In determining whether to accept a written submission, the Free Trade Commission recommends in paragraph 6 that a tribunal consider the extent to which:

(a) the non-disputing party submissions would assist the Tribunal in the determination of a factual or legal issue related to the arbitration 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 matters within the scope of the dispute;

(c) the non-disputing party has a significant interest in the arbitration; and

(d) there is a public interest in the subject-matter of the arbitration. 100

The tribunal must also ensure that the submission does not disrupt the proceedings or unduly burden or unfairly prejudice either disputing party. 101 If the tribunal grants leave to file a non-disputing party submission, it then sets a date by which the disputing parties may respond in writing to the submission. 102 Even if the tribunal grants leave to file a non-disputing party submission, it is not required to address the submission at any point during the arbitration. 103

These recommended procedures were adopted on 30 December 2003 by the Methanex tribunal. 104 The Methanex tribunal had previously decided it had the authority to allow amici curiae participation, on the reasoning that amicus submissions in that case would not affect the equal treatment of disputing parties or the opportunity for each party to fully present its case. 105 In March 2004, two amicus curiae briefs were submitted to the tribunal. 106 These were accepted by the tribunal.

Procedures for accepting amicus curiae briefs were also recently adopted by an ICSID tribunal in a non-NAFTA dispute. In Aguas Argentinas, SA, Suez, Sociedad General de Aguas de Barcelona, SA and Vivendi Universal, SA v Argentine Republic (‘Suez-Vivendi’), the tribunal explicitly drew on the NAFTA Free Trade Commission's recommended procedures. 107 The tribunal looked at whether the amicus submission would be in the public interest; 108 the suitability of specific non-parties to act as amici curiae, including whether they had expertise, experience, and independence

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from the disputing parties; 109 whether the acceptance of amicus briefs placed extra burden on the parties, tribunal, and proceedings; the degree to which the proposed amicus brief was likely to assist the tribunal in arriving at its decision; the content of the petition; and the disputing parties' responses to the petition. 110 Similar to the Free Trade Commission's recommendation, the Suez-Vivendi tribunal declared that the petition for leave to submit an amicus brief should include:

(a) the identity and background of the petitioner, the nature of its membership if it is an organization, and the nature of its relationships, if any, to the parties in the dispute;

(b) the nature of the petitioner's interest in the case;

(c) whether the petitioner has received financial or other material support from any of the parties or from any person connected with the parties in this case;

(d) the reasons why the tribunal should accept petitioner's amicus curiae brief. 111

In UPS , non-disputing party petitioners argued that amici curiae can offer broader perspectives on the impacts of a decision that might not be raised by either party. 112 The tribunal had not initially accepted amicus briefs from the Canadian Union of Postal Workers and the Council of Canadians, but it determined that Chapter 11 contemplates a role for non-disputing parties as long as it would not change the particular matter subject to arbitration or the disputing parties' rights. 113 The tribunal ruled that:

[T]he Tribunal should not receive submissions unless it is confident that they will provide a particular insight, an assessment which is to be made in the context of the assumption made by the Methanex Tribunal that the disputing parties will provide all the assistance and materials that the Tribunal needs to resolve the dispute. 114

These tribunals' acceptance of amicus briefs has allowed for greater participation in the NAFTA arbitration process. But participation in the process remains limited. Like decisions to open hearings to the public, tribunals still accept requests to make amicus submissions on a case-by-case basis.

Oral Submissions

NAFTA and the Free Trade Commission are silent on whether non-disputing parties may participate through oral submissions. One of the petitions in Methanex sought permission to make oral submissions. 115 The tribunal did not grant this

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request. 116 Thus far no tribunal has yet interpreted its authority to receive submissions other than written amicus briefs.

Submissions on Procedural Issues

NAFTA tribunals have accepted written submissions on procedural as well as substantive issues. In UPS , the Canadian Union of Postal Workers and the Council of Canadians petitioned the tribunal for third party participation. Among other requests, the petitioners asked for the right to make submissions concerning the place of arbitration, the jurisdiction of the tribunal, and the arbitrability of matters raised by UPS. 117 The tribunal determined that it had the authority under UNCITRAL Article 15(1) to receive these submissions. 118

(iv) Access to Awards

The text of NAFTA treats Canada and the USA differently than Mexico with respect to the public disclosure of awards. Annex 1137.4 of NAFTA provides that in any dispute involving the governments of Canada or the USA, either disputing party may make the award public. NAFTA is silent in this respect regarding Mexico, which demonstrated less interest in promoting transparency than did the other two countries during the negotiations. Thus, under the ICSID Arbitration Rules and under the ICSID Additional Facility Rules, although Canada and the USA may make an award public, ICSID may not publish the award without the consent of both disputing parties, but it shall promptly include excerpts of the legal rules applied by the tribunal in ICSID publications. 119 For disputes involving UNCITRAL rules, Canada and the USA may make an award public (by nature of NAFTA Annex 1137.4), but for Mexico, an award may only be made public with the consent of both disputing parties. 120 No arbitrations or domestic judicial cases have yet addressed the issue of disclosure of NAFTA arbitral awards.

(v) Conclusions

In many respects, NAFTA Parties and Chapter 11 tribunals have led the way in providing greater transparency and public participation in international investment arbitrations. Through standardized registration of claims, access to proceedings, ability to provide input to the tribunal, and access to awards, these parties and tribunals have promoted greater public involvement and awareness, in some respects on a case-by-case basis.

end p.750

(2) Transparency

(a) The Principles of Confidentiality and Privacy in International Commercial Arbitration

The principle of confidentiality in international commercial arbitrations has long been considered to be one of the main advantages of arbitration as recognized by the English Courts. 121 However, its existence has recently been questioned by various national courts, including the US, Australian, and Swedish courts. Whilst recognizing that some aspects of arbitration proceedings are private, such as the hearing, some courts have drawn a distinction between confidentiality and privacy, concluding that the privacy of hearings does not necessarily protect the remaining aspects of arbitration as confidential.

Unless the parties have expressly agreed, whether or not an arbitration is confidential depends upon the applicable arbitral rules and the procedural law of the seat of the arbitration. As outlined above, whilst most arbitral rules require hearings to be held in private and that the award is not to be published unless the parties provide their consent, few arbitral rules expressly provide that the entire arbitration is confidential.

(i) Confidentiality and Privacy in the English Courts

The principles of privacy and confidentiality have long been recognized and enforced by English courts in international commercial arbitration. Although the 1996 Arbitration Act does not expressly protect privacy and confidentiality, the exclusion of these principles was after due consideration by the Departmental Advisory Committee. The Committee recognized that:

Privacy and confidentiality have long been assumed as general principles in English commercial arbitration, subject to important exceptions. It is only recently that the English courts have been required to examine both the legal basis for such principles and the breadth of certain of these exceptions, without seriously questioning the existence of the general principles themselves… .