribunals have come to profess, on the one hand, an awareness of the environmental public interest implicated in the disputes over which they preside. But when, on the other hand, as in Pac Rim, they are presented with a unique and informed perspective on these issues, they do little more than reference a few passages from briefs (if they respond at all). (203)
That said, direct reference to some of the content or arguments of the briefs seems, logically, to indicate that some kind of "re-entry" of environmental norms or genuine internalization (however weak) of environmental norms or concerns is occurring. Additionally, as has been stressed, and as Ishikawa notes, while "express reference ... does indicate some influence, no mention does not necessarily mean no influence." (204) It may, in other words, be difficult to detect the potentially subtle ways in which amicus curiae involvement in ISDS is influencing the regime and fostering greater environmental self-awareness. Even if the Pac Rim tribunal ultimately did not engage with most of the amici's arguments in its decision--particularly those that sought to introduce human rights and environmental concerns or norms into the mix--it may still have been mindful of these "alien" norms and concerns in its decision making. The amici's very presence in the dispute, in fact, may have had this effect.
This is a point echoed, to some extent, by Moritz Renner, who implies that the very fact that such submissions are admitted by tribunals at all is an indication that a larger process of "legal-political re-embedding of market processes" is afoot. (205) Ultimately, however, whatever environmental sensitivity and opening that NGO efforts, such as those of the Pac Rim amici, have cultivated in the regime, they can at best be described as tepid and undeveloped.
In this article, I have sought to examine the complex relationship between the investment regime and its environmental "others." More specifically, focusing on the use of amicus curiae briefs in ISDS, I have explored the role that NGOs have to play in both shaping and compelling these interactions so as to foster greater environmental responsiveness in the regime. My analysis has revealed that NGOs acting as amici curiae in ISDS do, in fact, have a crucial role in bringing about and contouring collisions between the investment regime and the environment in ways that lead to greater sensitivity to environmental concerns within the regime. However, as demonstrated by the Pac Rim case study, this potential has not to date been completely realized; the regime's decision making processes--its most powerful site of norm creation--remains relatively unresponsive to environmental concerns when confronted with them.
Situating these findings in a broader context, what other trends and structures can be detected within the regime that might be impacting upon the ability of NGOs to play this role in bringing about the regime's transformation? And, importantly, ought the regime be concerned with change?
Certainly, the capacity of NGOs to facilitate (more productive) interactions between the environment and the investment regime depends upon more than the mere possibility of submitting of amicus curiae briefs. This is a point well-articulated by Blackaby and Richard, who argue that the regime's current procedural rules make it doubtful that prospective amici will be able to participate meaningfully. (206) Renner seems to make a similar argument, noting that the "the contestation of dis-embedding movements in the arenas of transnational law can only be successful if, at the level of procedural law, these arenas are public and accessible to potential contestants." (207) Procedural openness more broadly, then, is vital if NGOs are to see their efforts have effect.
Importantly, and more specifically, securing access to the arbitration's documentation and to oral hearings has been consistently problematic for amici curiae. While it is beyond the scope of this article to provide a detailed account of disclosure procedures within the regime, (208) one key feature bears noting. While awards are more and more likely to be made publicly available, (209) amici have experienced challenges in obtaining access to other documentation, such as the parties' memorials. (210) Without access to these documents, amici are working blindly and are, in essence, left to imagine the key facts of the case and the parties' respective legal approaches. (211) Historically, requests for disclosure have largely been denied, (212) unless the dispute is being arbitrated under a treaty signed by state parties (such as Canada or the United States (US), for example) who themselves make awards and documents publicly available or otherwise require disclose of such documentation. (213) An additional, lingering problem for would-be amici is that participation is left to the discretion of arbitrators. Most treaties and rules do not offer much concrete guidance as to when arbitrators ought to accept amicus applications and the extent to which, if at all, they ought to consider or incorporate the perspectives that accepted amici bring forward.
Nevertheless, in spite what such ongoing procedural encumbrances might indicate--and despite the picture painted by the Pac Rim experience--the regime may indeed be moving towards accommodating an enhanced and more influential role for public interest amici curiae. (214) Indeed, as discussed above in part III, NGOs have been in large part responsible for the recent and gradual procedural changes in the regime that have led to greater openness. The most obvious example of such amicus-driven changes pertains to the materialization of increasingly formalized mechanisms for amicus involvement. (215) Early efforts by would-be amici curiae have built momentum for a gradual but perceptible shift in the regime's culture--a procedural opening of the regime, which can perhaps be linked to a larger trend towards transparency in the regime. (216) By opening itself up to these actors and their concerns, the regime creates additional space for contestation.
The recent introduction of rules on transparency to the UNCITRAL rules may further signal that change is on the horizon. These rules, brought about as a result of pressure from civil society actors, compel parties to make a number of key documents available to the public. (217) However, these disclosure requirements do not apply to "confidential or protected information." This exemption applies to "confidential business information" as well as information otherwise protected under the provisions of the IIA, under the domestic law of the Respondent State, and, significantly, "under any law or rules determined by the arbitral tribunal to be applicable to the disclosure of such information." (218) Similarly, while hearings are now to be made public, there is a large exception carved out for when, vaguely, "there is a need to protect confidential information or the integrity of the arbitral process," in which case the hearing will be held behind closed doors. (219)
It must be noted, however, that this greater openness to the inclusion of amici curiae in ISDS has not seen universal uptake across the regime. (220) And certainly a largely inconsistent approach to amicus participation, particularly as it relates to transparency, continues to exist as between individual treaties. Moreover, emerging countertrends--such as the potential move of some ISDS proceedings to for a more traditionally preoccupied with commercial arbitration, (221) and the potential turn to mediation over arbitration (222)--may also temper some of the movement towards greater openness and transparency that is currently being witnessed.
Considering these countercurrents--and in light of what the Pac Rim case study reveals--an obvious final enquiry emerges. Could it be reasonably argued that the investment regime simply may not offer the best forum for difficult conversations regarding the appropriate balance between protection of the environment, on the one hand, and protection and promotion of foreign investment, on the other? (223) Certainly, as should now seem obvious, the investment regime was not designed to mediate these kinds of debates. Moreover, it is questionable that any amount of procedural tweaking will render investment tribunals well positioned to ultimately make these determinations. Additionally, of course, more access for amici curiae alone will not necessarily lead to greater environmental sensitivity and openness. For one, there is the potential that this could lead to increased access for the "wrong" kinds of actors. Commentators have pointed to concerns around the potentially dubious legitimacy of NGOs, the tendency of some NGOs towards unhelpful "scandalisation" (224) of debate over ISDS, and the potential for other actors (potentially with contrary agendas) to exploit this point of entry. (225)
Additionally, it can be argued that the language of treaties themselves may provide a superior forum for the introduction of greater environmental consciousness into the regime. Treaty texts do, increasingly, reference the special relationship between investor protection and environmental (and social) regulation. (226) While to date, the power of such environmental provisions is, at best, uncertain, stronger-worded provisions--ones that, perhaps, compel tribunals to consider environmental concerns in their decision making--would likely prove more effective than leaving it to amici to make similar requests. (227)
On a related note, states have not been oblivious or unresponsive to concerns about the investment regime, and state practice in this area has evolved to a significant extent over the last several years. (228) For example, many model bilateral investment treaties (BITs) (such as those of the US and Canada) have attempted to shield environmental and other public welfare regulation from arbitration through drafting language that would limit tribunals from finding such regulation to constitute indirect expropriation. (229) Australia made headlines in 2011 by announcing it would no longer sign investment treaties that included ISDS provisions (230)--although it may have more recently backed away from this position. (231) Other states, notably Bolivia, Ecuador, and Venezuela, have, more dramatically, taken steps to withdraw from the regime by renouncing the ICSID Convention and, at least in the case of Ecuador, withdrawing from its existing BITs. Another notable withdrawal has been that of Russia from the Energy Charter Treaty. Nevertheless--and while it may be "too early to tell the extent to which such third-party interveners will succeed in influencing the legal outcomes of arbitrations" (232)--NGOs are finding, creating, and exploiting points of entry within ISDS to bring about transformation within the investment regime and to make it more responsive to environmental norms and concerns. Ultimately, from the perspective of the regime's own logic, these incursions have the potential to improve arbitrator decision making; (233) to mitigate, to some extent, the regime's perceived "legitimacy crisis " (234) and to remedy the "democratic deficit" that some believe plagues the regime's decision-making processes. (235) And in many ways, it is irrelevant that ISDS is not the best place for these debates; quite simply put, this is where the drama is unfolding. It is a reality that the regime cannot ignore. It is time for the regime to more fulsomely adapt--a process in which the assistance of NGOs should not so readily be dismissed.
(1.) Empresas Lucchetti, SA and Lucchetti Peru, SA v The Republic of Peru,  Case No. ARB/03/4, (ICSID), online: <http://www.italaw.com/sites/default/files/case-documents/ita0275.pdf> [Lucchetti].
(2.) Pac Rim Cayman LLC v Republic of El Salvador,  Case No ARB/09/12, (ICSID) online: <http://www.italaw.com/sites/default/files/case-documents/ita0590.pdf> [Pac Rim decision on jurisdiction].
(3.) Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG v Federal Republic of Germany,  Case No ARB/09/6, (ICSID), online: <http://www.italaw.com/sites/default/files/ case-documents/ita0889.pdf> [Vattenfall],
(4.) See e.g. Joachim Pohl, Kekeletso Mashigo & Alexis Nohen, Dispute settlement provisions in international investment agreements: A large sample survey (2012) OECD Working Papers on International Investment, No. 2012/2, OECD Investment Division, online: <http://www.oecd.org/ daf/inv/investment-policy/WP-2012_2.pdf> at 9.
(5.) Recent examples include the Trans-Pacific Partnership (TPP) and the Transatlantic Trade Investment Partnership (TTIP), which are currently being negotiated, and the Canada-European Union Comprehensive Economic and Trade Agreement (CETA), negotiations for which have recently concluded and the resulting agreement signed.
(6.) Gralf-Peter Calliess & Moritz Renner, "The Public and the Private Dimensions of Transnational Commercial Law" (2009) 10:10 German LJ 1341, online: <http://www.germanlawjournal.com/ index.php?pageID=ll&artID=1211> at 1355.
(7.) Margaret A Young, "Introduction: The Productive Friction between Regimes" in Margaret A Young, ed., Regime Interaction in International Law: Facing Fragmentation (Cambridge: Cambridge University Press, 2011) at 11 [Young, "Introduction"]. She in turn has adapted this from Krasner's seminal definition from international relations discourses. See Stephen D Krasner, "Structural Causes and Regime Consequences: Regimes as Intervening Variables" in Stephen D Krasner, ed., International Regimes (Ithaca: Cornell University Press, 1983) 1 at 1.
(8.) Other examples of investment not normally regulated by IIAs include commercial loans, foreign portfolio investment, or state-backed (official) FDI.
(9.) Saverio Di Bendetto, International Investment Law and the Environment (Cheltenham: Edward Elgar, 2013).
(10.) Jeswald W Salacuse, The Law of Investment Treaties (Oxford: OUP, 2010) at 6.
(11.) Examples of regional agreements include the North American Free Trade Agreement, 1992, 32 ILM 289 [NAFTA], and the Central America-Dominican Republic-United States Free Trade Agreement, 2005,19 USCS [section]14011 [DR-CAFTA],
(12.) The Energy Charter Treaty, 1995, 2080 UNTS 95 [ECT] is an example.
(13.) See e.g. Salacuse, supra note 10 at 11-13.
(14.) Ibid, at 9. For a fulsome discussion on these standards, see e.g. ibid.; Muthucumaraswamy Sornarajah, The International Law on Foreign Investment, 2nd ed (Cambridge: Cambridge University Press, 2004). See also Andreas F Lowenfeld, International Economic Law: Second Edition (Oxford: OUP, 2008). Lowenfeld notes that "[considering the large number of BITs in force, they are remarkably similar" (ibid, at 555).
(15.) Fair and equitable treatment (or minimum standard of treatment, with which it is either synonymous or at least similar in idea to) is a nebulous and contentious standard and is one that is open to multiple interpretations. When interpreted restrictively, it is often equated to the minimum standard of treatment found in customary international law--that is, treatment so bad that it amounts to bad faith, willful neglect, an outrage, or a shock to the consciousness. When interpreted expansively, it offers protection for foreign investment that exceeds--and/or stands in addition to--that offered by the customary standard. Thus interpreted, it can be understood to protect investors from treatment that is more benign than that captured by the customary standard, such as that which is improper, unfair, inequitable, or that violates legitimate investor expectations.
(16.) A standard that attracts varying interpretations, full protection and security can be understood to ensure as little as investor's physical security in the host state to as much as legal security and the stability of the host state investment environment.
(17.) This standard is generally interpreted as either a right of entry for the foreign investor into the host state; as the investor's right to treatment equal to that enjoyed by national investors; or as both.
(18.) As in the trade context, MFN treatment ensures protection for the foreign investor against treatment less favourable than that offered by the host state to investors of non-party nations to an IIA.
(19.) This is generally understood to include "indirect expropriations"--that is, state regulatory actions that are tantamount to takings--as well as more direct expropriations (such as direct seizure of assets).
(20.) For a thorough accounting, see e.g. Salacuse, supra note 10; Sornarajah, supra note 14; Rudolf Dolzer & Christoph Schreuer, Principles of International Investment Law (Oxford: OUP, 2008); David Schneiderman, Constitutionalizing Economic Globalization: Investment Rules and Democracy's Promise (Cambridge, UK: Cambridge University Press, 2008) Ch 1 [Schneiderman, Constitutionalizing].
(21.) Salacuse, ibid, at 13.
(22.) Marc Jacob, "Faith Betrayed: International Investment Law and Human Rights" in Rainer Hofmann & Christian J Tarns, eds., International Investment Law and Its Others (Baden: Nomos, 2012) 25 at 32.
(23.) Stephen W Schill "Private Enforcement of International Investment Law: Why We Need Investor Standing in BIT Dispute Settlement" in Michael Waibel et al, eds., The Backlash Against Investment Arbitration (Alphen aan den Rijn, Wolters Kluwer, 2010) Ch 2 at 31.
(24.) See e.g. Ibrahim FI Shihata, "Towards a Greater De-politicization of Investment Disputes: The Roles of ICSID and MIGMA" in Kevin W Wu, Gero Verheyen, & Srilal M Perera, eds., Investing -with Confidence: Understanding Political Risk Management in the 21st Century, (Washington, DC: World Bank, 2009) 2. This paper was derived from a conference presentation Shiahata gave in 1985 (i.e., during the infancy of the investment regime). Shiahata, who was the Secretary General of ICSID and the Vice President and General Counsel of the World Bank at the time, extols the virtues of ICSID's capacity "to provide a forum for conflict resolution in a framework which carefully balances the interests and requirements of all the parties involved, and attempts in particular to 'depoliticize' the settlement of investment disputes" in light of the unstable history of such protection, particularly in Latin America (ibid, at 4).
(25.) See e.g. Amorkura Kawharu, "Participation of Non-Governmental Organizations in Investment Arbitration as Amicus Curiae" in Waibel et al, eds., supra note 23, 275 at 284 for discussion.
(26.) See e.g. NAFTA, supra note 11, art 1128.
(27.) ICSID Convention: Rules of Procedure for Arbitration Proceedings (Arbitration Rules), ICSID/15 (2006), c 4, art 37(2). This provision allows (but does not compel) arbitration panels to consider submissions from non-disputing parties. The same is true of the revised recently revisions to the UNICTRAL rules. See UNCITRAL Rules on Transparency in Treat-based Investor-State Arbitration, (2014), online: <http://www.uncitral.org/pdf/english/texts/arbitration/rules-ontransparency/Rules-on-Transparency-E.pdf >, art 4 [UNCITRAL Rules on Transparency]. Some IIAs include similar provisions. See e.g. DR-CAFTA, supra note 11, at art 10.20.3. This will be discussed further below.
(28.) For a detailed discussion, see International Law Commission, "Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law" (2006) Report of the Study Group of the International Law Commission, UNGAOR, 58th Sess, Doc A/ CN.4/L.682 (finalized by Martti Koskenneimi).
(29.) Ibid, at 11.
(30.) Jeffrey L Dunoff, "International Law in Perplexing Times" (2010) 25:1 Maryland J Int'l L 11 [Dunoff, "Perplexing"]; ibid.
(31.) Dunoff, "Perplexing," ibid, at 16.
(32.) Examples of such exceptions might include the principles of erga omnes and jus cogens.
(33.) Dunoff, "Perplexing," supra note 30 at 18.
(34.) Kenneth J Vandevelde, "A Brief History of International Investment Agreements" (2005) 12 UC Davis Int'l L & Pol'y 157 at 158-159.
(35.) See ibid, at 158-161; Gus Van Harten, Investment Treaty Arbitration and Public Law (Oxford: Oxford University Press, 2007) at 13-16. See also (and especially) Kate Miles, "International Investment Law: Origins, Imperialism and Conceptualizing the Environment" (2010) 21:1 Colo J Int'l Envt'l L & Pol'y 1 [Miles, "Origins, Imperialism"]. Miles links this colonial history to the regime's ongoing approach to the relationship between foreign investor and host-state environment. This history has also received treatment from Third World Approaches to International Law (TWAIL) scholars. See e.g. Sundya Pahuja, Decolonising International Law (Cambridge, UK: Cambridge University Press, 2011) Ch 4.
(36.) Van Harten, supra note 35 at 16-18.
(37.) Ibid. Van Harten notes that this was a more desirable state of affairs for recently decolonized capital-importing states (ibid, at 16).
(38.) Ibid at 18-23. Prominent examples include the aborted Havana Charter and the spectacularly failed Multilateral Agreement on Investment.
(39.) Ibid at 20.
(40.) Michael Waibel et al, "The Backlash against Investment Arbitration: Perceptions and Reality" in Waibel et al, supra note 23 at xlvi. See further Miles, "Origins, Imperialism," supra note 35 at 39 Miles goes further, observing that in the investment context "public interest is increasingly conceptualized as a collective of private business interests."
(41.) Jacob, supra note 22 at 42.
(42.) Freya Baetens, "The Kyoto Protocol in Investor-State Arbitration: Reconciling Climate Change and Investment Protection Objectives" in Marie-Claire Cordonier Segger, Markus W Gehring, & Andrew Newcombe, eds., Sustainable Development in World Investment Law (Alphen aan de Rijn: Kluwer Law International, 2011) 683 at 693.
(43.) Stephen Clarkson & Stepan Wood, A Perilous Imbalance: The Globalization of Canadian Law and Governance (Vancouver: UBC Press, 2010); Kyla Tienhaara, The Expropriation of Environmental Governance: Protecting Foreign Investors at the Expense of Public Policy (Cambridge, UK: Cambridge University Press, 2009) [Tienhaara, "Expropriation"]. In the climate change context, see Kate Miles, "Transforming Foreign Investment: Globalisation, the Environment, and a Climate of Controversy" (2007) 7 Macquarie L J 81 [Miles, "Transforming"]. Cf. Stephen Schill, "Do Investment Treaties Chill Unilateral State Regulation to Mitigate Climate Change?" (2007) 24:5 J Intl Alb 469. Schill argues, in essence, that such fears are overblown.
(44.) See generally Jorge E Vinuales, Foreign Investment and the Environment in International Law (Cambridge, UK: Cambridge University Press, 2012) [Vinuales, Foreign Investment]; Andreas Kulick, Global Public Interest in International Investment Law (Cambridge, UK: Cambridge University Press, 2012).
(45.) Oren Perez, Ecological Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Conflict (Oxford: Hart, 2004) at 94-95.
(46.) Ibid, at 28 [emphasis in original].
(47.) Young, "Introduction," supra note 7 at 11.
(48.) Karl Polanyi, The Great Transformation: The Political and Economic Origins of our Time (Boston: Beacon Press, 1944).
(49.) Young, "Introduction," supra note 7 at 11.
(50.) Andreas Fischer-Lescano & Gunther Teubner, "Regime Collisions: the vain search for legal unity in the fragmentation of international law" (2004) 25 Mich J Intl L 999 at 1030.
(51.) Ibid, at 1030 [footnote omitted].
(52.) Ibid. [footnote omitted].
(53.) So as to not commit to any particular theoretical framework or literature, I have chosen not to adopt any single term to describe this phenomenon, instead referring to it alternately as sensitivity, openness, consciousness, or responsiveness.
(54.) David Schneiderman, "Legitimacy and Reflexivity in International Investment Arbitration" (2011) 2:2 J Intl Dispute Settlement 471 [Schneiderman, "Legitimacy and Reflexivity"]. For more on reflexivity, see Gunther Teubner, "Substantive and Reflexive Elements in Modern Law" (1983) 17 L & Soc Rev 239. For an environmental treatment of the topic, see Eric W Orts, "Reflexive Environmental Law" (1995) 89 NWU L Rev 1227.
(55.) Margaret A Young, Trading Fish, Saving Fish: The Interaction between Regimes in International Law (Cambridge: Cambridge University Press, 2011) [Young, "Trading Fish"] at 24.
(56.) Martti Koskenniemi & Paivi Leino, "Fragmentation of International Law? Postmodern Anxieties" (2002) 15:3 Leiden J Intl L 553.
(57.) Young, "Introduction," supra note 7 at 1-2.
(58.) Ibid., noting that "the productive friction of 'regime interaction' may lead to a more responsive and effective international legal system than the sum of the constituent regimes."
(59.) Ranier Hofmann & Christian J Tarns, "International Investment Law and Its Others: Mapping the Ground" in Hofmann & Tams, eds., supra note 22, 2 at 11 [Hofmann & Tarns, "Mapping the Ground"].
(60.) Schneiderman, "Legitimacy and Reflexivity," supra note 54.
(61.) Fischer-Lescano & Teubner, supra note at 50 at 1030.
(62.) See discussion in Baetens, supra note 42.
(63.) Ibid, at 705.
(64.) Alessandra Asteriti, "Waiting for the Environmentalists: Environmental Language in Investment Treaties" in Hofmann & Tarns, eds., supra note 22,117 at 153.
(65.) This is a shortcoming that has been recognized by some of these commentators. Baetens, for example, notes that "tribunals cannot be expected to solve all problems" and that it is not ideal that the development of this important part of international law [the relationship between sustainable development and investment law] depends on the goodwill of an ad hoc panel to consider objectives outside the purely investor-related context--after all, this is the context from which it derives its jurisdiction.
See Baetens, supra note 42 at 715.
(66.) Di Bendetto, supra note 9 at 79.
(68.) Fischer-Lescano & Teubner, supra note 50 at 1003.
(69.) See generally Andrew TF Lang, "Legal Regimes and Professional Knowledge: The Internal Politics of Regime Definition" in Young, ed., supra note 7.
(70.) Ibid, at 113.
(71.) See ibid. Lang appears to be emphasizing that we should be looking beyond a regime's adjudicative processes to really see what is going on. Although he is referring to the relationship between different regimes in international law, the point bears making with reference to an individual regime's interactions with alien issue areas more broadly.
(72.) Perez, supra note 45 at 22.
(73.) Ibid. at 28-29.
(74.) A vast literature observing the oft-uneasy relationship between the regime and human rights has evolved in step with the regime itself. For an overview of the issue, see Barnali Choudhury, "Democratic Implications Arising from the Intersection of Investment Arbitration and Human Rights" (2009) 46:4 Alta L Rev 983; Moshe Hirsch, "Investment Tribunals and Human Rights: Divergent Paths," in Pierre-Marie Dupuy, Francesco Francioni & Ernst-Ulrich Petersmann, eds., Human Rights in International Investment Law and Arbitration (Oxford: OUP, 2009) 97; Patrick Dumberry & Gabrielle Dumas-Aubin, "When and How Allegations of Human Rights Violations can be Raised in Investor-State Arbitration" (2012) 13 J World Invest & Trade 349.
(75.) See e.g. Dow Agrosciences LLC v the Government of Canada "Notice of Arbitration" (31 March 2009), online: <hhttp://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/ pdfs/disp-diff/dow-02.pdf>; Chemtura Corporation v Government of Canada, (2 August 2010) UNCITRAL, online: <http://www.italaw.com/sites/default/files/case-documents/ita0149_0.pdf>.
(76.) See e.g. Lucchetti, supra note 1.
(77.) Sun Belt Water, Inc. v Government of Canada "Notice of Intent to Submit a Claim to Arbitration" (27 November 1998), online: <http://www.international.gc.ca/trade-agreements-accordscommerciaux/assets/pdfs/ disp-diff/sunbelt-01.pdf>. This claim has been inactive since 1998.
(78.) Tecnicas Medioambientales Teemed, SA v The United Mexican State  Case No ARB (AF)/00/2, (ICSID) online: <http://www.italaw.com/sites/default/files/case-documents/ita0854.pdf> [Teemed].
(79.) See e.g. CDSE v Costa Rica, Award of 17 February 2000, ICSID Case No ARB/91/1; Marion Unglaube and Reinhard Unglaube v Republic of Costa Rica,  Case No ARB/08/1, (ICSID) online: <http://www.italaw.com/sites/default/files/case-documents/ital052.pdf>; Spence et al v Republic of Costa Rica, notice of arbitration of 10 June 2013 (UNCITRAL).
(80.) Metalclad Corporation v The United Mexican States , Case No, ARB(AF)/97/l, (ICSID) online: <http://www.law.umaryland.edu/marshall/specialcollections/civiletti/ MetalCladCorpOpinion.pdf>; Waste Management, Inc. v United Mexican States, , Case No ARB(AF)/00/3, (ICSID) online: <http://www.italaw.com/sites/default/files/case-documents/ ita0900.pdf>; Vito G Gallo v The Government of Canada, , (UNCITRAL), online: <http://www. italaw.com/sites/default/files/case-documents/ita0351_0.pdf>.
(81.) See e.g. Aguas del Tunan, SA v Republic of Bolivia, , Case No ARB/02/3, (ICSID) online: <http://www.italaw.com/sites/default/files/case-documents/ita0020_0.pdf> [Tunan']; Compania de Aguas del Aconquija SA and Vivendi Universal SA v Argentine Republic, , Case No. ARB/97/3, (ICSID) online: <http://www.italaw.com/sites/default/files/case-documents/ita0215. pdf> [Vivendi].
(82.) See e.g. S.D. Myers, Inc. v Government of Canada  40 ILM 1408, (UNCITRAL) [SD Myers],
(83.) See e.g. Mesa Power Group, LLC v Government of Canada, "Notice of Arbitration," (4 October 2011), (UNCITRAL) online: <http://www.italaw.com/sites/default/files/case-documents/ italawl203.pdf>; Windstream Energy LLC v Government of Canada, notice of arbitration of 28 January 2013 (UNCITRAL).
(84.) See e.g. Vattenfall AB and others v Federal Republic of Germany, ICSID Case No ARB/12/12.
(85.) Lone Pines Resources Inc. v Government of Canada, notice of intent of 8 November 2012 (UNCITRAL).
(86.) See e.g. the recent decision in William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton, and Bilcon of Delaware Inc. v Government of Canada, Case No. 2009-04, (UNCITRAL) online: < http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/ disp-diff/clayton-12.pdf>.
(87.) Glamis Gold, Ltd v United States of America, Award of 8 June 2009, 48 ILM 1039 (2009) [Glamis]; Pac Rim decision on jurisdiction, supra note 2; Commerce Group Corp and San Sebastian Gold Mines, Inc. v The Republic of El Salvador, ICSID Case No ARB/09/17.
(88.) See e.g. Chevron Corporation and Texaco Petroleum Corporation v The Republic of Ecuador, UNCITRAL, PCA Case No 2009-23 [Chevron].
(89.) Vinuales, Foreign Investment, supra note 44 at 17. See also Recent Developments in Investor-State Dispute Settlement (April 2014), online: UNCTAD, IIA Issue Note, online: <http://unctad.org/en/ PublicationsLibrary/webdiaepcb2014d3_en.pdf> (identifying disputes with an environmental dimension and those relating to renewable energy policy as a trend in 2013).
(90.) ICSID Convention, supra note 27, at art 42(1) [emphasis added].
(91.) For example, one recent tribunal opined that a similarly worded provision in two IIAs did not "incorporate the universe of international law into the BITs or into disputes arising under the BITs." The ruling was used to deny an amicus curiae application by a European human rights NGO and a set of indigenous communities who were claiming that the international human rights law on indigenous people--in which they claimed to have expertise--was relevant to the proceedings. See Bernhard von Pezold and Others v Republic of Zimbabwe, ICSID Case No. ARB/10/15, Procedural Order No 2 (26 June 2012) at para 57 [Pezold].
(92.) For discussion, see Pierre-Marie Dupuy, "Unification Rather that Fragmentation of International Law? The Case of International Investment Law and Human Rights" in Dupuy, Petersmann & Francioni, eds., supra note 74, 45 at 56-57 (pointing to the Mondev and Methanex cases).
(93.) See e.g. David Schneiderman, "Investing in Democracy: Political Process and International Investment Law" (2010) 60:4 UTLJ 909.
(94.) Teemed, supra note 78. For discussion more generally about the use of proportionality by investment tribunals see Alec Stone Sweet, "Investor-State Arbitration: Proportionality's New Frontier" (2009) 4 L & Ethics of HR 47 [Stone Sweet, "Investor-State Arbitration"] at 68; Alec Stone Sweet & Giacinto della Cananea, "Proportionality, General Principles of Law, and Investor-State Arbitration: A Response to Jose Alvarez" Yale Law School, Public Law Research Paper No. 507 (9 May 2014), online (SSRN): <http://ssrn.com/abstract=2435307> [Stone Sweet, "Response to Jose Alvarez"].
(95.) See e.g., Azurix Corp v The Argentine Republic, ICSID Case No. ARB/01/12.
(96.) Stone Sweet, "Investor-State Arbitration," supra note 94 at 68.
(98.) Though see its adoption in Saluka Investments BVv The Czech Republic, partial award of 17 March 2006 (UNCITRAL); Continental Casualty Company v The Argentine Republic, ICSID Case No ARB/03/9.
(99.) Schneiderman, "Legitimacy and Reflexivity," supra note 54 at 490.
(101.) Ricardo Pavoni, "Environmental Rights Sustainable Development, and Investor-State Case Law: A Critical Approach" in Dupuy, Francioni, & Petersmann, eds., supra note 74, 525 at 542-543 citing specifically Methanex, though contrasting it to the approach taken by the tribunal in Parkerings.
(103.) Ibid at 528.
(104.) Ibid at 529.
(105.) I thank an anonymous reviewer for making this point.
(107.) Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 22 March 1989,1673 UNTS 57. The Basel Convention prohibits the export/import of hazardous wastes, such as PCBs from and to non-parties to the convention (and the US at the time was not a party).
(108.) SD Myers, supra note 82. It is well documented that before prohibiting the PCB ban that attracted the Chapter 11 lawsuit, then-Minister of the Environment Sheila Copps announced in open Parliament that PCBs ought to be processed in Canada to preserve Canadian jobs rather than shipped to the US, casting doubt on the sincerity of the environmental rationale behind the ban. The Basel Convention, moreover, does permit cross-border movement of hazardous waste when environmentally sound to do so (and shipment from some Canadian sites to certain US sites posed less risk than shipment to sites further afield within Canada). These factors provided foundation, in part, for the Tribunal's decision.
(109.) Chester Brown, "Bringing Sustainable Development Issues before Investment Treaty Tribunals" in Cordonier Segger, Gehring, & Newcombe, eds., supra note 42,175 at 184.
(111.) Ibid, at 530-532.
(112.) Asteriti, supra note 64 at 115-117.
(114.) Kyla Tienhaara, Expropriation, supra note 43 at 277.
(115.) Asteriti, supra note 64 at 152-153.
(116.) Ibid. at 154-155. She sees environmental provisions as providing something of a counterbalance to the regime's generally open-textured nature. As noted above in part II, she suggests that more precise language in IIAs could lead to more "textual determinacy" and "contribute to clarify" the "uneasy" investment-environment relationship. Ibid, at 153.
(117) Schneiderman, "Legitimacy and Reflexivity," supra note 54 at 483.
(118) See e.g. Nathalie Bernasconi-Osterwalder, Lise Johnson, & Fiona Marshall, "Arbitrator Independence and Impartiality: Examining the dual role of arbitrator and counsel" IV Annual Forum for Developing Country Investment Negotiators, Background Papers, New Delhi (27-29 October 2010), online: <http://www.iisd.org/pdf/2011/dci_2010_arbitrator_independence. pdf>. The problem relates to the practice of, and lack of rules around, sitting arbitrators acting simultaneously as counsel in another ISDS dispute. See also Van Harten, supra note 35.
(119.) See e.g. Gus Van Harten, "Arbitrator Behaviour in Asymmetrical Adjudication: An Empirical Study of Investment Treaty Arbitration" (2012) 50:1 Osgoode Hall LJ 211.
(120.) See for example the discussion in Tienhaara, Expropriation, supra note 43 at 143-144.
(121.) Ibid. at 206. Her review of the CVs of the arbitrators who decided several major decisions in which environmental regulation was implicated revealed that only 2 out of the 23 arbitrators involved in these decisions appeared to have had "any significant experience with environmental law." Ibid.
(122.) Schneiderman, "Legitimacy and Reflexivity," supra note 54 at 480.
(123.) Patrick Dumberry & Erik Labelle-Eastaugh, "Non-State Actors in International Investment Law: The Legal Personality of Corporations and NGOs in the Context of Investor-State Arbitration" in Jean d'Aspremont, ed., Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (New York: Routledge-Cavendish, 2011), 360 at 360.
(124.) See the discussion in ibid.
(125.) See e.g. Jacob, supra note 22, observing that BITs are drafted more by professionals than by diplomats.
(126.) For a TWAIL-ist perspective on this potential in the international trade context, see e.g. BS Chimni, "International institutions today: an imperial global state in the making" (2004) 15:1 EJIL 1.
(127.) Such was the case, for example, in the Tunari arbitration, supra note 81.
(128.) Francesco Francioni, "Access to Justice, Denial of Justice, and International Investment Law" in Dupuy, Francioni, & Petersmann, eds., supra note 74 at 63, 76.
(129.) There is a vast literature on the topic of amicus curiae briefs in investment law, some of which will be touched upon below. For a good overview, see e.g. Florian Grisel & Jorge Vinuales, "L'amicus curaie dans l'arbitrage d'investissment" (2007) 22:2 ICSID Rev 380; Christina Knahr, "The new rules on participation of non-disputing parties in ICSID arbitration: blessing or curse?" in Chester Brown & Kate Miles, eds., Evolution in Investment Treaty Law and Arbitration (Cambridge: Cambridge University Press, 2011) Ch 15 at 335; Nigel Blackaby & Caroline Richard, "Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration?" in Waibel et al., eds., supra note 23, Ch 10 at 254.
(130.) United Parcel Service of America Inc. v Government of Canada, Decision of the Tribunal on Petitions for Intervention and Participation as Amicus Curiae of 17 October 2001 (UNCITRAL). The request for party status was rejected outright. The request for amicus curiae status was determined to be, in principle, within the power of the tribunal to grant. However, the tribunal declined to do so at the jurisdictional stage of the proceedings on the basis that the interests and expertise of the amici were not such that they stood to offer assistance to the tribunal in its determination of jurisdiction. Meanwhile, the US Chamber of Commerce, a business lobby group, also applied for amicus curiae status but was rejected.
(131.) For example, the National Mining Association in Glamis, supra note 87.
(132.) Merrill & Ring Forestry LP v The Government of Canada Final Award of 31 March 2010 (UNCITRAL, ICSID Administered). The United Steel Workers; Communications, Energy and Paper-workers Union of Canada; and the British Columbia Federation of Labour were permitted to file a joint amicus submission.
(133.) Such as the Quechan Indian Nation in Glamis, supra note 87 and the Assembly of First Nations in Grand River Enterprises Six Nations, Ltd., et al. v United States of America (UNCITRAL).
(134.) Including the Sierra Club, Earthworks, and Friends of the Earth in Glamis.
(135.) For example, applications made by an industry lobby group, the Study Center for Sustainable Finance, and by Barry Appleton, an investment lawyer and self-proclaimed interested party and expert in investment arbitration (on behalf of himself), were recently declined by the tribunal in the ongoing Apotex v United States arbitration. See Apotex Holdings Inc. and Apotex Inc. v United States of America, ICSID Case No ARB(AF)/12/1 [Apotex v United States].
(136.) Tunari, supra note 78.
(137.) Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v Argentine Republic, ICSID Case No. ARB/03/19, "Amicus Curiae Submission" (April 4 2007) [Suez/ Vivendi amicus brief].
(138.) For example, in Suez/Vivendi, ibid., and Biwater Gauff (Tanzania) Limited v United Republic of Tanzania, Case No ARB/05/22 [Biwater final decision].
(139.) AES Summit Generation Limited and AES-Tisza Eromu Kft v The Republic of Hungary, ICSID Case No ARB/07/22 [AES]; Micula, Viorel Micula, SC European Food SA, SC Starmill SRL and SC Multipack SRL v. Romania, ICSID Case No ARB/05/20; Electrabel SA v. Republic of Hungary, ICSID Case No ARB/07/19 [Electrabel].
(140.) These applications were made mostly by public interest NGOs. See e.g. Chevron, supra note 88; Tunari, supra note 81; Pezold, supra note 91. Vivendi, supra note 81 was also rejected and involved an application from a group of NGOs and several named individuals.
(141.) ICSID Rules, supra note 27 at art 37(2). See below for discussion.
(142.) See e.g. DR-CAFTA, supra note 11 at art 10.20.3. For an excellent discussion of this landscape and its evolution, see generally Grisel & Vinuales, supra note 129.
(143.) UNCITRAL Rules on Transparency, supra note 27 at art 4. This set of rules came into effect on 1 April 2014. It should be noted that the impact of these new rules on the regime is, at least for the moment, rather limited, as they only apply where they have been incorporated into treaties concluded after 1 April 2014 or where they are otherwise expressly adopted. I thank an anonymous reviewer for this observation.
(144.) As a very small sample, see e.g. Charles H Blower, II, "Structure, Legitimacy, and NAFTA's Investment Chapter," (2003) 36 Vand J Transnat'l L 37; Susan D Franck, "The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent Decisions" (2005) 73 Fordham L Rev 1521.
(145.) See generally, for example, Van Harten, supra note 35.
(146.) Barnali Choudhury, "Recapturing Public Power: Is Investment Arbitration's Engagement of the Public Interest Contributing to the Democratic Deficit?" (2008) 41 Vand J Transnat'l L 775.
(148.) See e.g. Eugenia Levine, "Amicus Curiae in International Investment Arbitration: The Implications of an Increase in Third-Party" (2011) 20 Berkeley J Int'l L 200 at 219-220.
(149.) J Anthony Van Duzer "Enhancing Procedural Legitimacy of Investor-State Arbitration through Transparency and Amicus Curiae Participation" (2007) 52 McGill LJ 681 at 717.
(150.) See discussion below, infra.
(151.) Blackaby & Richard, supra note 129.
(152.) Ibid at 271.
(153.) Grisel & Vinuales, supra note 129.
(154.) Knahr, supra note 129.
(155.) See AES, supra note 139; Electrabel, supra note 139; Micula, supra note 139.
(156.) Knahr, supra note 129.
(157.) This sentiment is well captured by Vinuales, who notes that while enhanced legitimacy has obvious benefits for ISDS, amicus participation can also become a double-edged sword in that if badly used, amicus intervention could undermine the very arbitration regime it is supposed to strengthen. Whereas amicus intervention may help legitimize the overall arbitration system, such intervention may also erode the traditional basis of arbitral proceedings, namely the consent of the parties. See Jorge E Vinuales, "Amicus Intervention in Investor-State Arbitration" (2007) 61 Dispute Resolution J 57 [emphasis added] at 75.
(158.) See e.g. Blower II, supra note 144; Blackaby & Richard, supra note 129 at 269.
(159.) See e.g. Blackaby & Richard, ibid; Knahr, supra note 129; Noah Rubens, "Opening the Investment Arbitration Process: At What Cost, for What Benefit?" (2006) 3:3 Transnat'l Dispute Management.
(160.) See e.g. Levine, supra note 138; Rubens, ibid.
(161.) For a summary, see Kyla Tienhaara, "Third Party Participation in Investment-Environment Disputes: Recent Developments" (2007) 16:2 RECIEL 230 at 240 [Tienhaara, "Third Party Participation"]. This argument has seemingly fallen out of fashion more recently, perhaps as this concern has not borne itself out in either the international investment or WTO setting.
(162.) On the expertise point see also Tomoko Ishikawa, "Third Party Participation in Investment Treaty Arbitration" (2010) 59:2 Intl & Comp LQ 373 at 403.
(163.) Laurence de Boisson Chazournes, "Transparency and Amicus Curiae briefs" (2004) J World Invest & Trade 333 at 335.
(164.) See e.g. Andrew Newcombe & Axelle Lemaire, "Should Amici Curiae Participate in Investment Treaty Arbitrations ?" (2001) 5 Vindobona J 22.
(165.) Ishikawa, supra note 162, at 401-403.
(166.) See e.g. Boisson de Chazournes, supra note 163 at 336 discussing the phenomenon as it relates to the WTO.
(167.) Francioni, supra note 128.
(168.) He seems, in an indirect way, to advocate for a widening of the scope of arbitration and sees amicus curiae participation as a potential driver of this process. He notes that to the extent that amicus curiae briefs bring into the arbitral proceedings factual and legal considerations concerning the safeguarding of public goods, such as human and environmental health or the preservation of local cultural heritage, they can become a powerful tool to widen the scope of investment arbitration so as to encompass consideration of public policy concerns with regard to the adverse effects of an investment. See Francioni, "Access to Justice, Denial of Justice and International Investment Law" (2009) 20:3 EJIL 729 at 740 [Francioni, article].
(169.) Tienhaara, "Third Party Participation," supra note 161 at 242.
(170.) Brown, supra note 109.
(171.) Eric de Brabandere, "Non-state actors in international dispute settlement: Pragmatism in International Law" in d'Asprement, ed., supra note 123 at 353.
(172.) Ibid, at 354 [emphasis in original].
(173.) Blackaby & Richard, supra note 129 at 268.
(174.) Ibid, at 269.
(175) Prior to 2008, at which point the company reorganized under the laws of Nevada, it had been a Canadian-based company operating out of the Cayman Islands. Neither Canada nor the Cayman Islands are party to DR-CAFTA.
(176) Pac Rim Cayman LLC v Republic of El Salvador, ICSID Case No ARB/09/12, Notice of Intent to Arbitrate (9 December 2008).
(177) The investor contended that under Salvadoran law, by virtue of acquiring an exploration license for several packets of land in 2002, it also obtained automatically the right to eventually extract any mineral deposits found once it had obtained the necessary environmental permit. Ibid, at 7-8.
(178) It demanded 77 million USD in compensation. See Pac Rim Cayman LLC v Republic of El Salvador, ICSID Case No ARB/09/12, Notice of Arbitration, (30 April 2009) [Pac Rim, arbitration notice].
(179) See ibid., n 47, n 58; Pac Rim decision on jurisdiction, supra note 2 at paras 1.10--1.12
(180) Ultimately, the tribunal determined it had no jurisdiction to determine the DR-CAFTA claims, though it found jurisdiction to determine the merits of the claims made under other areas of investment law. Pac Rim, decision on jurisdiction, ibid.
(181) ICSID, News Release "Procedural Order Regarding Amicus Curiae" (2 February 2011), online: <http://www.italaw.com/sites/default/files/case-documents/ita0608.pdf>.
(182) Pac Rim Cayman LLC v Republic of El Salvador, ICSID Case No ARB/09/12, "Application for Permission to Proceed as Amici Curiae" (2 March 2011) [Pac Rim permission]. The consortium, Mesa Nacional Frente a la Mineria Metalica de El Salvador, was comprised of a mix of organizations whose activities encompass a range of issues, including development, human rights, environmental protection, poverty, civic participation, and community advocacy. The materials themselves were drafted and submitted by the Center for International Environmental Law. See ibid, at 3.
(181.) Pac Rim Cayman LLC v Republic of El Salvador, ICSID Case No ARB/09/12, Procedural Order 8 (23 March 2011) [Pac Rim Procedural Order 8].
(184.) Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No ARB/09/12, "Submission oi Amicus Curiae Brief" (20 May 2011) [Pac Rim amicus brief]. This submission was an edited version of the submission annexed to the March 2011 application. The edits reflect formal and substantive changes required by the tribunal in Procedural Order 8, ibid.
(185.) Pac Rim amicus brief, ibid.
(186.) Ibid. at 2-3.
(187.) Ibid. at 1.
(188.) Ibid. at 3. They made note, for example, of the investor trespassing and of water pollution resulting from the investor's exploratory activities.
(189.) Ibid. at 14.
(190.) Ibid. at 6 [footnotes omitted].
(191.) See e.g. Methanex Corporation v United States of America, Award of 3 August 2005, UNCITRAL [Methanex]; Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v Argentine Republic, ICSID Case No. ARB/03/19 [Suez/Vivendi final decision]; Glamis, supra note 87.
(192.) Pac Rim decision on jurisdiction, supra note 2 at paras 1.33--1.38.
(193.) Ibid, at paras 2.36-2.40.
(194.) Ibid, at para 2.40, citing to Pac Rim amicus brief, supra note 146 at 10.
(195.) Ibid, at para 2.43 [emphasis added].
(196.) Ibid, at paras 4.58-4.59.
(197.) Ibid, at para 4.85. The tribunal ultimately declined jurisdiction under DR-CAFTA (though not under Salvadoran investment law) on the grounds that El Salvador had successfully established proper use of the clause. See ibid, at para 4.92.
(198.) Blackaby & Richard, supra note 129 at 271.
(199.) See e.g. Methanex final decision, supra note 192 at para 49; Suez/Vivendi final decision, supra note 192 at para 18; Biwater final decision, supra note 138 at para 53.
(200.) See e.g.' Course the above discussion on Pac Rim, but also e.g. Suez/Vivendi final decision, ibid.; Glamis, supra note 87; Methanex final decision, ibid.
(201.) perez, SUpra note 45 at 102ff.
(202.) Ishikawa, supra note 162 at 408 (in reference to the tribunal's extensive quotation of the Biwater amici's brief, while ignoring the general substance of it in its actual decision making). Biwater Gauff (Tanzania) Limited v United Republic of Tanzania, Case No ARB/05/22, [Bizvater amicus curiae brief].
(203.) For additional examples of how tribunals have reacted to amicus submissions in environmentally related disputes, see e.g. Suez/Vivendi final decision, supra note 192; Methanex, supra note 192; Glamis, supra note 87. The tribunal in Biwater seems to depart somewhat from this trend. Although it does not ultimately adopt a particularly environmental perspective in its decision making, it explicitly notes that it "found the Amici's observations useful" and that "[t]heir submissions ... informed the analysis of claims set out [in the decision's reasoning]" (Biwater final decision, supra note 138 at para 392).
(204.) Ishikawa, supra note 162 at 409.
(205.) Moritz Renner, "The Dialectics of Transnational Economic Constitutionalism" in Christian Joerges & Josef Falke, eds., Karl Polanyi, Globalisation, and the Potential of Law in Transnational Markets (Oxford: Hart, 2011) 419 at 435-436.
(206.) They note that
"[i]t is questionable whether the admission of amicus curiae briefs alone increases the transparency and legitimacy of investment arbitration. Under the rules applied to the admission of amicus briefs, civil society groups are invited to file submissions without being able to review the parties' pleadings or attend the oral hearings. In the absence of public access to the arbitration record or to the oral proceedings, the content of such briefs is unlikely to be focused or helpful. At worst, the presence of amicus curiae--a further partisan party advocating a position on behalf of persons to whom it is unaccountable, behind closed doors, and without being afforded a full opportunity to make a meaningful contribution--may exacerbate the democratic deficit, politicize investment disputes, and disrupt proceedings, without assisting the tribunal to decide the matters in dispute."
(Blackaby & Richard, supra note 129 at 254). Although they are speaking in terms of the potential for amicus briefs to lend greater legitimacy to the regime, a similar argument can be made regarding the possibility of these briefs to encourage better interactions and environmental responsiveness.
(207.) Renner, supra note 206 at 436 [emphasis added].
(208.) por a detailed overview, with particular attention paid to the role of confidentiality, though published before the recent changes to the UNCITRAL rules, see Stephen Jagush & Jeffrey Sullivan, "A Comparison of ICSID and UNCITRAL Arbitration: Areas of Divergence and Concern" in Waibel et al, eds., supra note 24, 93 at 93ff.
(209.)ICSID itself will generally publish awards so long as both parties agree, and even where there is a disagreement, parties are themselves free to make the awards public. Prior to the introduction of the UNCITRAL Rules on Transparency, supra note 26, under the UNCITRAL rules, the publication of awards was only done with the consent of both parties (art 34(5)). However, even then, awards were generally made public. The recently introduced UNCITRAL Rules on Transparency now make publication of awards and other tribunal orders compulsory, with some exceptions (i.e., art 3).
(210.) Under the revised 2006 ICSID rules, it is at the discretion of tribunals to grant requests by amici for access. Before the introduction of the UNCITRAL Rules on Transparency in April 2014, the UNCITRAL rules came much closer to imposing an actual duty of confidentiality upon parties, meaning that disclosure was even more difficult to obtain.
(211.) Amici have themselves underscored repeatedly how this lack of disclosure hamstrings their ability to draft an effective and useful brief. See e.g. Biwater Gauff (Tanzania) Limited v United Republic of Tanzania, Case No ARB/05/22, "Petition for Amicus Curiae Status" of 27 November 2006" at section 1.3, noting that it was impossible for the amici to even fulfill the requirements for filing a petition under ICSID Rule 37(2) given the tribunal's decision to deny them access to the arbitration record.
(212.) Requests were denied in Interaguas, Suez, Tunari, Biwater, AES, and Pezold. The sole exception to this trend appears to be Foresti. For discussion, see e.g. Blackaby & Richard, supra note 129 at 267.
(213.) While it has long been Canada's practice to include provision for the public disclosure of documents from both parties to a dispute, the recently ratified Canada-China FIPA appears to make disclosure at the discretion of the state party, perhaps indicating a move away from this position. See Agreement Between the Government of Canada and the Government of the People's Republic of China for the Promotion and Reciprocal Protection of Investments, 9 September 2012, Can TS 2014/26 [entered into force 1 October 2014] online: < http://www.international.gc.ca/ trade-agreements-accords-commerciaux/agr-acc/fipa-apie/china-text-chine.aspx?lang=eng>. Article 28 provides that
"Where a disputing Contracting Party determines that it is in the public interest to do so and notifies the Tribunal of that determination, all other documents [other than a Tribunal award, which must be made publicly available] submitted to, or issued by, the Tribunal shall also be publicly available, subject to the redaction of confidential information."
For a critical discussion, see Gus Van Harten, How Canada Got Sold Down the Yangtze: Canada's lopsided FIPA with China (Toronto: IIAPP, 2015), Ch 22.
(214.) In the relatively recent Foresti dispute, for example, the tribunal issued a procedural order in which it granted access to these documents. Piero Foresti, Laura de Carli and others v. Republic of South Africa Letter of 5 October 2009, ICSID Case No. ARB(AF)/07/l. However, the case settled before the amici could file their brief.
(215) Following the request by NGOs to participate as amici in the Methanex dispute, for example, the FTC issued its seminal Statement on Non-Disputing Parties in NAFTA arbitration in 2003. See US Free Trade Commission, "Statement of the Free Trade Commission on non-disputing party participation" (Washington, DC: Department of State, 2003), online: <http://www.state. gov/documents/organization/38791.pdf>. Together with the application of further pressure of NGOs, this built momentum for revisions to both the ICSID Rules (in 2006) and now the UNCITRAL rules (in 2014), which now both provide tribunals with the power to admit third party submissions. See UNCITRAL Rules on Transparency, supra note 27, art 4.
(216.) For example, transparency--in terms both of the negotiation process but also of ISDS proceedings--has proven a major theme in the current TTIP negotiations.
(217.) UNCITRAL Rules on Transparency, ibid, at art 3(1). The documents to be made available are: the notice of arbitration; response to the notice; statement of claim; statement of defence; any further statements from parties; a table (if available) of exhibits to these documents, expert reports, and witness statements (though not the exhibits themselves); hearing transcripts; non-disputing/third party submissions; and the tribunal's orders and decisions. Witnesses statements and expert reports and exhibits are to be made available only upon request to the tribunal (ibid, at art 3(2)).
(218.) Ibid, at art 7.
(219.) Ibid. at art 6.
(220.) Many recently negotiated IIAs do not feature provisions outlining how tribunals should handle such applications.
(221.) For example, there are signs that the International Court of Commerce (ICC) is attempting to attract ISDS business and that a small but growing number of BITs employ its services for ISDS. See Lisa Bench Nieufeld, "The ICC New York Conference: Releasing a New Report" Kluwer Arbitration Blog (17 September 2012), online: <http://kluwerarbitrationblog.com/blog/2012/09/17/ the-icc-new-york-conference-releasing-a-new-report/>. The ICC, whose expertise lies in administering commercial arbitrations, does not tend to publish its decisions, as is commonplace in the tradition of commercial arbitration.
(222.) See Gary Born, "Beach Books, for Arbitration Lawyers ..." Kluwer Arbitration Blog (26 July 2013), online: <http://kluwerarbitrationblog.com/blog/2013/07/26/ beach-books-for-international-arbitration-lawyers/>.
(223.) For a discussion on this question in the trade and environment context, see Young, Trading Fish, supra note 55 at 245.
(224.) Hofmann & Tarns, supra note 22 at 10.
(225.) See Knahr, supra note 129, noting the EU's increasing interest in intervening in proceedings.
(226.) por discussion of the role of environmental language in treaty texts, see Asteriti, supra note 64.
(227.) I thank an anonymous reviewer for this observation.
(228.) por a good overview, see Liang-Ying Tan & Amal Bouchenaki, "Limiting Investor Access to Investment Arbitration: A Solution without a Problem?" in Jean E Kalicki & Anna Joubin-Bret, eds., Reshaping the Investor-State Dispute Settlement System: Journeys for the 21st Century (Leiden: Brill-Nijhoff, 2015), Ch 9.
(229.) For example, Annex B.13(l) of the Canadian Model BIT states:
The Parties confirm their shared understanding that:
... c) Except in rare circumstances, such as when a measure or series of measures are so severe in the light of their purpose that they cannot be reasonably viewed as having been adopted and applied in good faith, non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriation.
Canada Model BIT (Ottawa: Ministry of International Trade, 2004) online: <http://www.italaw. com/documents/Canadian2004-FIPA-model-en.pdf>. Similar language can be found in recent treaties that Canada has signed, including the Canada-China FIPA (Annex B.10 3) and CETA (Annex x.ll3).
(230.) Australian Government, Cillard Government Trade Policy Statement: Trading our Way to More Jobs and Prosperity (Canberra: Department of Foreign Affairs and Trade, April 2011), online: <http://www.acci.asn.au/getattachment/b9d3cfae-fc0c-4c2a-a3df-3f58228daf6d/GillardGovernment-Trade-Policy-Statement.aspx>.
(231.) The government's position now (at publication) appears to be that it considers inclusion of ISDS provisions on a "case-by-case basis." Government of Australia, Trade and Investment Topics: Investor-State Dispute Settlement (Canberra: Department of Foreign Affairs and Trade, 2016) online: <http://dfat.gov.au/trade/topics/Pages/isds.aspx>.
(232.) Dumberry & Labelle-Easthaugh, supra note 123 at 366.
(233.) See generally Ishikawa, supra note 162.
(234.) See e.g. J Anthony Van Duzer, supra note l49 at 717.
(235.) Choudhury, supra note 74.
KIRSTEN MIKADZE, LLM, JD. I would like to gratefully acknowledge funding received from McGill University in conjunction with the LLM thesis upon which this article is based. I am grateful to Jaye Ellis for her guidance and insight as well as to Sara Seek for sharing comments in relation to my thesis. I am also thankful to the anonymous peer reviewers of this article for their insightful comments. All views expressed, along with any errors, are my own.
|Printer friendly Cite/link Email Feedback|
|Publication:||Journal of International Law & International Relations|
|Date:||Mar 22, 2016|
|Previous Article:||Harmonizing the law to protect cultural diplomacy: the Foreign Cultural Exchange Jurisdictional Immunities Clarification Act.|
|Next Article:||The role of information sharing in counter-piracy in the horn of Africa region: a model for transnational criminal enforcement operations.|