I spent yesterday at a Georgetown Law School conference on transparency and international arbitration. Ostensibly focused on arbitration writ large, the event tended to zero in on investor-state arbitration (and investment treaty arbitration more specifically).

While various arguments were aired for and against transparency, I was struck (anew) by the extent to which the transparency debate focuses on the rights of third-parties to intervene as so-called amicus curiae in investment treaty arbitrations.

These third-party interventions are front and centre in the minds of transparency proponents and opponents alike.

Advocates for such interventions like to stress how third-party interventions may lead to better tribunal decision-making, and provide for greater legitimacy to the arbitral process.

Critics complain that the interventions can increase the costs and duration of a case, as parties are obliged to reckon with one or more amicus briefs.

Whatever one’s views on the value and propriety of amicus curiae interventions, it’s remarkable how this particular issue has become a proxy or shorthand for transparency.

And I’m not sure that’s a good thing.

I think it’s important to draw a distinction between public disclosure of arbitration claims (and documents and pleadings related to those claims), and the question of third-party participation.

The former (disclosure of info) is clearly at the core of transparency; however, amicus curiae interventions should not be viewed as a substitute or proxy for transparency.

First of all, these interventions occur in only a tiny handful of investment treaty arbitrations. My back-of-the-envelope guess is that 400 to 500 treaty-based arbitrations have been initiated over the last 25 years; and amicus curiae interventions may have taken place in perhaps a dozen of those cases.

Moreover, such interventions may or may not lead to any additional opening of the arbitral proceedings to public scrutiny.

Oftentimes, NGOs in this field have tended to push for greater transparency as part of a given amicus curiae intervention.

However, there are also cases where a third-party intervention does not lead to more disclosure – or indeed may not be accompanied by any transparency demands.

Take, for instance, the recent interventions by the European Commission in a series of investment treaty arbitrations. The EC has been made privy to some arbitral documents in at least one of these cases, but none of these materials have been put into the public domain as a result of this intervention. Indeed, the EC has not asked for the process to be opened up to public scrutiny; nor has the EC obliged requests to disclose the briefs which it has filed in these arbitrations.

Clearly, it’s possible for amicus curiae interventions to have nothing to do with transparency whatsoever.

Why do I stress this point?

It’s not an excuse to give a hard time to would-be amicus curiae. (Indeed, as a journalist, I can appreciate that outsiders may seek privileged access to non-public materials in order to accomplish their own strategic objectives – whether that is the drafting of a legal brief or the preparation of a magazine article).

Rather, I’m dismayed by the tendency on the part of “opponents” of transparency to raise a series of objections which are actually motivated by their disagreement with or distaste for amicus curiae interventions.

Time and again, I’m told that “transparency” leads to a lot of costs and delays for the parties who have to grapple with outside legal arguments. Equally, I often hear about how the “right” of third-parties to intervene in proceedings is not recognized in many parts of the world.

I’m under no illusion that we lack for principled objections to real transparency (i.e. disclosure of information about cases), and I think it’s time we re-calibrated our focus in the debate over transparency.

I hope to look at some of the objections to transparency in a subsequent post, but in the interests of time and space, I wanted to start with this opening plea for us not to conflate transparency with third-party participation.

The two concepts may overlap or intersect. But they ain’t the same.

Luke Eric Peterson
http://www.InvestmentArbitrationReporter.com


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5 comments

  1. Very well argued. I would go so far as to say that amicus curiae interventions to have nothing to do with transparency whatsoever.

  2. To be clear, I think that would-be interveners have been some of the most vocal and long-standing proponents of transparency in this area. And I give them a lot of credit for that.

    However, the fact that would-be interveners have been the biggest champions of transparency also has certain drawbacks.

    Oftentimes, the “case for transparency” tends to get muddled together with the case for “third-party participation”, almost as if transparency was an instrumental good, rather than an intrinsic value in its own right. Third-party participation is a red rag for many people in the field, and the cause of transparency may not be best served by seeing it through the lens of the third-party participation debate.

    Indeed, I believe that the media, academics, and other would-be observers (as opposed to would-be interveners) who have no interest or desire to interpose themselves into arbitration proceedings need to be more vocal in making a principled case for basic transparency. More effort should be devoted to articulating stand-alone arguments – particularly those derived from human rights law, constitutional law or tenets of good governance – for the basic disclosure of information about these important proceedings.

    The right of the public to watch what is going on is one thing. The right of certain interested parties to interject themselves into proceedings is another thing. The former clearly facilitates the latter; but the former should not live or die on the basis of its facilitative or instrumental role alone.

  3. I’m not sure I understand why you pit the transparency and amicus curaie developments against each other rather than seeing them as natural allies, with any faults in the alliance being merely the product of strong opposition. The European Commission — and other intervenors — may simply not ask for full disclosure because they think it would prejudice or limit the scope of their own ability to get disclosure. So they are being self-interested, not putting the abstract interest in transparency ahead of their own interest in participation. I think that’s too be expected, and the scope of transparency that amici and other can demand will increase as the system becomes more accustomed to the demands. Are there any suggestions that any intervenors have or ever would actually prefer less transparency — that they would not all prefer a system such as U.S. Supreme Court amicus practice where almost all briefs are collected online and most underlying pleadings are publicly available?

    The reality is that disputes between two parties will often deeply affect third parties and society at large — the third parties certainly get that, as do journalists examining the issues. As does, for that matter, any investor who brings a claim for, say, creeping expropriation in the form of an environmental regulation. So the system should be designed to reflect this reality.

  4. The amicus curiae is a procedural device entitling a tribunal to either invite or allow a non-party to a lawsuit to offer insight on a particular point of law. Similar to their national counterparts, international tribunals also have an implied general power to admit amici curiae, which can assist international tribunals resolve matters before them; nothing to do with transparency. The main risk, however, arises from non-governmental organizations which claim a right to intervene as friends of the court. If the amicus curiae device evolves from a power of tribunals to a right of interest groups to intervene, there is the potential that international litigation can be used as an instrument by non-parties to the detriment of the rights of the parties.

  5. My area of expertise lies in the field of water rights adjudication and its historical development in the United States and in particular along the Rio Grande. I own no water rights in the Lower Rio Grande which decisional law says is a separate part of the Rio Grande based on the Rio Grande Compact. Our Canadian firm operating in the United States owns water rights in the Middle Rio Grande with prority of usage date that pre-dates anything in the Lower Rio Grande. Decisions and diversions in the Lower Rio Grande can affect our MRG water rights. My attempt at intervention has been denied by the Court. Now there are some inconvenient truths regarding the Rio Grande Project that have caused me to engage in amisus practice which is bitterly fought by our New Mexico State Engineer. Under Section 8 of the National Irrigation Act of June 17, 1902, the old Irrigation Service was required to obtain a Permit to build the project, store water, and distribute it to farmers of 90,000 acres. Without the permit everything done is ultra vires. There is no Permit. Yet, all actors would rather the matter go away. The only way to get this into the record, create transparency, and dispell 104 years of fiction, is to put it into an amicus brief. However that has been opposed by powerful interests who intend to perpetuate fiction. If opponents are successful, the amicus path will have failed. To further push the court, I have filed a separate action under an Inspection of Public Records Act to produce the Permit for inspection. This has also been opposed by a Rule 12(B) motion that includes a plethora of other motions that are only properly filed after an answer to the complaint. The 12(B) reasons were never argued at hearing but which the Judge granted simply to short-stop my attempt to achieve the same result as the amicus brief. In other words, the 12(B) motion was filed to avoid an answer and to shoe-horn other post precedential matters into the hearing. The conclusion is that I would strongly support amicus practice by third party interests for the sake of transparency particularly because it may not be in the interests of litigants to divulge the inconvenient truths into the court record. Practice before courts and arbitral panels is not the search for truth but it should be the search for truth by third party amicci or intervenors.

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