NGOs and the "Public Interest": The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes

Abstract Recent decades have seen a significant increase in the number of legal dispute settlement mechanisms, which has opened the door for NGO participation as "friends of the court." Confronted with unsolicited submissions by NGOs, the WTO dispute settlement organs and international investment tribunals have accepted the legality of such submissions. However, despite various decisions on the principled legality of amicus curiae submissions by NGOs, the effective acceptance or consideration of such submissions in particular cases remains limited. This Article aims to systematize the involvement of NGOs in international economic and investment disputes. This Article extracts the general principles for NGO participation in such disputes, both from the perspective of the legality of third-party interventions and from the perspective of the rationale, utility, and usefulness of such interventions in the dispute settlement processes, elements often linked to the "public interest" or 'public character" of a dispute. Table of Contents I. Introduction 86 IL NGOs Ui International Dispute Setdement 88 LTI. NGOs at die International Court of Justice 91 IV. NGO Participation Ui Economic and Investment Disputes 94 A. The LegaUty of NGO Participation as Amicus Curiae 95 1. NGOs in the WTO Dispute Setdement System 95 2. NGOs Ui Uitemational investor-state arbitration 98 B. The Rationale and Appropriateness of NGO Participation 102 1. NGOs as representatives of the "pubUc interest" in international economic and investment proceedings 103 2. UtUity of the brief in assisting the tribunal 106 C. The UtUity and Effectiveness of NGO Participation in International Economic and Investment Disputes: A Matter of Principle? 109 V. Conclusion i 112 I. INTRODUCTION Although international law is a legal system that is principaUy and essentiaUy engaged with the relation of states with other states, the involvement of non-state actors as participants either formaUy or UiformaUy in" international law has increased substantiaUy over the past years. Whether or not this participation needs to be equated with or, on the contrary is a consequence of the international legal subjectivity of non-state actors, is subject to debate in international legal scholarship.1 However, despite the theoretical discussions on the status of non-state actors Ui international law, the informal participation of non-state actors Ui Uitemational law and Uitemational relations is a reaUty that cannot be ignored. This Article wUl focus on the role played by non-governmental organizations (NGOs) Ui legal dispute setdement mechanisms in Uitemational economic and investment law. Recent decades have seen a significant Ulerease Ui the number of legal dispute setdement mechanisms charged with settling disputes based on international law. An often overlooked aspect of this evolution is diat die proUferation of dispute settlement mechanisms has equaUy witnessed die increased involvement of non-state actors as non-disputing parties Ui dispute setdement procedures. NGOs especiaUy have benefited from the proUferation of legal dispute setdement mechanisms to gain access to these forums, often as "friends of die court" (amici curiae). …