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Third Party Intervention in Investment Arbitration: Impact on Efficiency

This article explores the historical context, relevant considerations, and implications of third party intervention in investment arbitration proceedings. The author discusses the benefits and challenges associated with such interventions and emphasizes the importance of striking a balance between the interests of the parties involved.

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Third Party Intervention in Investment Arbitration: Impact on Efficiency

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  1. Intervention by ThirdParties in investment arbitrationproceedings - and itsimpacton proceduralefficiency Johan Sidklev, 18 November 2018 BCDR-AAA/SCC JointConference, Bahrain

  2. Historicalcontext– amicuscuriae intervention • Amici Curiae (latin for "friend of the court") • Originating in Roman law • The third party can offer some information or insight other than that of the parties and thereby assist the decision maker • Typically the third party participates through written submissions (amicus briefs) • Decision-maker may (discretion) allow a third party to offer assistance W/8680486/1

  3. Third party intervention in Pioneer NAFTA and ICSID Proceedings • Post 2001, in the wakeofMethanex, UPS and Glamiscases, a practicestarted to emerge • In 2005 an ICSID tribunal allowedamicus intervention (Aguas Argentinas v. Argentina) • The current ICSID Arbitration Rulescameintoeffect in 2006 • includes provision on third party intervention W/8680486/1

  4. Relevant ConsiderationswhenFacedwith Intervention Request • Aguas Tribunal – a tribunal should consider: • appropriateness of subject matter • suitability of third party acting as amicus curiae • procedure by which amicus submission is made and considered • Safeguard following interests of the parties: fairness, effectiveness and promptness • Balance rights / interests of third parties with substantive and procedural rights of disputing parties W/8680486/1

  5. SCC Arbitration Rules (2017) W/8680486/1

  6. SCC Appendix III, Article3 W/8680486/1

  7. SCC Appendix III Art. 3(7) – Clarifying the AmicusBrief W/8680486/1

  8. Interventions by the European Commission • Intervening in disputeswhere EU law mayapply • Objective: ensureenforcementof EU law • Different typeofinterestthantypicalamicuscuriae W/8680486/1

  9. BenefitsofThird Party Intervention W/8680486/1

  10. Implications • Increaseof practical burden on parties, incl. additionalcosts and delay • Loss ofconfidentiality and privacy • Re-politicizationof international disputes • Potential combinedeffect: less confidence in system W/8680486/1

  11. Opposing interests – striking a balance • Investment arbitrationregimedistinct from traditionalcommercialarbitration–imperativeto satsifyhigh standards oftransparency and legitimacy • Preventfragmentationof international law • ICSID Rule 37(2) and SCC Rules Appendix III providetools to strike appropriatebalance W/8680486/1

  12. Thank you! Johan Sidklev Partner Contact +46 8 553 190 70 johan.sidklev@roschier.com W/8680486/1

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