Amici Curiae in NAFTA Cases

By Andrea K. Bjorklund (March 22, 2002)

Public attention to cases brought under NAFTA Chapter Eleven has grown commensurately with the increased numbers of those cases. While media coverage has increased, most of that attention stems from particular interest groups. Many of these groups are not satisfied with newspaper reports or government-supplied information available on the internet, but wish to participate more directly in the cases as amici curiae. These petitioners have brought to the fore the question of whether amici should be permitted to participate in NAFTA Chapter Eleven cases. Answering this question in the affirmative raises various corollary questions, including what rules or procedures should govern amicus participation and what effect, if any, amicus participation should have on confidentiality in arbitration.

Do Chapter Eleven tribunals have the authority to permit amicus participation?

Two NAFTA Chapter Eleven tribunals convened under the UNCITRAL rules have considered applications by NGOs for amicus status. In the UPS case, the NGOs requested leave to intervene as parties, and in the alternative requested amicus status. The UPS tribunal determined it did not have the authority to permit their intervention as full parties. United Parcel Service of America Inc. v. Government of Canada, Decision of the Tribunal on Petitions for Intervention and participation as Amici Curiae (17 October 2001) 35-43 [hereinafter “UPS Decision”]. This decision was probably correct, but is beyond the scope of this paper and will not be discussed here. In addition, the Sierra Club, the Council of Canadians, and Greenpeace sought to intervene in Canadian federal court proceedings instituted by Canada to set aside the award in the Chapter Eleven case of S.D. Myers, Inc. v. Government of Canada. Both the trial division and the federal court of appeal rejected the petitions. Attorney General of Canada v. S.D. Myers, Inc., 2001 F.C.T. 317 (11 April 2001); Attorney General of Canada v. S.D. Myers, Inc., 2002 F.C.A. 39 (28 January 2002).

While the NAFTA and the applicable arbitration rules are silent as to the participation of amici, each tribunal to have considered the issue determined that it had the discretion to accept written briefs by amici, but that amici had no right to participate. These decisions were both grounded in Article 15(1) of the UNCITRAL Arbitration Rules, which gives the tribunal the power to “conduct the arbitration in such manner as it considers appropriate, [] provided that the parties are treated with equality and that at any stage in the proceedings each party is given a full opportunity of presenting its case.” As the Methanex tribunal stated, “Article 15(1) is intended to provide the broadest procedural flexibility within fundamental safeguards, to be applied by the arbitration tribunal to fit the particular needs of the particular arbitration.”(Methanex Corp. v. United States of America, Decision of the Tribunal on Petitions from Third Persons to Intervene as “Amici Curiae” (15 January 2001) 27 [hereinafter “Methanex Decision”]). The Methanex tribunal found further support for finding such a power in Note 5 to the Iran-U.S. Claim’s Tribunal notes to Article 15(1). “The arbitral tribunal may, having satisfied itself that the statement of one of the two Governments – or, under special circumstances, any other person – who is not an arbitrating party in a particular case is likely to assist the arbitral tribunal in carrying out its task, permits such Government or person to assist the arbitral tribunal by presenting written and [or] oral statements.”

The UPS tribunal also found that the power conferred by Article 15(1) “is to be used not only to protect those rights of the parties, but also to investigate and determine the matter subject to arbitration in a just, efficient and expeditious manner.”

The WTO appellate body in the Shrimp/Turtle case, which first determined that it had the discretion to consider submissions by amici, also grounded that authority in the powers of the tribunal to conduct the proceedings before it,(The appellate body in Shrimp/Turtle cited several sources for such authority, including Articles 11 (“panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case”) and 12 (“Panel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process”). Appellate Body Report, United States — Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (12 October 1998) 103-07 [hereinafter “Shrimp/Turtle Appellate Body Rep.”]) although it referred additionally to Article 13.2, which permit panels “to seek information from any relevant source and [] consult experts to obtain their opinion on certain aspects of the matter.”(Shrimp/Turtle Appellate Body Rep. 103-04. The Shrimp/Turtle panel had rejected such an interpretation. Report of the Panel, Untied States, Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R (15 May 1998) 3.129 [hereinafter Shrimp/Turtle Panel Rep.”) Many members of the WTO have criticized this broad definition of “seek,” but subsequent panels and appellate bodies have followed the lead of the Shrimp/Turtle appellate body in substance. The British Steel panel grounded its power in Article 17.9 of the Dispute Settlement Understanding (“DSU”), which authorizes the panel to draw up working procedures. Appellate Body Report, United States — Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/AB/R (10 May 2000) 39-40 [hereinafter “British Steel Appellate Body Rep.”]. Incidentally, the Methanex tribunal considered those powers “significantly less broad” than the powers accorded under Article 15(1). Methanex Decision 33. Article 16.1 of the DSU makes clear that any ruling under that provision sets forth procedures for that case only; a majority of WTO members have yet to acquiesce in the panel and appellate body rulings permitting amicus submissions. Minutes of the General CouncilMeeting (22 November 2000), WT/GC/M/60.

Neither the Methanex tribunal nor the UPS tribunal grounded its authority in Article 1133, which permits a tribunal to appoint experts, with the consent of parties, if those experts might help the tribunal make its decision.

Permitting amicus submissions is consistent with the practice of other international tribunals. Several international tribunals, notably the European Court of Human Rights and the Interamerican Court of Human Rights frequently exercise their power to accept amicus briefs.(See Dinah Shelton, The Participation of Nongovernmental Organizations in International Judicial Proceedings, 88 Am. J. Int’l L. 611, 629-30, 632-37 (1994)) On the other hand, the International Court of Justice does not permit NGOs to submit amicus briefs in contentious cases, although non-party States may request intervention. The ICJ has accepted an amicus submission in an advisory proceeding, though it has not done so since 1950.(Steve Charnovitz, Two Centuries of Participation: NGOs and International Governance, 18 Mich. J. Int’l L. 183, 279 (1997)).

Both the Methanex and UPS tribunals were convened under the UNCITRAL rules. Their decisions do not directly answer the question whether ICSID Convention or ICSID Additional Facility tribunals would have like powers. The NAFTA theoretically permits arbitration under the ICSID Convention, but because neither Mexico nor Canada is a signatory that option is not currently possible. For the sake of thoroughness, however, I will consider whether either the Convention or the Additional Facility Arbitration Rules (which are very similar in certain respects) permit amicus participation.

Each of those regimes is also silent with respect to the submission of amicus briefs. However, Article 35 of the Additional Facility Rules provides that “[i]f any question of procedure arises which is not covered by these Rules or any rules agreed by the parties, the Tribunal shall decide the question.” Article 44 of the ICSID Convention is virtually identical. This provision is similar enough to Article 15(1) of the UNCITRAL Rules to support the same interpretation.

The applicable arbitration rules, as well as similar practice in most other international bodies, support the discretion of Chapter Eleven tribunals to accept and consider amicus briefs. Permitting submission of amicus briefs would be difficult to stop; during the Uruguay Round negotiations members discussed but could not agree on whether NGOs should be permitted to participate in dispute settlement, Minutes of General Council Meeting (22 November 2000), WT/GC/M/60, 38, yet despite this negative diplomatic history panels and appellate bodies have permitted such submissions. “Members were not faced with a situation where they had accidentally created a legal lacuna as a result of not having foreseen that this kind of problem might arise in the future.” Id. 50 (comment of Mexico). NAFTA tribunals are not even faced with such adverse diplomatic history. There are limits to that discretion, however.

Limits on the Exercise of Authority

The NAFTA tribunals and the WTO panel and appellate body decisions permitting the submission of amicus briefs were predicated on the assumption (whether explicit or implicit) that the decision was procedural only and did not affect the substantive rights of the parties. Much of the criticism by WTO members of the decisions to accept amicus briefs stemmed from their conviction that the decision was in fact a substantive one that affected the balance of powers in the WTO and was therefore not an appropriate decision for a tribunal to make. See, e.g., Minutes of General Council Meeting (22 November 2000), WT/GC/M/60, 7 (“practical effect [of permitting submission of amicus briefs] had been to grant individuals and institutions outside of the WTO a right that Members themselves did not possess”) (comment of Uruguay); 12 (“decision by appellate body in Asbestos case “went far beyond the Appellate Body’s mandate and powers”) (comment of Informal Group of Developing Countries); 52 (“the panels and the Appellate Body could not add to or diminish the rights and obligations provided in the covered agreements”) (comment of Mexico).

Mexico made a similar argument before both NAFTA tribunals when it asserted that permitting amicus submissions would result in favoring the court processes of Canada and the US over Mexico because Mexican courts do not have amicus submissions and that Chapter 11 was a delicately balanced compromise between Mexico’s civil law system and the common law legal systems of Canada and the United States.(Methanex Corp. v. United States of America, 1128 Submission of the Government of Mexico (11 October 2000) 11-14; UPS Decision 56-57)

Chapter Eleven is similar in many respects to the bilateral investment treaties concluded by the United States, Canada, and many other countries; these treaties may well have attempted to reconcile competing facets of civil and common law jurisprudence. A separate, though somewhat related argument, carries yet more weight. Because Mexican courts do not have an amicus-type practice, Mexican NGOs are likely less familiar with the procedures and strategies involved in filing such documents. This ties in to the frequently repeated argument made by developing countries in the WTO that permitting greater NGO participation effectively disadvantages the developing countries because the NGO sector in the developed world is better organized, more experienced, and better funded. See, e.g., Charnovitz, supra note 10, at 275 (“NGOs from developing countries may also be less well financed than their industrial country counterparts and therefore less able to participate effectively.”); cf. Philip M. Nichols, Participation of Nongovernmental Parties in the World Trade Organization: Extension of Standing In World Trade Organization Disputes to Nongovernment Parties, 17 U. Pa. J. Int’l Econ. L. 295, 318-19 (1996) (because NGOs are likely to spend time and money lobbying their own governments, only those NGOs whose resources were not exhausted at the national level would be able to engage in international policymaking; thus “expansion of standing [before WTO tribunals] might instead be a boon to a select group of well-monied interest groups.”); WTO Minutes of General Council Meeting (22 November 2000) , WT/GC/M/60, 38 ([T]he Appellate Body’s approach would also have the implication of putting the developing countries at an even greater disadvantage in view of the relative unpreparedness of their NGOs who had much less resources and wherewithal either to send briefs without being solicited or to respond to invitations for sending such briefs.”) (comment of India).

While so far the aspiring amici in NAFTA cases would presumably have supported the respondent governments, permitting formal participation would likely galvanize action from pro-investor groups as well, so that inequity will not always be the case. In the British Steel case at the WTO, two U.S. industry groups filed briefs separate from the U.S. Government submission. British Steel Appellate Body Rep. 36. Although the appellate body found that it had the authority to accept the briefs, in the end it did not consider it necessary to take the two briefs into account in rendering its decision. Id. at 42. In addition, the panel in Australian Salmon accepted briefs from two Australian fishermen. Panel Report on Australia — Measures Affecting Importation of Salmon, WT/DS18/R (12 June 1998), cited in Andrea Kupfer Schneider, Institutional Concerns of an Expanded Trade Regime: Where Should Global Social and Regulatory Policy Be Made?: Unfriendly Actions: The Amicus Brief Battle at the WTO, 7 Wid. L. Symp. J. 87, 97 (2001).

Furthermore, to the extent that having developed-world NGOs make arguments supporting developing countries gives rise to accusations of paternalism and unwarranted interference with developing world affairs, criticism would likely ensue.(See Charnovitz, supra note 10, at 275 (“because many NGOs are from industrial countries, they amplify certain views — for example, on human rights or the environment — that may not be reflective of the views of developing countries.”))

Another substantive concern is whether amici will attempt, or will be permitted by the court, to widen the dispute between the parties. Canadian courts considering proposed intervention repeatedly emphasize that the proposed intervention not be permitted to broaden the lis between the parties.(Clark v. Attorney General of Canada, 81 D. L. R. 3d 33, 38 (Ontario High Ct. 1977) (“Where the intervention would only serve to widen the lis between the parties or introduce a new cause of action, the intervention should not be allowed.”)) This concern underlay some of the WTO members’ comments on amici as well, although by far the majority of commentary centered on the balance of power between branches of the WTO government. Thus, limiting amici to issues on which they may be presumed to have specialized information, but only in the context of the merits of the case as presented by the parties, is essential. For example, the UPS tribunal refused to permit amici to participate in the jurisdictional phase of the proceedings as they could not be presumed to have any expertise on jurisdictional issues.

Permitting the filing of amicus briefs will add to the burdens of the parties, both in terms of attorney time and cost. The tight deadlines in NAFTA cases already test the limits of attorney time and resources, particularly for government parties who are obliged to obtain acceptance of arguments within different spheres of the government. In terms of pure cost, the arbitrators will need to be paid for the time they spend reading the briefs and the parties’ responses. While one could attempt to pass that cost on to the NGOs attempting to file briefs, the NAFTA does not give Chapter Eleven tribunals the authority to assess such costs, and the more likely result is that the parties will pay for that arbitrator time. NAFTA Article 1135 only gives tribunals the authority to award monetary damages and any applicable interest, or restitution of property, so long as Parties have the opportunity to pay monetary damages and applicable interest in lieu of restitution. The applicable arbitral rules deal with the question of costs themselves. The UNCITRAL Arbitration Rules provide that, in principle, “the costs of the arbitration shall be borne by the unsuccessful party,” although if the tribunal considers it reasonable, “the arbitral tribunal may apportion [the costs] between the parties, if it determines that such apportionment is reasonable . . . .” UNCITRAL Arb. R. 40(1). The ICSID Additional Facility Arbitration Rules and the ICSID Convention Arbitration Rules presume the costs will be divided in some manner between the parties, although they do not explicitly so state. See ICSID AF Arb. R. 59(1); ICSID Conv. Arb. R. 28.

Moreover, at least to date, the amici have tended to support one side. While that imbalance may diminish, tribunals will need to consider the inherent inequality injected into the proceedings should it permit several amici to submit briefs, all of which add to the arguments to which one side must respond.

Thus, any procedures developed to govern the acceptance of amicus briefs must attempt to mitigate those burdens and to ensure that the amicus submissions do not expand the dispute between the parties.

Formulating Procedures for Amicus Participation

Any procedures the NAFTA Parties would institutionalize for amicus participation must take into account the limitations described above. Presumably the NAFTA Parties could issue such procedures under the “interpretation” authority of Article 1131, although precisely which provision would be the subject of the “interpretation” is unclear. General reference to Section B of Chapter Eleven might suffice to capture the procedural rules scattered throughout the Section without identifying too precisely any particular provision that might not be suited to be “interpreted” under Article 1131.

Following the WTO model would vest the arbitral tribunals with discretion as to whether any amicus participation was permitted at all. However, regularized principles would guide the tribunal decision. In municipal jurisprudence and in international jurisprudence, determining who can participate usually hinges largely on assessing two factors: what interest does the aspiring amicus have in the proceedings and what likely expertise can that organization put forward that is not already adequately represented by the parties to the proceedings?. This piece assumes that amici will fill the traditional modern role of advocate for their own interests; historical roles in which amici address the court to inform it of laws or cases with which it is unfamiliar or advance arguments for an absent or unrepresented third party are unlikely to be at issue in the NAFTA cases. See, e.g., Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale L. J. 694 (1963).

The Parties could follow U.S. court practice, which requires that amici first attempt to get the consent of the parties to file their briefs; if such consent is given, the amici may file their briefs without seeking leave of the court.(U.S. Supreme Court Rule 37(3)(a); Fed. R. App. P. 29(a)) The normal practice, especially in cases before the U.S. Supreme Court, is that consent is given. The Supreme Court’s practice in the last 50 years has been to grant nearly all motions for leave to file when the parties have withheld consent; parties ordinarily consent to such motions in order “to avoid burdening the Court with the need to rule on the motion.” Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743, 762 (2000). This practice effectively removes the court’s discretion to accept or reject briefs, although practically speaking, a court may or may not give serious consideration to an amicus brief after it is filed. The Canadian rules do not allow parties to bypass seeking leave of the court to move to intervene.(Federal Court Rules (1998) 109(1))

For the NAFTA cases, the WTO model is likely the better one to follow. State Parties to the proceedings would otherwise be subject to political pressures to accept or reject particular petitions in every case in which proposed amici sought to file.

Assessment of the Amici’s Interest in the Case

The first question for a tribunal to consider are the bona fides of the aspiring amicus curiae. In many cases the proposed amicus will be a well known NGO. For example, in Methanex the proposed amici were the International Institute for Sustainable Development, Communities for a Better Environment, and the Earth Island Institute (the latter two petitioned jointly and were represented by the Earthjustice Legal Defense Fund). Traditional NGOs are not the only likely aspirants for amicus status; in two of the WTO cases industry groups attempted to submit amicus briefs. In some cases, though, the proposed amicus might be an individual. Any rule set forth should consider the spectrum of proposed amici and be useful to assess the interest of any of the potential categories of interveners.

U.S. federal court rules, both at the Supreme Court and the Courts of Appeals, require the motion to appear as amicus to state “the nature of the movant’s interest.”(U.S. Supreme Court Rule 37(3)(b); Fed. R. App. P. 29(b)(1)) While the Canadian court rules require only that the proposed intervener identify itself and any solicitor acting for it, courts have required that the applicant show that it has an interest in the outcome of the case, that its rights will be seriously affected by the litigation, and that it will bring to the court a point of view different from that of the parties. See, e.g., Abbott v. Canada, 3 F.C. 482 5 (2000); Attorney General of Canada v. S.D. Myers, Inc., 2001 F.C.T. 317 18 (11 April 2001); see also Attorney General of Canada v. S.D. Myers, Inc., 2002 F.C.A. 39 5 (28 January 2002) (jurisprudential interests alone insufficient to justify leave to intervene).

The Methanex tribunal also examined the credentials of the Petitioners (which it described as “impressive”). In the Asbestos case, the appellate body adopted procedures to govern the submission of appellate briefs which required proposed amici to include its address and other contact details; to “includ[e] a statement of the membership and legal status of the applicant, the general objectives pursued by the applicant, the nature of the activities of the applicant, and the sources of financing of the applicant”; and to “specify the nature of the interest the applicant has in this appeal.”(European Communities — Measures Affecting Asbestos and Asbestos-Containing Products, 8 November 2000 (Additional Procedure Under Rule 16(1) of the Working Procedures for Appellate Review) 3(a-c).)

This entry continues on Amicus Curiae in International Investment Arbitration.