Within the test of appropriateness of the subject matter of the case, the nut to be cracked is whether the case involves matters of public interest. In the decision on the participation by third parties, the tribunal found in Aguas Argentinas that the subject matter at hand acquired the level of “public interest of such a nature that have traditionally led courts and other tribunals to receive amicus submissions from suitable non-parties.”170 Additionally the tribunal points out that a public interest has in these previous cases been seen to exist when the decision in such cases have potential, direct or indirect, effects on others than the disputing parties.171 The tribunal thus makes reference to existing practice within international judicial proceedings where amicus curiae interventions have been accepted, but as mentioned without referring to any case law in specific.
In Aguas Argentinas the tribunal mentioned that the case at hand includes questions of a
particular public interest. This reasoning seems to suggest that there needs to be something
more than simply a ‘public interest’ for the subject matter to be appropriate for third party interventions. It can nevertheless be argued whether the higher level of particularity was something that the tribunal wanted to set up as a general requirement. The tribunal noted that nearly all arbitrations resolved under the ICSID comprise a certain public interest, but it did not explicitly state that there has to be a particular public interest for amicus curiae submissions to be possible. Instead the tribunal simply makes reference to other international fora and the nature of public interest that in these cases have legitimized the
169 Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi
Universal, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Order in response to
petition for Transparency and Participation as Amicus Curiae, 19 May 2005, §. 17.
170 Ibid., §. 20. 171 Ibid., §. 19.
acceptance of third party submissions. 172 Even though the tribunal neither addressed the notion of “particularity” in more detail nor whether it is a character that should be present for the prerequisite to be fulfilled, it specified that certain types of legal questions are by their nature of public interest and present in nearly every ICSID arbitration.173 It is therefore highly questionable whether the tribunal in the Aguas Argentinas case can be said to have instituted a requirement of a ‘particular public interest’, as has been put forward in some legal literature.174 Rather, what in this connection can be read out from the decision is that the required nature of public interest is depending on a bigger picture.
Highly relevant is that in connection with the ‘public interest’ debate, the tribunal also stated that not only will the acceptance of third party submissions help the court in its task, but it will also contribute to a more accepting view by the public towards international investment arbitral processes through enhanced legitimacy, openness and transparency.175 The tribunal also confirmed that the participation of potentially affected civil society representatives will contribute to a higher level of understanding by the public of the ICSID arbitration processes.176 This ICSID tribunal in other words acknowledged the need
for an improved image of investment arbitration in order to be more accepted by the public society as a whole, as a mechanism to settle this type of disputes. Other arbitral tribunals had already earlier acknowledged the same. The NAFTA cases Methanex and UPS from 2001, both under the 1976 UNCITRAL Arbitration Rules, addressed, as mentioned above, the matter of enhanced legitimacy through added transparency.177 We here thus see a
172 The tribunals does not enlighten the comparison by making reference to any specific case but
simply refers to previous proceedings in the practices where the NAFTA has been used, in front of the Iran-United States Claims Tribunal and the WTO (see Methanex Corporation v. United States
of America, UNCITRAL, Decision of the Tribunal on Petitions from Third Persons to Intervene as
“amici curiae”, 15 January 2001, §§. 32-33).
173 Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi
Universal, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Order in response to
petition for Transparency and Participation as Amicus Curiae, 19 May 2005, §. 19.
174 McLachlan et al. (2007), p. 58.
175 Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi
Universal, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Order in response to
petition for Transparency and Participation as Amicus Curiae, 19 May 2005, §. 22.
176 Ibid. See also Suez, Sociedad General de Aguas de Barcelona SA, and InterAguas Servicios
Integrales del Aqua S.A. v. The Argentine Republic, ICSID Case No. ARB/03/17, Order in
response to a petition for participation as Amicus Curiae, 17 March 2006, §. 21.
177 Methanex Corporation v. United States of America, UNCITRAL, Decision of the Tribunal on
Petitions from Third Persons to Intervene as “amici curiae”, 15 January 2001, § 49; United Parcel
Service of America Inc. v. Government of Canada, UNCITRAL, Decision of the Tribunal on
connection with the two arguments, public interest and legitimacy, that are discussed in chapter 4 below, regarding the underlying reasons for added transparency within investment arbitration.