After consulting both parties, the Tribunal may allow a person or entity that is not a party to the dispute (in this Rule called the “non-disputing party”) to file a written submission with the Tribunal regarding a matter within the scope of the dispute. In determining whether to allow such a filing, the Tribunal shall consider, among other things, the extent to which:
(a) the non-disputing party submission would assist the Tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties;
(b) the non-disputing party submission would address a matter within the scope of the dispute;
(c) the non-disputing party has a significant interest in the proceeding.
The Tribunal shall ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party, and that both parties are given an opportunity to present their observations on the non-disputing party submission. (Emphasis added.)
The role of an amicus curiae is to provide assistance to a tribunal that it would not otherwise have from the disputing parties before it. A third and non-disputing party offers its help to the tribunal about a specific matter that is in dispute before the tribunal (from a particular perspective, with particular knowledge or with a particular insight that is different from that of the disputing parties) and the tribunal “may allow” a written submission regarding that specific matter [...] The tribunal has a margin of appreciation to determine whether a particular applicant is able to assist it or not, according to the terms of Art. 37 of the Rules.34
The Tribunal shares the Claimants’ view that the Applicant “has made no attempt at demonstrating that it meets any of the three cumulative conditions that the Tribunal must consider according to Rule 37.” The Claimants are right. In abstaining from addressing those obligatory factors, the European Commission has deprived both the disputing parties and the Tribunal of any possibility to discuss them in full knowledge. This is a fatal failure on the part of the Applicant that cannot be remedied by the Parties or the Tribunal guessing what the Applicant might or might not have set out, had it cared to do so.35
The Tribunal had required, as a condition of submission, that the EC provide an undertaking to reimburse the “additional costs of legal representation reasonably incurred by the parties in responding to that submission,” which the EC declined. This denied Spain the benefit of the EC’s intervention, which would have provided the Tribunal with authoritative clarification and confirmation of Spain’s obligations as a member State of the European Union in regard to the matters at issue in the case.46
In order to avoid further open conflict between investment arbitration and Union law, the Commission would appreciate the opportunity to set out in detail its reasoning before the [ad hoc] Committee, so as to enable your [ad hoc] Committee to assess the Award contested before it in the light of all relevant legal arguments.49
Acceptance of a submission shall confer to the petitioner neither the status of a party to the arbitration proceeding nor the right to access the file of the case or to attend hearings. The need to safeguard the integrity of the arbitral process requires in fact that no procedural rights or privileges of any kind be granted to the non-disputing parties.50
a. Allows the Commission to file a written submission as a non-disputing party, in accordance with Arbitration Rule 37(2), on whether the Tribunal seriously departed from a fundamental rule of procedure by requiring a commitment from the Commission to pay costs and refusing the Commission’s amicus curiae submission;
b. Decides that the Commission shall file its written submission on Monday, November 12, 2018; the submission shall be limited to 30 pages;
c. Rejects the Commission’s request to have access to the documents filed in the case and rejects its request to attend the hearing;
d. Rejects the Eiser Parties’ request to condition the filing of the Commission’s written submission to the provision of copies of all correspondence or a written undertaking;
e. Authorizes both disputing parties to present their views to the Commission’s written submission no later than Wednesday, December 12, 2018; and
f. Decides that this Procedural Order shall be communicated to the Commission for its exclusive use in this annulment proceeding.
Already registered ?