This procedural order deals with the question whether the Mosquera Submission may be admitted as an amicus curiae submission of a non-disputing party in the sense of Article 10.20.3 of the US-Colombia Trade Promotion Agreement (the "Treaty") and ICSID Arbitration Rule 37(2).
In any event, Claimants submit that Mr. Mosquera fails to meet the criteria for amicus curiae submissions under the Treaty and ICSID Arbitration Rule 37(2).
The Parties agree that Article 10.20.3 of the Treaty and ICSID Arbitration Rule 37(2) set out the applicable legal standard for the Tribunal to accept and consider an amicus curiae submission from a person or entity that is not a disputing party.
Article 10.20.3 of the Treaty reads in its relevant part:
Article 10.20: Conduct of the Arbitration
3. The tribunal shall have the authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party. Each submission shall identify the author and any person or entity that has provided, or will provide, any financial or other assistance in preparing the submission.
Rule 37 Visits and Inquiries; Submissions of Non-disputing Parties
(2) 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.
In exercising its discretion whether to admit the amicus curiae submission, the Tribunal will, as suggested by both Parties, consider the criteria explicitly mentioned in Article 10.20.3 of the Treaty and ICSID Arbitration Rule 37(2).
Article 10.20.3 of the Treaty requires disclosure of "any person or entity that has provided, or will provide, any financial or other assistance in preparing the submission." As both Parties pointed out in their comments on the Mosquera Submission, Mr. Mosquera has not complied with this Treaty requirement.
In view of this, it is not clear to the Tribunal whether Mr. Mosquera acted in his own name and/or on behalf of his client and whether he received any financial or other assistance in preparing the submission. Without disclosure of these circumstances, the Tribunal considers that the Mosquera Submission may not be admitted pursuant to Article 10.20.3 of the Treaty.
Turning to ICSID Arbitration Rule 37(2) lit. a, the Tribunal will now consider whether the admission of the Mosquera Submission would assist it 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 the disputing Parties.
Finally, the Tribunal will assess whether Mr. Mosquera has established that he has a significant interest in this arbitration as required by ICSID Arbitration Rule 37(2) lit. c.
To meet this requirement, the applicant needs to show that he has more than a "general" interest in the proceeding. For example, the applicant must demonstrate that the outcome of the arbitration may have a direct or indirect impact on the rights or principles the applicant represents and defends.
Thus, this time I am writing you with the purpose of providing relevant information and necessary evidence that shows that Mr. Ángel Samuel Seda has given false testimony in this lawsuit, not only generating serious damage to my human rights to dignity, honor, good name, and my professional work as a lawyer, but shows that the structural basis of the claim is built on false information that seeks to mislead the Arbitrators.
Yet the Tribunal considers that this possibility does not reflect a significant interest pursuant to ICSID Arbitration Rule 37(2) lit c and does not justify admitting him as amicus curiae. This is for the following reasons:
The Tribunal therefore concludes that Mr. Mosquera has not shown a significant interest in these proceedings. Mr. Mosquera's submission does not meet the conditions set out in Article 10.20.3 of the Treaty and ICSID Arbitration Rule 37(2). Consequently, neither the Mosquera Submission nor its accompanying evidence shall be admitted to the record.
I. Mr. Mosquera's submission of 15 October 2021 and its accompanying evidence attached are not admitted to the record.
II. Mr. Mosquera shall be informed of the Tribunal's decision and provided with a copy of this procedural order.
III. Sections 3 to 5 of Claimants' comments dated 1 November 2011 are stricken from the record.
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