An ICSID Tribunal Introduces Innovative Steps Into Non-Disputing Party Procedure


By Elizabeth Whitsitt

October 11, 2009

In a high-profile arbitration involving mining interests owned by Piero Foresti, Laura de Carli and others versus the Republic of South Africa, an ICSID tribunal (the “Tribunal”) has accepted two petitions for participation by Non-Disputing Parties (“NDPs”) and imposed unprecedented procedural steps regarding document disclosure and participant feedback.  In this case, a group of European investors claim that the South African government has effectively “extinguished” their mineral rights without providing adequate compensation by enacting legislation designed to ameliorate social conditions experienced by historically marginalized South Africans.

Hoping to assist the Tribunal by addressing the public interest and international law issues raised by the dispute, one of the petitions was initiated by a coalition of four non-governmental organizations comprised of the Centre for Applied Legal Studies (“CALS”), the Center for International Environmental Law (“CIEL”), the International Centre for the Legal Protection of Human Rights (“INTERIGHTS”), and the Legal Resources Centre (“LRC”), and the second petition was put forward by the International Commission of Jurists.

As a way of facilitating such participation, the Tribunal ordered the disclosure of the Parties’ key filings to the NDPs despite objections from one of the parties to the dispute – an innovative step in the development of NDP procedure.  Further, given the novelty of the NDP procedure, the Tribunal indicated that at the end of the arbitration it will invite the Parties and the NDPs to provide feedback concerning the procedure adopted for NDP participation in this case.  In addition, the Tribunal has committed to discuss the comments of the parties and the NDPs in its final award.

This is the first time that any ICSID tribunal has expressed interest in obtaining comment from the disputing parties and the NDPs on its NDP procedure; a ground-breaking development that will no doubt be the catalyst for some useful discussion regarding the contentious question of NDP participation in ICSID arbitrations.

Download the Petition initiated by Coalition of NGOs here.

Download the Petition initiated by the International Commission of Jurists here.

Download the Tribunal’s Decision here.

For further background on this dispute, see the ITN’s previous reporting:

“In Brief: Suspension extended in Piero Foresti, Laura de Carli and others v. Republic of South Africa”, By Damon Vis-Dunbar, Investment Treaty Newsletter, 8 June 2009, available here:

“European miners and South Africa suspend proceedings”, By Damon Vis-Dunbar, Investment Treaty Newsletter, 2 April 2009, available here:

“South African court judgment bolsters expropriation charge over Black Economic Empowerment legislation in the mining sector”, By Damon Vis-Dunbar, Investment Treaty Newsletter, 23 March 2009, available here: