1. 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

2. 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
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3. 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
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4. 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
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5. 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
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6. 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
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7. 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.
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8. 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
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9. 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)
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10. 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
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11. 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
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12. Thank you! Johan Sidklev Partner Contact +46 8 553 190 70
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