Intervention by Third Parties in investment arbitration proceedings - and its impact on procedural efficiency Johan Sidklev, 18 November 2018 BCDR-AAA/SCC Joint Conference, Bahrain

Historical context– amicus curiae 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

Third party intervention in Pioneer NAFTA and ICSID Proceedings Post 2001, in the wake of Methanex, UPS and Glamis cases, a practice started to emerge In 2005 an ICSID tribunal allowed amicus intervention (Aguas Argentinas v. Argentina) The current ICSID Arbitration Rules came into effect in 2006 includes provision on third party intervention W/8680486/1

Relevant Considerations when Faced with 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

SCC Arbitration Rules (2017) SCC introduced new Arbitration Rules in 2017 Appendix III: special rules for investor-state arbitrations Appendix III has two Articles (Art. 3 and Art. 4) that deal with third party-intervention W/8680486/1

SCC Appendix III, Article 3 Requires consultation with the parties Gives tribunal discretion whether to allow intervention Lists mandatory, but not exhaustive, considerations: the interest of the Third Party in the arbitration if the intervention would assist the tribunal in determining a legal or factual issue other relevant circumstances Requires that intervention does not disrupt or unduly burden the proceedings or unduly prejudice any disputing party The Articles in SCC Appendix III are detailed and has further components W/8680486/1

SCC Appendix III Art. 3(7) – Clarifying the Amicus Brief request further details from the Third Person regarding the written submission; require that the Third Person attend a hearing to elaborate or be examined on its submission. Art. 3(7)The Arbitral Tribunal may, at the request of a disputing party, or on its own initiative: Promotes clarity Could potentially be determintal to efficiency and promptness if misused. W/8680486/1

Interventions by the European Commission Intervening in disputes where EU law may apply Objective: ensure enforcement of EU law Different type of interest than typical amicus curiae W/8680486/1

Benefits of Third Party Intervention Transparency and legitimacy Benefiting the system as a whole Bringing in valuable perspectives, e.g. NGO expertise Improving substantive quality of awards Preventing fragmentation of international law by allowing viewpoints from supranational bodies (e.g. European Commission) W/8680486/1

Implications Increase of practical burden on parties, incl. additional costs and delay Loss of confidentiality and privacy Re-politicization of international disputes Potential combined effect: less confidence in system W/8680486/1

Opposing interests – striking a balance Investment arbitration regime distinct from traditional commercial arbitration – imperative to satsify high standards of transparency and legitimacy Prevent fragmentation of international law ICSID Rule 37(2) and SCC Rules Appendix III provide tools to strike appropriate balance W/8680486/1

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