Investor Presentaiton

126 INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL (d) there is a public interest in the subject-matter of the arbitration."139 The Canadian and United States Model BITs include provisions allowing parties that are not involved in the dispute to submit memorials, and authorizing arbitral tribunals to consider such submissions. These agreements stipulate in detail the procedures by which such amicus curiae briefs are to be submitted and administered in order to prevent them from negatively affecting the normal conduct of the arbitration. This explains, for instance, the screening mechanism included in Article 39 of the 2004 Canadian Model BIT, which provides certain criteria which the arbitral tribunal should use to decide whether a non-disputing party may file a submission, and, if the authorization is granted, provides guidance as to the weight that such submission should have in the proceedings. ICSID, too, amended its rules in 2006 to make explicit a tribunals' authority to permit amicus participation in ICSID Convention and ICSID Additional Facility cases. 140 The ability of amici to participate in the arbitration is not inevitably linked to the availability of information. In a case brought under the ICSID Convention, for example, an amicus curiae that is granted the ability to participate in a case will not have any right to receive the submissions of the disputing parties, though they may receive such documentation after redaction of any confidential information if the parties agree. There is increasing pressure from civil society to make the documents available even in the absence of the agreement of the disputing parties, at least to those third parties who have been granted amicus curiae status, so that they might better tailor their submissions in light of the parties' arguments. 139 Statement of the NAFTA Free Trade Commission on non-disputing party participation, 7 October 2004, para. 6. 140 ICSID Convention Arbitration Rule 37(2); ICSID Additional Facility Arbitration Rules Article 41(3). UNCTAD Series on International Investment Agreements II

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