Why the Amicus Curia Institution is Illsuited to address Indigenous Peoples’ Rights before Investor-State Arbitration Tribunals: Glamis Gold and the Right of Intervention

Abstract

Over the last decade, investor-state arbitration tribunals have shown more willingness to provide non-disputing parties with some possibility to participate through written amicus briefs. However, amicus participation is not a panacea to cure all of the existing shortcomings in investment law as regards transparency and access to justice. In fact, amicus has not yet been recognized as a right and is still subject to a series of limitations, all of which restrict its effectiveness. This article argues that such restrictions should be tempered in the case of indigenous peoples, in the light of their distinct cultural identity and the right to self-determination. To avoid the defenselessness of indigenous peoples and potential areas of overlap with their human rights, this article proposes the incorporation into international arbitration of the procedural institution of “intervention”−as opposed to amicus−from municipal law.