Relevance of amicus curiae in international commercial arbitration matters

Amicus curiae is a person who possesses strong interest or views on the subject matter of an action, but not a party to the action, who may request the court or tribunal for permission to file a brief, ostensibly on behalf of a party in order to suggest a rationale consistent with its own views.

It has its roots in the Roman law and means a learned, respected, independent appointee of the Court whose role is to advise and assist the Court in reaching a just decision. Gradually, it has developed into a counter balancing mean in respect of adversarial nature of proceedings. At present, its primary objective in legal disputes relating to investments is to represent a trade association or a public advocacy group to influence the outcome of a decision.

Presently, its utility and convenience has become more relevant in the investment arbitration. Thus in order to regulate non-party interventions, the concept was introduced in arbitration conventions.1 Now for investor state disputes, the doors for intervening parties have been opened. The purpose is more transparency in litigation related to public interest. One can review the structure of amicus curiae under International Convention on the Settlement of Investment Disputes [ICSID], where it looks to be a blend of original Roman concept and the modern common law understanding, the related provisions of ICSID Convention read:

"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; [.....] (c) the non-disputing party has a significant interest in the proceeding".2

As regards the use of amicus curiae, a less lively debate exists in the international commercial arbitration. And the ongoing attitudes raise a question whether or not the institution of amicus curiae is suitable to international commercial arbitration.

Contrary to the above, the arbitration practices show and speak quite differently. Recently, in rules relating to commercial arbitration intervention of non-parties in proceedings has been explicitly included. For instance, the Code of the Court of Arbitration of Sport provides provisions on joinder and intervention, and expressly refers to the amicus curiae.3 Similarly, the Swiss Rules of International Arbitration provide that "one or more [third] persons may request to participate in arbitral proceedings already pending under the rules"4, by changing the terminology of its text from "a third party" to "persons". These rules discretely open the door to interventions of non-parties too.5 The arbitral tribunal's power to accept amicus curiae can be inferred from the general provision included in the recently revised rules granting the arbitral tribunals significant powers when it comes to the management of the proceedings.6

The raised moot point is whether or not a specific provision on an amicus curiae be generally incorporated in arbitration rules [other than those] explicitly designed for investment arbitration disputes.

Investment arbitration determines state liability and public policies,7 and in this background it was deemed necessary that third party intervention be allowed to meet the ends of Justice and to allow transparency while guaranteeing the political legitimacy of the process. It may thus be noted that arbitration rules such as ICC, LCIA and UNCITRAL are actually intended for a larger group of users and for a broader spectrum of disputes. Generally the commercial arbitration rules contain enough procedural provisions granting arbitral tribunal broad powers to manage procedural steps necessary for the proceedings.8 Suffice it to say that under the rules a tribunal has the "duty to adopt procedures suitable to the circumstances of the arbitration".9 An arbitral tribunal may adopt such procedural measures as it considers appropriate provided that they are not contrary to any agreement of the parties.10 From what has been stated above, it emerges that the absence of rules governing amici curiae does not appear as a disadvantage but rather an advantage as it contributes to maintaining the flexibility of the procedure and allows the arbitral tribunal to assess the suitability of such interventions on a case by case basis. Thus it is useful to underline that the rules traditionally are considered as fitting primarily for international commercial arbitration, in addition to the provisions granting broad procedural powers to the arbitral tribunal, the governing rules already contain provisions which cover the emerging problem.

There is no doubt that there exists an ambiguity on the notion of an amicus curiae. However, with regard to application of the concept of amicus curiae as an independent appointee, one should keep in mind that ICC, LCIA and UNCITRAL rules include such provisions and specifically regulate these power to appoint one or more independent experts to gain expert opinion on issues and tasks while providing a useful factual and legal information by enhancing the tribunal's knowledge. There can be another point of view, that is, should amicus curiae's focus to influence the outcome of a decision. But it may be noted that allowing non-party interventions in such terms will erode the consensual nature of the arbitration proceedings. Accordingly, it is desirable that the amicus curiae be allowed only where needed and required.

It may also be noted that for the quest of justice in legal systems which follow arbitration as an adversarial approach, the non-party intervention may well be useful and can be characterized for being restricted to the resolution of dispute between the parties to the dispute and confined to the issues that have been raised. However, thinking in these terms goes beyond what is expected from arbitration rules. Such rules should provide a neutral framework for arbitration users from different legal traditions. It may thus be stated that the relevance of amicus curiae in international arbitration differs depending on the actual circumstances of the case. Irrespective of a specific reference to an amicus curiae, arbitral tribunals have already enough power to evaluate whether the intervention of amicus curiae is justified taking into account the specific needs of each case.

(The writer is an Advocate and is currently working  with Azimuddin -Din Law Associates ).

1. See for instance Article 37 (2) of the ICSID 2006 Arbitration Rules and Article 1128 and 1129 of the North American Free Trade Association [NAFTA].

2. Article 37 (2) of ICSID Convention

3. See Article R 41.4 [Revised 2010].

4. See revised Article 4 which came into force on 1.6.2012.

5. By changing the terminology of the text from, "a third party" to "persons"

6. However, other rules such as the 2012 Arbitration Rules of the international Chamber of Commerce, the London Court of International Arbitration Rules [LCIA], the UNCITRAL Rules (2010 edition) do not explicitly provide for amicus curiae but do not exclude them either.

7. Arbitration Rules provides procedure for such determination.

8. These powers exist despite the absence of specific provisions relating to amicus curiae.

9. See Rule 14.4 (ii) of the LCIA Rules.

10. See Article 22 of the 2012 revised rule.

                                      

Admissibility of international treaties under domestic law

The focus of this paper is to highlight the key issues arising form relationship between treaties and domestic law. The literature is extensive on this topic and some of that literature has been discussed in this paper. I will begin by considering the relationship between treaties and domestic law.

A number of theories have been advanced to explain the relationship between international and domestic law. The theory of dualism, for example, contends that international law cannot be 'operated directly' in the domestic sphere, needing to be 'transformed' into domestic law by the legal acts of states. On the other hand, the theory of monism views that 'all law as part of the same universal normative order'. As such, international law does not need to be 'transformed' to apply in the domestic legal order.

Here, I may add that treaties are governed by intentional law and not by domestic law. The Vienna Convention on the Law of Treaties ('Vienna Convention') has categorically made it clear. The convention defines the term 'treaty' for the purposes of the Convention to mean a written international agreement between states governed by international law. It may be noted that international organisations can also conclude treaties.

Accordingly, an international court or a tribunal called on to interpret a treaty will apply the relevant principles of international law not the domestic law of the states which are parties to the treaty. It is important while finalizing a treaty that States must ensure that their domestic law permits them to meet their treaty obligations.

In many cases, states may implement parts of treaties in domestic law to ensure they can meet their treaty obligations. While it is a matter for states to determine how to go about this implementation, a failure to implement appropriately may have serious consequences for a state under international law. For example, such a failure could lead to a dispute with another state, resulting in proceedings before an international court or tribunal. Proceedings of this type can impose significant financial and political costs.

A failure to get it right domestically is no defense internationally. In other words, it can be said that a state 'cannot plead provisions of its own law or deficiencies in that law' in answer to a claim since it is in breach of a treaty obligation. In this regard, attention is drawn to Article 27 of the Vienna Convention. In part, the convention provides that: "...A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty..."

Let us now examine how domestic law accepts the rules of international law. The relationship will differ according to the character of a domestic legal system being considered. Generally, the differences will be due to different patterns of the constitutional framework in which a legal system functions.

By way of example, in a parliamentary system based on the United Kingdom model, treaties can only become part of domestic law if an enabling act of the parliament has been passed. Returning to the international legal theories, I mentioned earlier, this approach reflects the theory of dualism in its requirement that a treaty be transformed into domestic law through an act of parliament.

The basis of this approach is to be found in the doctrine of separation of powers. The executive is empowered to conclude treaties on the international plane. If treaties could become part of domestic law without an act of parliament, the executive, in effect, would be able to bring about a substantial change to the domestic law without following the checks of the legislative arm of government.

Compared to the picture in parliamentary systems of the UK type, the constitutional framework in the United States allows for treaties to become part of domestic law without being transformed through legislation. The US constitution provides for acceptance of treaties to which the US is a party and allows them to become the law of the land. This provision was intended 'to assure the supremacy of treaties' over the laws of the US states.

The position under the US law can be considered also in the context of the doctrine of separation of powers. Unlike parliamentary systems, where the approval of parliament is not required for the executive act of becoming party to a treaty, the US constitution requires that the senate gives its 'Advice and Consent' to the president making a treaty. Accordingly, a treaty will not become the law of the land without the approval of the senate. As such, there is a legislative check to the power of the executive to conclude treaties.

Due to the difference in the constitutional patterns which I have outlined, treaties in the US context are often referred to as 'self-executing'. It may be noted that not all treaties will be self-executing. In some circumstances, legislation may be required. For example, a treaty 'cannot itself enact criminal law'. If a treaty required parties to criminalize certain acts, the US Congress would have to enact an appropriate law.

PAKISTAN Let me now turn to the relationship between treaties and domestic law in Pakistani context. Pakistan has a parliamentary system based on the UK model, including the elements of that model relating to the making and implementation of treaties. Consequently, a treaty does not have a direct effect in Pakistani law unless and until it is incorporated into that law by statute.( See Shella Zia's case)

It is well-established that the provisions of an international treaty to which Pakistani is a party do not form part of Pakistani law unless those provisions have been validly incorporated into Pakistan's municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the executive in the exercise of its prerogative power, whereas the making and alteration of the law fall within the province of parliament, not the executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.

As a general policy, the necessary legislation is put in place prior to the entry into force of a treaty in Pakistan. This ensures that Pakistan is able to meet its obligations under the treaty from the moment it becomes a party. Ratification of a treaty without the required legislation would risk Pakistan 'being left in breach of the treaty if the Parliament subsequently failed or refused, for whatever reason, to pass the legislation'. Returning to the point I made earlier, the lack of domestic legislation in such a case would be no defense to a claim under international law that Pakistan had breached its treaty obligations.

Under international law, Pakistan has a 'discretion' in how it implements its treaty obligations. International law does not dictate that a particular approach be taken to implementing domestic legislation. That said, the bottom line remains that states must ensure that their domestic law permits them to meet their treaty obligations.

As Pakistan has a federal system of government, with a division of powers between the provinces and federation, the legislative approach to implementing treaties may well involve, at least in part, state legislation.

As already said, Pakistan follows the system practiced in the UK, that is why a number of treaties have been made part of domestic law. One method is to give the force of domestic law to the actual text of the treaty or the operative parts of the treaty. A prominent example of this is the Diplomatic Privileges and Immunities Act. The act gives the force of law to many of the articles of the Vienna Convention on Diplomatic Relations. This method has the advantage that there is no doubt that the legislation actually implements the treaty obligations. However, it essentially leaves it to the courts to decide what a particular provision of the treaty means - for example, whether the burning of a flag outside the grounds of an embassy amounts to an 'impairment of the dignity of the mission' within the meaning of Article 22 of the Convention thus rendering it unlawful.

Another method of implementing treaties by statute is to include a fairly short provision along the lines that the statute is subject to domestic obligations under international law, including those under treaties to which a country is a party. A similar approach is to say that a particular organisation or person will exercise powers under a statute consistent with domestic law.

This method was highlighted by a decision of the Australian High Court in the Blue Sky case. This case involved a bilateral obligation between Australia and New Zealand under the Closer Economic Relations Services Protocol ('the CER Services Protocol'). Under that protocol, Australia is required to give market access to New Zealand's services on terms no less favorable to those given to Australians and vice versa. The Broadcasting Services Act provided for the setting up of Australian content standards by the Australian Broadcasting Authority ('the ABA'). Section 160(d) of the act required that the ABA to do so in a manner consistent with Australia's obligations under any convention to which Australia was a party or any agreement between Australia and a foreign country. The high court found that the then existing Australian content standard for films was inconsistent with the obligations under the CER Services Protocol and was unlawfully made. The high court referred to the 'indeterminate language' of many of Australia's treaty obligations, which was 'compounded by Australia being a party to about 900 treaties'.

In summary, this short form manner of ensuring that an act is consistent, or administered consistently, with Australia's international obligations has the potential to lead to uncertainty in the administration of the act. That said, there remains a place for stating that particular statutes or particular sections of statutes should be administered in accordance with Australia's international obligations. However, in order to avoid uncertainty, it may be best to identify particular international obligations which are relevant rather than making the legislation.

The preferred method of giving effect to treaties is to translate the relevant provisions of the treaty into traditional legislative language. In so doing, a statute might refer to particular terms in a treaty but use the language of domestic law to give effect to the majority of obligations. Example of this approach in recent years is Section 25 of the Pakistan's Customs Act 1969, implementing GATT Code of Customs Valuation.

This method introduces an element of certainty into the implementation of treaties which is perhaps lacking in simply giving the treaties the force of law or in stating that a statute is subject to obligations.

There is no doubt that entry into a treaty by Pakistan enables the federation to enact laws under the external affairs power to implement the provisions of a treaty. That said, entry into a treaty dealing with a particular subject matter does not mean that the Federation assumes complete legislative power over that whole subject area.

I would now like to address the indirect effect of treaties on domestic law, as opposed to their direct effect through legislative implementation. One area where treaties, as part of international law, can be said to have an indirect effect is as a source in the development of the common law. Brennan J, as he then was, used international law as a source for developing the common law in the Mabo case. He stated the principle in the following terms:

"...The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when the international law declares the existence of universal human rights..."

A second area in which treaties may have an indirect influence is in the interpretation of statutes. This arises from the presumption that parliament, in enacting legislation, intends to act consistently with local obligations under international law. It follows that, as a matter of statutory interpretation, domestic statutes will be construed where the language permits, so that the statute conforms to municipal law's obligations under international law. For example, an Australian high court held in 1917 that the Customs Act should be construed consistently with an international principle concerning the right of a foreign vessel to depart from a port.

However, it remains clear that international obligations under a treaty cannot be used to override the plain words of a statute, even if those plain words are inconsistent with a treaty.

I now turn to the area of administrative law to consider Teoh's case. Teoh was a Malaysian citizen, who was sentenced to prison in Western Australia for drug trafficking. He had a number of young Australian children, who could not be cared for by their Australian mother. Teoh was refused permanent residency because he did not fulfill the requirement of good character and an order was made under the Migration Act 1958 to deport him.

The Australian high court, held by a majority of 4 to 1 that in decisions under the Migration Act, the best of interests of children must be a primary consideration. A number of judges in the majority held that there was a legitimate expectation to this effect based on the Rights of the Child Convention, which had not been the subject of legislative implementation.

The concept of a 'legitimate expectation' had been recognized previously by the courts as an interest, which falls short of a legal right but which nevertheless provides a basis for implying the common law rules of procedural fairness in relation to an exercise of power.

The court recognized that the common law gave a person, with existing or prospective rights or interests, the right to be heard before the exercise of a statutory power prejudiced such rights or interests. In terms of general principle, the court in Teoh's case found that the entry into a treaty by Australia creates a 'legitimate expectation' that the government and its agencies will act in accordance with the terms of the treaty, even where those terms had not been incorporated into Australian law.

It held that where a decision-maker proposes to make a decision inconsistent with such a legitimate expectation, procedural fairness requires that the person affected by the decision be allowed to be heard on the point. The Australian court made it clear that such an expectation would not arise where there is an executive or statutory indication to the contrary.

Prior to Teoh's case, the courts recognized that an administrative decision-maker in exercising a discretion under a statute could have regarded to a relevant international agreement unless the statute prevented the decision-maker from doing so. However, an administrative decision-maker was not required to have regard to international obligations unless the statute directed the decision-maker to do so.

Considering that it represented a development, which was not consistent with the proper role of parliament in implementing treaties in Australian law, the Government acted in response to the outcome in Teoh's case by taking up the high court's statement that a legitimate expectation would not arise where there is either an executive or statutory indication to the contrary.

CONCLUSION I hope I have achieved my aim of giving you a practical overview of the key issues arising in the relationship between treaties and domestic law. This is a subject, which will only grow in importance as treaties are used to create international regimes and standards on an expanding range of matters, which, in turn, will need to be implemented by the Individual States.

(1) R. Balkin, International law and domestic law, 119, in S. Blay, R. Piotrowicz and M. Tsamenyi (eds), Public International Law: An Australian Perspective (1997).

-- (2) Ibid, 120.

-- (3) Ibid.

-- (4) Article 2(1).

-- (5) I. Brownlie, Principles of Public International Law (5th edn, 1998), 34.

-- (6) Ibid, 46.

-- (7) Balkin, 128.

-- (8) J. Crawford and W. R. Edeson, International law and Australian law, 85, in K. W. Ryan (ed.), International Law in Australia, (2nd edn, 1984).

-- (9) Article VI.

-- (10) L. Henkin, Foreign Affairs and the US Constitution (2nd edn, 1996), 199.

-- (11) Article II, section 2.

-- (12) Henkin, 203.

-- (13) Balkin, 131.

-- (14) W. Campbell, The implementation of treaties in Australia, 134, in B. Opeskin and D. Rothwell (eds), International Law and Australian Federalism (1997).

-- (15) See discussion on this point by Campbell at 148-151.

-- (16) Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490.

-- (17) Blue Sky, at 517-8 per McHugh, Gummow, Kirby and Hayne JJ.

-- (18) Zachariassen v Commonwealth (1917-18) 24 CLR 166, at 181 per Barton, Isaacs and Rich JJ.

-- (19) Mabo v Queensland [No 2] (1992) 175 CLR 1.

-- (20) Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286-287.

-- (21) M. Allars, International law and administrative discretion, 234, in B. Opeskin and D. Rothwell (eds), International Law and Australian Federalism.