International Commercial Arbitration Seminar

SIMULATION Week 7: Participation of Amicus Curiae and Confidentiality

Background:
1. Claimant “Investor” has initiated an arbitration against Respondent “State” pursuant to
the Agreement between the Government of the United Kingdom and Northern Ireland
and the Government of the Republic of Argentina for the Promotion and Protection of
Investments (the “Treaty”) (which is available online).
2. Pursuant to Article 8 of the Treaty, titled “Settlement of Disputes Between an Investor
and the Host State,” the Parties have agreed to arbitrate the dispute under the 2010
UNCITRAL Arbitration Rules.
3. Investor claims in the arbitration that State has breached its obligations under Article 2(2)
regarding the provision of fair and equitable treatment and Article 5 regarding
expropriation.
4. The Parties have filed their written submissions. The hearing on jurisdiction, merits and
quantum is scheduled to take place between July 5 to 12, 2023.
5. The Investor’s position, as set out in the written pleadings is as follows: the Investor
invested a considerable sum of money to acquire exploration permits to explore mining
deposits located in the north-east region of State. After determining that the mining
deposit was commercial, Investor applied for the exploitation permit to develop the mine.
Under the State’s laws, the Investor needed the environmental permit to be granted by the
environmental authorities before the mining authorities would issue the exploitation
permit.
6. However, the environmental authorities refused to grant the environmental permit on the
ground that the Investor had not addressed all of the concerns expressed by indigenous
communities living in the surrounding areas in its Environmental Impact Assessment.
The Investor claims that this decision was pretextual. Rather, the government realized
the immense value of the mine based on the exploratory work undertaken by the Investor,
and no longer wanted to grant the exploitation permit on the agreed-upon terms that had
been negotiated with the Investor (tax rates and royalty rates).
7. On February 1, 2023, a non-governmental organization in State named State Sierra Club
filed an application with the Tribunal seeking to participate as amicus curiae in the
proceeding. State Sierra Club is a local NGO that litigates environmental cases in State’s
domestic courts on behalf of indigenous communities who are affected by large-scale
projects (including mining projects). State Sierra Club sought to make written
submissions to the Tribunal. The written submissions would be made up of (a) a detailed
description of the local laws in State regarding protection of the environment, including
 the process for administrative review of an application for an environmental permit; and
(b) sworn affidavits of members of various indigenous communities which describe how
their communities, health and livelihoods would be impacted by the mining project
should it continue to the exploitation phase.
8. Investor opposes the participation of State Sierra Club as amicus curiae while State
welcomes such participation. One student should represent the Investor and one student
should represent State regarding whether or not to allow such participation, and whether
State Sierra Club should present written submissions on both issues. The Parties are
invited to comment on additional facts that would influence the outcome of this decision,
including any they may stipulate to in agreement or any they wish to present but is not
agreed.
9. In this same arbitration, the Parties held a case management conference with the Tribunal
at the start of the proceedings. The Tribunal issued Procedural Order No. 1. Article 8 of
the Procedural Order No. 1 contained a confidentiality provision that stated, “The written
submissions, witness statements and expert reports shall be treated as confidential in this
arbitration, and shall not be shared publicly or with third parties.”
10. Investor submitted the witness statement of Mr Smith. Mr Smith was an employee of Mr
Smith’s company and played a significant role in drafting the Environmental Impact
Assessment that had been submitted to the environmental authorities as part of the
application for the environmental permit. Mr Smith had met with representatives of the
indigenous communities, and, in his witness statement, he recounts how Investor
addressed these specific concerns in the Environmental Impact Assessment.
11. State recently published all of the written submissions, including the witness statements
and the expert reports, online. State claims that it was obligated to do so because new
provisions in its domestic law requires State to publish all submissions in investor-State
proceedings online for the public interest and to further the goal of transparency.
12. Investor has reported to the Tribunal that Mr Smith has now suffered threats to his
personal safety and the safety of his family from members of various indigenous
communities who consider that he has betrayed the local people. As a result, he has
informed Investor that he will no longer participate in the arbitration proceeding, and will
not testify at the upcoming hearing.
13. The Tribunal has to determine whether there has been a breach of the confidentiality
provision in PO1, and, if so, what consequences follow regarding whether Mr. Smith’s
witness statement should be part of the arbitral record. One student should represent
Investor and the other the State on this issue.