AMICUS INTERVENTION IN INVESTOR-STATE DISPUTE SETTLEMENT SYSTEM: CHINESE REFORM AND FUTURE CONSIDERATIONS

Abstract

One of the main criticisms levelled against the investor-State dispute settlement system [“ISDS”] is the lack of a transparency regime in the dispute resolution process, particularly the limited opportunities for amicus curiae intervention. This article aims to analyse the recent developments regarding amicus intervention in ISDS proceedings in the People’s Republic of China [“China”]. The analysis reveals that the current amicus intervention provisions under the new generation of Chinese investment agreements still impose several restrictions on amicus intervention in arbitral proceedings. To strike a better balance between the protection of the interests of both parties and the external interests, this article proposes procedures for when and how an amicus may participate in arbitral proceedings under future Chinese investment agreements. In addition, the article proposes that to ensure that maximum benefits can be realised from amicus participation, China should establish safeguards to provide amici with the access to relevant arbitral documents and oral hearings. However, achieving the above goal should not come at the expense of undermining the confidential and protected information of both parties.