Tribunal prepares for amici curiae in miners’ dispute with South Africa

By Damon Vis-Dunbar
21 October 2008

Nonparties wishing to intervene in an international arbitration launched by Italian miners against the government of South Africa have been offered a set of procedures to follow.

A two-page document, available from the ICSID secretariat, summarizes the allegations made by the Italian miners, outlines the steps that need to be taken by non-disputing parties seeking to make an amicus curiae (friend of the court) application, and describes the criteria that will guide the tribunal in deciding whether to approve potential petitions.

The arbitration—Piero Foresti, Laura De Carli and others v. the Republic of South Africa—has received more attention than most international investment disputes given a discernible human-rights dimension to the claim. The claimants, two Italians involved in South Africa’s granite mining industry, are seeking compensation for alleged expropriation that stems, in part, from legislation intended to boost participation and ownership by historically disadvantaged South Africans in the mining sector.

The claimants have alleged breaches of the Italy-South Africa and Benelux-South Africa bilateral investment treaties.

So far, there have not been any requests to make amicus curiae applications, according to the ICSID secretariat. However, civil society groups in South Africa are contemplating action. A non-profit law clinic, the Legal Resources Centre (LRC), says that it has already been instructed to advise on an amicus curiae submission, and it has received statements of interest from other civil society groups that are contemplating doing the same.

At this point, it is not clear what access non-disputing parties will have to documents—such as pleadings filed by the parties— or to the hearings. Neither party to the dispute has decided whether it will release their memorials to non-disputing parties, nor if the hearings will be open to the public. Under ICSID rules, a tribunal may accept written amicus briefs after “consulting” the parties, but both parties must consent before the hearings are opened up to nonparties. 

In deciding whether to admit written briefs by amici, the tribunal says it will take into account the written petitions by applicants, as well as:  (i) “the views of the Claimants and Respondent"; (ii) “any undue burden or unfair prejudice which the acceptance of written submissions by non-disputing parties may place on the Parties, the Tribunal, and the proceedings"; (iii) and “the degree to which the proposed written submission is likely to assist the Tribunal in the determination of a factual or legal issue related to the proceeding.”

Hearings in the case, which will be held in The Hague, are currently slated for December 2009, although they may be pushed back to early 2010.

Further reading:

For past ITN reporting on this case, including a description of the dispute, see:  “More details emerge of miner's case against South Africa”, By Luke Eric Peterson, Investment Treaty News, November 30, 2008 

This paper, co-written by a lawyer with knowledge of the claimants’ case, provides useful background to the dispute: “South Africa’s Bilateral Investment Treaties, Black Economic Empowerment and Mining: a Fragmented Meeting”, by Matthew Coleman and Kevin Williams, Business Law International, Vol 9, No. 1, January 2008.