Research On Participation In International Investment Treaty Arbitration As Amicus Curiae

With the huge development of global economy,the element of capital flows among various countries,which leads to the increasing amount of investment issues between individual investors and host countries or between the two countries or between the two individual investors.The investment issue between individual investors and host countries is becoming more serious.Accordingly,the international investment arbitration is becoming the main method to solve this kind of issues.The international investment treaty arbitration is based on the international investment treaties,while the disputing parties agree to arbitrate under specific arbitration rules,for example,NAFTA regulates that investor can chose one of the following arbitration referred as ICSID arbitration rule,ICSID additional facility arbitration rules and UNCITRAL.The controversy stemsfrom the fact that while arbitration is traditionally a largely confidential andprivate dispute resolution mechanism,the involvement of a State in the investment context can lead to arbitral decisions that affect a significantly broader range of actors than the two parties to the dispute.Commentators and civil society groups have called for increased public involvement in investment arbitration proceedings,to incorporate broader policy considerations into thedispute resolution process and add a measure of transparency.One avenue,which interested parties now increasingly rely on to includebroader interests in investor-State arbitration is amicus curiae,or third party,intervention in arbitral proceedings.This has been a common approach and applied extensively in large amount of international investment treaty arbitration.This paper seeks to analyze these issues,focusing on the potential for arbitration regimes to strike an appropriate balance between maintaining the key features of the arbitral institution and allowing relevant third-party input.The whole dissertation can be divided into four parts,and each part is referred as follows:Chapter 1 describes the definition and the history of amicus curiae.In different documents and different countries,there are various definition of amicus curiae,but all of which put emphasize on the assistanceprovidedfor the tribunals and the status as non-disputing parties.At the same time,it discusses how the amicus curiae develops from the national practice to the international practice and from the field of litigation to the field of arbitration.Chapter 2 traces recent developments inamicus participation in international investment treaties and international arbitration rules which have been modified for greater third-party involvement.First,it describes two statements issued by FTC which formally establishes the amicus curiae mechanism under NAFTA,and three cases which guided the establishment of amicus curiae.Then,under ICSID structure,the center issued two documents to confirm application of the amicus curiae.Finally,it describes the development of amicus curiae in UNCITRAL arbitration rules.Through comparing the similarities and differences among different documents and the modification of each document,some problems have been found from the perspective of theory.Chapter 3 focuses on the practical application of amicus curiae in the international investment treaty arbitration through the empirical research of eighteen cases.These cases are divided into two groups according to the applicable statutory text.Then according to the approval of amicus curiae request,cases in one of the group are divided into two groups referred as being totally refused and being partly refused.In each case,it tries to find the substantive requirements of the tribunal considering the acceptance of amicus curiae.Chapter 4 focuses on the implications of the rise in amicus participation and considers the need todevelop more specific criteria to determine whether amicus curiae participationshould be permitted in particular circumstances,and the form and extent of suchinvolvement in particular contexts.