A Comprehensive Study on the Institution of Amicus curiae and the Current Practice inInvestor-State Arbitration

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Xinglong YANG


Amicus curiae, as a commonly used Latin term, the literal meaning is “friend of the court”. Amicus curiae are ordinarily justified on the basis of the friends are in a position to provide courts or arbitral tribunals their special perspectives or expertise relating to a dispute. The emergence of amicus curiae in Roman times undoubtedly provided courts an essential method to avoid erroneous decisions, and this practice was well developed in both common law and civil law jurisdictions, also the modern international proceedings, such as the investor-state arbitration. Even though allowing amicus curiae participation in investor-state arbitration would increase disputing parties burdens because the parties have to spend extra times and costs for reviewing amicus submissions, amicus participation is indeed playing a crucial role in preserving the public interests involved in investment arbitration, assisting arbitral tribunals to reach legitimate awards, bringing allegations against state’s illegal behaviours, contributing to the development of international investment law, and avoiding fragmentation of international law. Due to the benefits, the institution of amicus curiae has been officially adopted by modern investment treaty as well as prominent arbitration rules.


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