estimated there are approximately 3,000–continue to swell in number while becoming more comprehensive and grander of scale, with recent agreements encompassing an ever wider range of parties and issue coverage
As a result of this expansion, the pressure points created where the investment regime comes into conflict with environmental regulation have also multiplied. These encounters, and the responses to them generated by the Investor State Dispute Settlement (ISDS) process, have led to public concern, resistance, and, with little recourse for locally affected actors to weigh in on these decision-making processes, frustration.
The foremost forum for NGOs in this activity is ISDS, and their tool the amicus curiae brief. In ISDS, the first amicus curiae applications arose under NAFTA. These first requests were made in 2000 by an international sustainable development NGO to the tribunal in Methanex v United States. Briefly, third party involvement was not contemplated, at the time, either in NAFTA or under the rules under which the dispute was proceeding (UNCITRAL), so the Methanex tribunal’s eventual decision to accept the submissions was path-breaking. Several subsequent NAFTA arbitrations saw non-disputing parties apply to make amicus curiae submissions. In UPS v Canada, several months after the initial Methanex ruling regarding the admission in principle of third party submissions, the Canadian Union of Postal Workers and the Council of Canadians applied both to be added as parties to the proceedings and, failing that, to be permitted to make submissions. Both requests were denied.
Methanex Corporation Vs. United States of America
On 25 August 2000, a petition was submitted to the Tribunal by the International Institute for Sustainable Development requesting permission to submit an amicus curiae brief to the Tribunal (the “Institute Petition”). On 6′” September 2000, a joint Petition was submitted to the Tribunal by (i) Communities for a Better Environment and (ii) the Eanh Island Institute for permission to appear as amici curiae (the “Communities/Eanh Island Petition.
The Institute Petition contained requests for permission to file an amicus brief (preferably after reading the p
