Browsing by Author "Wik, Cecilia Alexandra Isabella"

International investment arbitration is a preferred method for resolving investor-state disputes relating to alleged breaches of investment protection, forming part of substantive protection for cross-border investments within the vast network of international investment agreements. Since the birth of international investment arbitration in the 1960s, this institution has gone through notable developments, of which the presence of EU law and the European Commission as an intervening third party are some of the most recent changes. The role of the European Commission as a third party within the international arbitration regime has not, in this specific sense, been subject to academic research. It is therefore of interest and importance to research the role of the European Commission as a modern third party intervener in international investment arbitration. This thesis examines the case law of investment arbitration tribunals, most prominently the International Centre for Dispute Settlement of Investment Disputes (ICSID), in which third party interventions have taken place. Amicus curiae or third party intervention is a procedural right for interested third parties to intervene within investment arbitration, expressing their opinions relating to the dispute. The amicus curiae institution helps the arbitral tribunal in its most inherent task, which is to find the right decision in the dispute at hand, by enlightening the tribunal with information that would in the absence of such third party submissions be left outside its knowledge. As the international investment arbitration has gained more presence within the international judicial landscape it has also been put under the scrutiny of the public society. Through this public exposure the investment arbitration regime has been proven to lack important features of legitimacy and transparency and many initiatives have recently been taken in order to remedy these flaws. The investment arbitration regime has come to a modern era and simultaneously the amicus curiae institution has developed significantly. Through the codification of desires of various stakeholders and the practice of investment arbitration tribunals, there are today sufficient rules in order to establish the prerequisites for the acceptance of amicus curiae. Today, amicus curiae intervention is supported with the arguments that it enhances the transparency and legitimacy of international investment arbitration. The European Commission has been actively participating as a third party intervener in investment arbitration since the adoption of the Lisbon Treaty in 2009, when investment law was incorporated into the exclusive competence of the European Commission. This thesis examines the situations where the European Commission has intervened, and comes to the finding that the role of the European Commission is incompatible with the modern amicus curiae institution. Notwithstanding these findings, I argue in this thesis that the role and the ample rights granted to the European Commission can be legitimized with support from the original meaning of amicus curiae, as its participation can also contribute to enhanced legitimacy of the international investment arbitration regime.