Questions of public health before investment tribunals: Can amici curiae play a useful role?

This chapter critically reviews the role of amicus submissions in investment arbitration, with a focus on cases arising in the context of the COVID-19 pandemic. We review the changing role of the amicus process in the investment regime and trace its underlying objectives and justifications. We claim that in the context of the COVID pandemic, an extra dose of caution is required when weighing up the usual justifications for liberalising and encouraging the participation of amici curiae. In particular, the assumption that amicus participation serves to promote the legitimacy of arbitration is undermined when politically motivated amici seek to dress up their interventions as neutral scientific expertise. This cautionary tale resonates beyond the COVID context: in a post-truth era in which scientific evidence and expertise are constantly manipulated in the service of political agendas, tribunals will do well to approach the amicus process with increasing care.