Non-Disputing Party Submission - ICSID Convention Arbitration

Tribunals may accept submissions by non–disputing parties after consulting both parties (Arbitration Rule 37(2)).

A non-disputing party is an individual or entity that is not a party to the dispute, but asks the Tribunal’s permission to file a written submission in the case.

The non-disputing party’s role is to assist the Tribunal in deciding the dispute by providing a perspective different from that of the parties, via the submission of a written brief.

When considering whether to grant the request, the Tribunal takes into account factors such as (Arbitration Rule 37(2)):

  • whether the submission would assist the Tribunal by providing a perspective different from the disputing parties;
  • whether the submission would address a matter within the scope of the dispute, and
  • whether the non–disputing party has a significant interest in the proceeding.

Some treaties address the right of non-disputing parties to participate in an arbitration and the criteria applicable to such participation (see e.g. statement of the Free Trade Commission on Non-Disputing Party participation, October 7, 2003).

State parties to a treaty which are not parties to the dispute may have a right under that treaty to make submissions on a question of application or interpretation of the treaty (see e.g. NAFTA article 1128).

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