Restrictions on Submissions of Amicus Briefs to NAFTA investment Arbitral Tribunals

Todd WeilerUniversity of Windsor, Canada

Neither of those two NAFTA Tribunals have actually accepted amicus briefs.  However, both have determined that they have the power to accept those briefs under Article 15 of the UNCITRAL Rules.  It remained quite clear, to both tribunals, that the decision whether to accept any amicus submissions would be based primarily on two factors:

1. whether the submissions would be helpful to the tribunal in deciding the merits properly; and
2. whether the submissions could be received in such a way as to avoid over-burdening (and therefore prejudicing) either party to the dispute.

As each tribunal has noted, there is no right of participation by non-parties in the present scheme (i.e. the NAFTA and the UNCITRAL or ICSID(AF) Rules).  Given that NAFTA Chapter 11 is modeled on the US Model BIT, the same could probably be said for most other investment protection treaty regimes. 

Two final thoughts:

What makes the NAFTA particularly interesting is that Articles 1127 and 1128 provide the other non-party NAFTA Parties with an opportunity to receive all of the documents generated in an arbitration (taken on the same basis as if they were a party to the arbitration) and the limited right to make submissions on the interpretation of the relevant NAFTA provisions at issue.  As Mexico has argued before both tribunals, if a Tribunal accepts amicus submissions it can be seen as having subverted the regime for non-party participation established in the NAFTA (but no other BIT, from what I know).  Even if a Tribunal can see its way through to accepting an amicus brief, if that brief contains anything more than simple arguments about the interpretation of the relevant provisions, will it not have diminished the right of non-party NAFTA governments under Article 1128?  The practical answer would be that either non-party NAFTA Party could make its own amicus submission (and in the process ignore the plain meaning of Article 1128).  Of course, this argument should not be taken too seriously because - as anyone who has ever brought a case in which Mexico has made 1128 submissions will tell you, Mexico has NEVER restricted itself to arguments as to the interpretation of NAFTA provisions anyway.  Rather, it has indulged itself in detailed examinations of the evidence and facts involved in the cases at issue - so in truth, it could be said that Mexico was actually the first non-party to have its amicu submissions accepted by a NAFTA Tribunal!!!

An another note, it would be useful to recall that in the two NAFTA cases where tribunals have stated that they have the authority to accept amicus submissions, both hearings were largely open to the public (for UPS v. Canada, people could even watch the oral hearings live; whereas for Methanex v. USA, generally all of the written arguments have been made public).  What happens when an amicus submission is attempted in a case where the proceedings are proceeding in confidence (as per Article 21 of the UNCITRAL Rules)?  I dare say that the submissions will not be particularly helpful to the tribunal (and are therefore likely to be rejected) if the people drafting them cannot gain access to the evidence or written arguments being generated.

Of course, you can find those two NAFTA awards, and everything else NAFTA, at: www.naftalaw.org.