Report and recommendations on third-party participation in investment arbitration

Third-party participation (TPP) is an increasingly common feature in investor-state dispute settlement (ISDS). For the purposes of this report, authored by the IBA Investment Arbitration Subcommittee of the IBA Arbitration Committee, TPP refers both to participation by a party that, while not a party to the underlying arbitration, seeks to participate in the arbitration as an amicus curiae, and to participation by a non-disputing treaty party (NDTP).

The report puts forward recommendations that balance the interests of parties, counsel, third-party participants and tribunals, to promote clarity and consistency in managing TPP in ISDS.

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• Section I assesses the number of TPP applications and the identity and number of applications in ISDS proceedings, further outlining the total number granted and denied.
• Section II sets forth the legal framework relating to the participation of amicus curiae and NDTPs.
• Section III examines procedural and substantive requirements governing TPP applications, identifying divergences in approach that could benefit from harmonisation or clarification, in respect of which the report sets forth its Recommendations.
• Section IV identifies issues arising from the treatment given to TPP submissions by tribunals and ad hoc committees in their decisions.
• Section V summarises the recommendations.

Annexes:

• Annex 1 - Third-party participation applications
• Annex 2 - Rules
• Annex 3 – Treaty provisions
• Annex 4 – Tribunal provisions
• Annex 5 – Amicus curiae: definition and acceptance by jurisdiction