Investor Presentaiton
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The ICSID Arbitration Rules permit a tribunal to hold open
hearings if neither party objects (Rule 32(2)). 137 They also provide
for the protection of privileged or proprietary information. Several
hearings have been open to the public, often via closed-circuit
television and sometimes via web-streaming.
138
3. Amicus curiae participation in the proceedings
Another issue, often discussed in the context of transparency, is
the ability of third parties (amici curiae, or "friends of the court") to
participate in the arbitral process. The first requests of amici curiae
to participate in investment arbitrations were in cases under the
NAFTA. Since then, several tribunals, both those convened under
NAFTA Chapter 11 and under other IIAS, have concluded that they
had the authority to permit amici to participate, subject to various
limitations. The NAFTA parties issued guidance to tribunals about
the criteria they should use to decide whether particular aspiring
amici should participate, including the extent to which:
"(a) the submission would assist the tribunal in the
determination of a factual or legal issue related to the
arbitration by bringing a perspective, particular knowledge or
insight that is different from that of the disputing parties;
(b) the submission would address matters within the scope
of the dispute;
(c) the non-disputing party has a significant interest in the
arbitration; and
137 The same provision can be found in ICSID Additional Facility
Arbitration Rules, Article 39(2).
138 For instance, the hearings were webcast in Pac Rim Cayman LLC v.
Republic of El Salvador (ICSID Case No. ARB/09/12) and Railroad
Development Corporation v. Republic of Guatemala (ICSID Case No.
ARB/07/23). Webstreaming is available to the parties in all ICSID cases
should they wish to avail themselves of it.
UNCTAD Series on International Investment Agreements IIView entire presentation