Session 3: Participation

Session 3

NGO Participation in Investment Treaty Arbitration: Real Openness or a Lip Service?
Tomoko Ishikawa
Faculty of Law, University College London, United Kingdom

Historically, environmental NGOs have not played a significant role in investment treaty arbitration, even though they wished to intervene in the arbitration proceedings to assist the tribunal with their own expertise and views when the relevant dispute involves environmental aspects.  This is partly because the investment treaty regime has long been considered closed, the implication of which is that such NGOs do not operate in the regime.
However, in the last few years, the investment treaty regime appears to have experienced a shift towards greater openness to the participation of NGOs.  One of such changes is the development of the investment arbitration rules and practice concerning the amicus curiae submissions from non-parties.  Since the NAFTA/UNCITRAL case of Methanex Corporation v. United States, several investment arbitration tribunals have held that a tribunal has discretional power to accept submissions of written amicus curiae briefs.  The statement on third party participation issued by the NAFTA Free Trade Commission and the recently amended Rule 37 of the ICSID arbitration rule confirm this trend.
That said, whether or not environmental NGOs may actually contribute to the resolution of such disputes through amicus curiae submissions depends on the tribunals.  For example, it is pointed out that the WTO panels and Appellate Body, while accepting certain amicus curiae submissions, have not made substantive use of such submissions.  It is also argued that the confidentiality of arbitration proceedings prevents amicus from making effective arguments.  This paper critically analyses the use of amicus curiae briefs in investor-state arbitration and the WTO cases, and concludes by proposing ways to render this ‘development’ more than rhetoric.

The Role of Religious NGOs in Shaping Environmental Ethics in International Civil Society – The World Council of Churches as a Case Study
Daniel McFee
Director of the Mercyhurst Institute for Ethics and Society, Mercyhurst College, Erie, Pennsylvania, USA

Hundreds of non-governmental organizations (NGOs) serve in consultative status with the United Nations. Only fourteen religious NGOs have achieved the coveted level of “General Consultative Status” within the United Nations’ Economic and Social Council (ECOSOC). This general consultative status empowers these religious NGOs to shape, direct, and criticize public policy within ECOSOC.
The largest and most influential religious NGO with general consultative status in ECOSOC is the World Council of Churches (WCC), a prominent Christian Protestant NGO based in Geneva, Switzerland. The WCC has for nearly 40 years utilized its general consultative status to engage environmental issues through the institutional apparatus of the United Nations. This paper traces the evolution of the WCC’s recent work on environmental issues (since 1991) and sketches the complex nature of the WCC’s work as a religious NGO attending to environmental issues within international civil society.
In this paper I contend that the WCC’s environmental work as a religious NGO falls into three overlapping and emerging ethical modes. First, the WCC employs Christian prophetic language regarding impending ecological disasters. Next, the WCC operates as a public policy expert offering specific environmental policy recommendations. Finally, the WCC acts as a social advocate, taking up ad hoc environmental causes in order to stand by marginalized peoples as a sign of solidarity.
By examining this multi-layered and complex institutional response to environmental problems by the WCC, one is afforded a richer and more accurate portrait of how religious NGOs are currently engaging in environmental ethics than many scholars have acknowledged. This paper offers the WCC’s recent environmental work as a seminal case study for both describing how religious NGOs operate in civil society and how other religious NGOs might formulate a set of “best practices” to attend more effectively to environmental ethics.