(a) Permission to make a written submission as joint amici curiae in the present arbitration;
(b) Access to the key arbitration documents; and
(c) Permission to attend the oral hearings when they take place, and to reply to any specific questions of the Tribunals on the written submissions.
“Four indigenous communities - the Chikukwa, Ngorima, Chinyai and Nyaruwa peoples - are living in areas in the region of Chimanimani, in South-Eastern Zimbabwe, on which the Claimant’s properties are located. In the present Petition, and in accordance with their traditions and customs, Chief Chadworth Ringsai Chikukwa, Chief Phineas Zamani Ngorima, Chief Simon Masodzi Chinyai, and Chief Naison Ndarera Nyaruwa, act with authority as representatives of these four indigenous communities respectively. This authority is evidenced in affidavits available from the Petitioners on the request of the tribunal. The membership of these indigenous groups is determined in accordance with the traditions and customs specific to each.” (footnote omitted)
“the determination of rights and access to land inhabited by indigenous communities, which may impede their enjoyment of their internationally recognized rights to land and to consultation in relation to their ancestral lands; and
the prejudicing of the particular rights of indigenous peoples under international law to be able to access judicial remedies for human rights violations, because the indigenous communities affected in this arbitration, as non-disputing parties, are not able to participate in or contest the decisions of this Tribunal as of right.”
“issues that have been identified as “the Top Ten Business and Human Rights issues of 2011 and again for 2012 by the Institute for Human Rights and Business: namely, to address the negative impacts of land use and acquisition on communities, to emphasize community consultations within human rights due diligence, and to strengthen legal accountability and redress for alleged human rights abuses by corporations.”
“Article 42(1) of the ICSID Convention provides that the ‘Tribunal shall decide a dispute in accordance with such rules of law as may be agreed upon by the parties’, and that ‘in the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws), and such rules of international law as may be applicable.’ Under the BITs entered into by the Republic of Zimbabwe with the Federal Republic of Germany and with the Swiss Federation respectively, the tribunal is mandated to reach its decisions on the basis of the BITs themselves, any treaties in force between the Contracting Parties, such rules of general international law as may be applicable, and the domestic law of the Contracting Party in the territory of which the investment in question is situated.”
“3.1 The Applicants are not independent of the Respondent because of their association with Mr Sacco and the Nyahode Union Learning Centre, and in regard to the Chiefs, because they are State organs appointed and dismissed at the State’s will. Alternatively, they do not have the appearance of being independent.
3.2 The Applicants do not propose to make submissions on legal or factual issues that relate to the proceedings.
3.3 The Applicants’ proposed legal submissions on the law of indigenous peoples does not concern the applicable law.
3.4 If the applicable law does include the law of indigenous peoples, the Applicants have not proven that the Tribes are ‘indigenous’ as that term is understood in public international law.
3.5 The Applicants will not bring a perspective, particular knowledge or insight that is different from that of the Respondent or relevant because they are not independent, and in regard to the ECCHR, it has no expertise in regard to Zimbabwe.
3.6 The Applicants have no significant interest in these proceedings because they lack independence, their proposed legal submissions are on matters that are outside of the applicable law and their ‘mission’ concerns corporate human right [sic] responsibilities that are not in issue in these proceedings.
3.7 Investment treaty tribunals should not adjudicate as to who are indigenous peoples, what are their rights, and what obligations they are owed (if any). States should be the first-line decision makers on these issues.” (paragraph references omitted)
“Mr Sacco and Nyahode Union Learning Centre have been vehemently opposed to the Claimants owning and operating the Border Estate. They have been frustrated by the Claimants’ refusal to run the Border Estate as a ‘Joint Forest Management’ project. Mr Sacco and the Nyahode Union Learning Centre proposed that they and the Tribes participate in this project, a situation from which Mr Sacco would personally benefit through sourcing timber for his own sawmill.
‘Joint Forest Management’ is a byword for handing over the Border Estate without compensation. It is a crude attempt to retrospectively justify the Land Reform Programme as being a policy to advance the ‘indigenous peoples’. Nothing could be further from the truth. If the LRP had been a policy to advance the ‘indigenous peoples’ it would not have received the condemnation that it has from the Respondent’s own courts, human rights groups and international tribunals in Africa. From 2000 onward, the real purposes of the Land Reform and Resettlement Programme, and indeed the policy, became to expropriate all of the large scale commercial farms that were directly or indirectly owned by white people, and to enrich senior members of the government, ZANU-PF and military and civil servants. These matters have been documented extensively in the Claimants’ Memorial.
Mr Sacco has stated that he intends to ‘internationalise’ his dispute with the Claimants. He is now attempting to do so in these proceedings through the ECCHR.” (citations omitted)
“will the non-disputing party’s submission be applicable to ‘factual or legal issues related to the proceeding’ (if not, they cannot possibly help the Tribunal in its determination);
will the non-disputing party’s submissions bring a ‘perspective, particular knowledge or insight that is different from that of the disputing parties’ (it must also be relevant, otherwise it will not be of assistance); and
if the first and second elements have been satisfied, will the submission assist the Tribunal in determining the factual or legal issue?”
“(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.”
“The Suitability of Specific Nonparties to Act as Amici Curiae. The purpose of amicus submissions is to help the Tribunal arrive at a correct decision by providing it with arguments, and expertise and perspectives that the parties may not have provided. The Tribunal will therefore only accept amicus submissions from persons who establish to the Tribunal’s satisfaction that they have the expertise, experience, and independence to be of assistance in this case. ...”. [At para. 23]
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