Filipe Galvão Teles publishes article "The European Commission as Amicus Curiae of Arbitral Tribunals: Is It a Legitimate Relationship?"

This article, written by Morais Leitão's lawyer Filipe Galvão Teles, member of the Litigation and Arbitration team, discusses the role adopted by the European Commission (EC) as amicus curiae of the arbitral tribunal in disputes between Member States of the European Union and European investors, in particular in the energy sector, and under the Energy Charter Treaty (ECT).
This paper was written after the highly controversial decision of the European Court of Justice in the case Slowakische Republik v. Achmea BV. However, it will not focus on the substantive issues underlying the EC's position against intra-EU investment arbitrations, but on the procedural issues surrounding the EC's role as amicus curiae.
The author has focused on published decisions of arbitral tribunals on applications to intervene as amicus curiae - as in Vivendi v. Argentina - in order to conclude that, despite the open and receptive stance of arbitral tribunals, the EC may not, in most cases, have the special knowledge, interest or independence to be admitted as amicus curiae.
In this context, the author also suggests that the arbitral tribunals have been adopting a flexible position, which is claimed as a reaction to an urgent need to make investment arbitration a more transparent and legitimate system in the eyes of the public.
Finally, the author concludes that the EC should only be allowed to act as amicus curiae in exceptional cases, and where the benefits of the EC's perception of EU law outweigh the potential harm induced to the complainant and to the effective conduct of the proceedings.