This paper focuses on the role of amicus curiae in commercial litigation. The research endeavors to discuss and analyze both the legal and factual discourses which arise out of various court decisions in view of promoting the relevance of amicus curiae, and particularly with regards to commercial litigation in different countries. This paper shall propose that the application or inclusion of amicus curiae in commercial litigation is relevant and should be encouraged.
The participation of amicus curiae in litigation is a well-established practice in South African legal history. The South African courts “are increasingly recognizing that certain matters…must necessarily involve the perspectives and voices of organisations or entities that may not have a direct legal interest in the matter…” The first description of the role of an amicus in South African law reports can be traced to the 1939 case of Connock’s (SA) Motor Co Ltd v Pretorius in which Millin J stated that “the definition of the term is to be found in several legal dictionaries [that] speak of an amicus as a bystander – someone who is present in court and not concerned with the matter in hand, who may be counsel or may not.” The judge went on to describe an amicus as someone who, “if he observes the judge in doubt about something… asks leave to come to his assistance…and help the judge by pointing out what appears to be in danger of being overlooked.”23 This traditional role of amicus, as then perceived, has since changed considerably. Today, the amicus fulfills a wider range of functions and plays a much more formal role in litigation
The amicus practice in South Africa has been to allow persons and organizations or entities that may not have a direct legal interest in a matter, to participate, where sufficient interest has been established. This follows the terms of the Rules of the Constitutional Court The duty of amicus to the Court, in that country, was succinctly stated by the Constitutional Court in Re: Certain Amicus Curiae Applications; Minister of Health and Others v. Treatment Action Campaign and Others, (CCT 8/02)  (at paragraph 5 of the Judgment), in the following terms:
“The role of an amicus is to draw the attention of the court to relevant matters of law and fact to which attention would not otherwise be drawn. In return for the privilege of participating in the proceedings without having to qualify as a party, an amicus has a special duty to the court. That duty is to provide cogent and helpful submissions that assist the court. The amicus must not repeat arguments already made but must raise new contentions; and generally these new contentions must be raised on the data already before the court. Ordinarily it is inappropriate for an amicus to try to introduce new contentions based on fresh evidence.”
Justice Sachs in the case of Government of the Republic of South Africa and Others v. Grootboom and Others 2001 (1) SA 46 (CC) noted the special merits brought by advocates who participated in the case as amici.
“I might mention that we were helped at the hearing in a most considerable way by the participation of the Human Rights Commission and the Community Law Centre of the University of the Western Cape. Counsel for the Legal Resources Centre appeared on their behalf and succeeded in broadening the debate so as to require the Court to consider the right of all South Africans to shelter, whether they had children or not. The case showed the extent to which lawyers can help the poor to secure their basic rights”.
As observed by the Constitutional Court of South Africa in the case of Children’s Institute v. Presiding Officer of the Children’s Court, District of Krugersdorp and Others:
Rule 3 of the Supreme Court Rules, 2012 defines “amicus curiae” as “a person who is not party to a suit, but has been allowed by the Court to appear as a friend of the Court.” Rule 54(1) vests the Court with the power to appoint amicus curiae in any proceedings, while sub-rule 2 sets out the criteria: “The Court shall before allowing an amicus curiae take into consideration the expertise, independence and impartiality of the person in question and it may take into account the public Interest, or any other relevant factor”
In the High Court of South Africa Guateng Local Division Johannesburg Case No. 48226/12 in Re Bongani Nkala & 55 others and Harmony Gold Mining Company Limited & 31 others
The case was premised on whether the applicant had satisfied the threshold requirements for admission as amicus curiae. In this application brought in terms of rule 16A(5) of the Uniform Rules of Court (“the Uniform Rules”), the Treatment Action Campaign NPC (“the TAC”) and Sonke Gender Justice NPC (“Sonke”) seek to be admitted as amici curiae(“amici”) in the application brought by Bongani Nkala and 55 others (“the class action applicants”) under consolidated case no. 48226/12 (“the main application”). In opposing this application, the amicus respondents seek to rely on two sets of allegations: first, that the TAC and Sonke have not satisfied the requirements for admission as amici; and second, that their admission would unnecessarily burden the court and the parties.
The opposition of the amicus respondents is premised on a misunderstanding of the role of an amicus in matters raising constitutional issues. The amicus respondents misconceive the primary role of the amicus. As pointed out by the Constitutional Court in Children’s Institute v Presiding Officer, Children’s Court, Krugersdorp, and Others  2 SA 620 (cc) that role is to promote and protect the public interest in two key ways, First, “by ensuring that courts consider a wide range of options and are well informed”; an Second, “by creating space for interested non-parties to provide input on important public interest matters, particularly those relating to constitutional issues.
At its core, the role of the amicus is to help courts to promote and protect constitutional rights. The mechanism by which this is done is to provide an opportunity for any party interested in a constitutional issue raised in existing proceedings to be admitted as amicus to make factual and/or legal submissions that put the court in a better position to adjudicate on these issues than would be the case were the admission denied.
Although there are no formal rules governing the role of amicus curiae in Uganda, the issue has been the subject of legal scholarship. M. Ssekaana and S. Ssekaana in their book, Civil Procedure and Practice in Uganda (2010) (at page 50) have considered the role of amicus curiae as follows:
“In its ordinary use the term implies a friendly intervention of counsel to remind the court of some matter of law which has escaped its notice in regard of which it is in danger of going wrong. It seems that such a person is not a party to an action but one who calls the attention of the court to some decision or point of law which appears to have been overlooked… Where the intervention would only serve to widen the case between the parties or introduce a new cause of action, the intervention should not be allowed. Amicus curiae is not a party to an action has no control over it and generally should not be allowed costs. The right of amicus curiae to address the court is purely discretionary and is not dependent upon the consent of the parties to the proceedings”
The subject of amicus curiae has also not generated any academic jurisprudence. Although the Uganda Law Society (ULS) has dealt with the subject, by way of making recommendations for express incorporation of the amicus procedure in the Civil Procedure Rules, the ULS has not made thorough investigations of the subject. Yet, the society has dealt with the subject together with the one of recusal of a judge as if the two are related. The recommendation of the Society runs as follows: “We recommend that the principles governing applications for recusal of a judicial officer and amicus curiae be incorporated in to the Civil Procedure Rules. The committee also recommends that a set of rules be formulated and incorporated in the rules for instances where a person wishes to submit an amicus brief for an unrepresented party in a suit.” Nonetheless, there are a number of cases which have dealt with the subject of amicus curiae and adopted some principles to be followed by courts. In these cases, the courts have used the definition of the term amicus curiae to determine the circumstances under which a person may be admitted as amicus. What is clear from these cases though is that they do not lay down elaborate principles that have to be followed.
Yet, the concept of amicus curiae has been defined in a narrow manner to mean a person who participates in the proceedings at the invitation of the Court. This has meant one cannot apply to participate in a case as amicus curiae; it is only court which can on its own initiative invite any person it thinks can assist in the case as amicus. This contrast with the South African procedure, which has illustrated above allows any person to apply to court to be admitted in a case as amicus curiae.
This question has also been considered by the United States Supreme Court in the case of Florida v. Georgia, 58 U.S. (17 How.) 478 (1854). In that case, the Attorney – General of the United States sought to be heard in a case, on appeal, where the interests of the Federation were likely to be compromised. The Court considered the familiar practice of hearing the Attorney – General on behalf of the State, in suits between individuals involving Page 13 of 31 matters of public interest; and if recognized that the Federation would be adversely affected by the decision, if it was accorded no opportunity to be heard. The Court acceded to the Attorney – General’s request, granting the motion. There were, however, dissenting opinions (by Justices Curtis and McLean) which proceeded on the basis that the Supreme Court’s jurisdiction had been compromised by the majority decision.
The Supreme Court of Minnesota in the case of State v. Finley, 242 Minn. 288 (1954) rejected an amicus brief that suggested by implication, that an accused person was guilty. The Court delimited the remit of amicus in the following terms:
“The ordinary purpose of an amicus curiae brief in a civil action is to inform the court as to facts or situations which may have escaped consideration or to remind the court of legal matters which have escaped its notice and regarding which it appears to be in danger of making a wrong interpretation.”
Many developing countries are rich in industrial raw material and but lack the capital and/or monetary strength to sufficiently tap into the said industrial material. The result of this paradox therefore is the invitation, by the governments of these developing countries, of investors often from developed countries, to invest their time and money in the industrialization of the developing countries at a profit to the foreign investors. Investments made by the foreign investors may prove to touch on numerous delicate issues amongst which are; environmental sustainability issues, Human right issues and public interest issues. It for this reason that countries hosting the investment aspirations of the foreign investors put in place measures to protect the rights of these investors while at the same time ensuring proper and sustainable management of the raw materials. When host countries fail to put in place the aforementioned critical measures, disputes may arise.
As these and many other cases demonstrate, environmental regulation is often–and, indeed, is increasingly–at the heart of investment treaty arbitration. These kinds of clashes have become more frequent as the regime sustaining the rights protecting foreign investors, enforced by a process of binding arbitration, continues to grow at what can only be described as at an exponential rate. International investment agreements (IIAs)–of which it has been recently estimated there are approximately 3,000–continue to swell in number while becoming more comprehensive and grander of scale, with recent agreements encompassing an ever wider range of parties and issue coverage
As a result of this expansion, the pressure points created where the investment regime comes into conflict with environmental regulation have also multiplied. These encounters, and the responses to them generated by the Investor State Dispute Settlement (ISDS) process, have led to public concern, resistance, and, with little recourse for locally affected actors to weigh in on these decision-making processes, frustration.
The foremost forum for NGOs in this activity is ISDS, and their tool the amicus curiae brief. In ISDS, the first amicus curiae applications arose under NAFTA. These first requests were made in 2000 by an international sustainable development NGO to the tribunal in Methanex v United States. Briefly, third party involvement was not contemplated, at the time, either in NAFTA or under the rules under which the dispute was proceeding (UNCITRAL), so the Methanex tribunal’s eventual decision to accept the submissions was path-breaking. Several subsequent NAFTA arbitrations saw non-disputing parties apply to make amicus curiae submissions. In UPS v Canada, several months after the initial Methanex ruling regarding the admission in principle of third party submissions, the Canadian Union of Postal Workers and the Council of Canadians applied both to be added as parties to the proceedings and, failing that, to be permitted to make submissions. Both requests were denied.
Methanex Corporation Vs. United States of America
On 25 August 2000, a petition was submitted to the Tribunal by the International Institute for Sustainable Development requesting permission to submit an amicus curiae brief to the Tribunal (the “Institute Petition”). On 6′” September 2000, a joint Petition was submitted to the Tribunal by (i) Communities for a Better Environment and (ii) the Eanh Island Institute for permission to appear as amici curiae (the “Communities/Eanh Island Petition.
The Institute Petition contained requests for permission to file an amicus brief (preferably after reading the parties’ written pleadings, to make oral submissions, and to have observer status at oral hearings. Permission was sought on the basis of the immense public importance of the case and the critical impact that the Tribunal’s decision will have on environmental and other public welfare law-making in the NAFTA region. It was also contended that the interpretation of Chapter 11 of NAFTA should reflect legal principles underlying the concept of sustainable development; and that the Institute could assist the Tribunal in this respect. A further point was made that participation of an amicus would allay public disquiet as to the closed nature of arbitration proceedings under Chapter 11 of NAFTA. As to jurisdiction, it was argued that the Tribunal could grant the Petition under its general procedural powers contained in Article 1 S of the UNCITRAL Arbitration Rules, and that there was nothing in Chapter 11 to prevent the granting of the permission requested by the Institute. Reference was also made to the practice of the WTO Appellate Body and courts in Canada and the United States.
Mexico stressed that Chapter 11 of NAFTA did not provide for the involvement of persons other than the Disputing Parties and NAFT A Parties on questions of the interpretation of NAFTA pursuant to Article 1128. It contended that if amicus curiae submissions were allowed, the amici would have greater rights than the NAFTA parties themselves because of the limited scope of Article 1128 submission. Canada also stated that it would be asking its NAFTA partners to work together on the issue of amicus curiae’s participation as a matter of urgency in order to provide guidance to arbitration tribunals under Chapter 11.
Like Mexico, the Claimant also argued that reliance on the practice relating to amici in the domestic courts of certain jurisdictions was inappropriate to these arbitration proceedings. Amicus briefs were not permitted in one of the NAFTA States, namely Mexico. The court processes of one NAFTA State should not be preferred over Mother; and the international rules governing foreign investment should not be made to give way to domestic practices. The Claimant also considered that WTO practice was irrelevant and should be disregarded by the Tribunal. Further, insofar as it was aware, no WTO panel or Appellate: Body had accepted for consideration an unsolicited amicus brief. Briefs had been filed in each case, but the WTO Panel or Appellate Body had always determined that these briefs should not be considered. And the power under Article 13 of the Dispute Settlement Understanding to seek information from outside sources had not been used in this respect. Further, in the order of 16tb November 2000 in European Communities – Measures Affecting Asbestos and Asbestos Containing Products, all seventeen applications for amicus status were rejected by the WTO.
The Tribunal Ruled That Article 15(1) UNICTRAL arbitration Rules are intended to provide the broadest procedural flexibility within fundamental safeguards, to be applied by the arbitration tribunal to fit the particular needs of the particular arbitration. As a procedural provision, however, it cannot grant the tribunal any power to add further disputing parties to the arbitration, nor to accord to persons who are non-parties the substantive status, rights or privileges of a Disputing Party. Likewise, the Tribunal can have no power to accord to any third person the substantive rights of NAFTA Parties under Article 1128 of N AFTA. The issue is whether Article 15(1) grants the Tribunal any lesser procedural power in regard to non- party third persons, such as the Petitioners.
In addressing this issue, there are four principal matters to be considered:
- Whether the Tribunal’s acceptance of amicus submissions falls within the general scope of Article 15(l)(2)
- If so, whether the acceptance of amicus submissions could affect the equal treatment of the Disputing Parties and the opportunity of each fully to present its case, under Article 15(l) (2)
- Whether there are any provisions in Chapter 11, Section B, of NAFTA that modify the application of Article 15(1) for present purposes: and
- Whether other provisions of the UNCITRAL Arbitration Rules likewise modify the application of Article 15( 1) in regard to this particular case, given the introductory words of the sub-paragraph numbered  of Article 15(1).
The culture of the international arbitration community, which seems accurately described as commercially oriented. As Tienhaara notes, arbitrators tend to be experts in commercial law and do not, as a general rule, have much (if any) experience with environmental law
On amicus participation the tribunal had a lot of insight:
The tribunal stated that if it is not allowed to add another person as party to the dispute without seeking consent from the parties, it is equally precluded from solving the substantive dispute by exercising power over the arbitration. They also ruled that the third party does not acquire the rights of the Disputing Parties under Article 1128 of NAFTA.
IN THE WORDS OF THE TRIBUNAL
‘…….There is an undoubtedly public interest in this arbitration… The substantive issues extend far beyond those raised by the usual transnational arbitration between commercial parties. This is not merely because one of the Disputing Parties is a State: there are of course Disputes involving States which ace of no greater general public importance than a dispute between private persons. The public interest in this arbitration miles from its subject matter-, as powerfully suggested in the Petitions. There is also a broader argument, as suggested by the Respondent and Canada: the Chapter 11 arbitral process could benefit from being perceived as more open or transparent or conversely be harmed if seen as unduly secretive. In this regard, the Tribunal’s willingness to receive amicus submissions might support the process in general and this arbitration in particular; whereas a blanket refusal could do positive harm.
There are other competing factors to consider: the acceptance; of amicus submissions might add significantly to the overall cost of the arbitration and) as considered above, there is a possible risk of imposing an extra burden on one or both the Disputing Parties. In this regard, as appears from the Petitions, any amicus submissions from these Petitioners are more likely to run counter to the Claimant’s position and eventually to support the Respondent’s case. This factor has weighed heavily with the Tribunal; and it is concerned that the Claimant should receive whatever procedural protection might be necessary.………’
The Constitution of Kenya, 2010, by express terms, requires Courts to “develop the law to the extent that it does not give effect to a right or fundamental freedoms” (Art. 20(3) (a)). This is the very foundation for well – informed inputs before the Court, which inherently, justifies the admission of amici curiae. We have a duty to ensure that our decisions enhance the right of access to justice, as well as open up positive lines of development in jurisprudence, to serve the judicial system within the terms of the Constitution
The Constitution further bestows upon all State Organs and all public officers the duty to respond to the needs of vulnerable groups within the society (Art. 21(3)). This obligation, in the context of an enlarged locus in the enforcement of fundamental rights and freedoms (Article 22(2), and of the enforcement of the Constitution itself (Article 258), enjoins that a person seeking to canvass the values and principles under the Constitution, by applying legal expertise, materials, or information available, is a potential friend of the Court.
The evolution of the amicus role in Kenya is distinguishable from the position in jurisdictions such as the United States, Australia, South Africa and Ireland. This distinction surfaces in the light of the decision of the Supreme Court of Ireland, in I v. Minister for Justice, Equality and Law Reform:
“…….the court is satisfied that it does have an inherent jurisdiction to appoint an amicus curiae where it appears that this might be of assistance in determining an issue before the court. It is an unavoidable disadvantage of the adversarial system of litigation in common law jurisdictions that the courts are, almost invariably, confined in their consideration of the case to the submissions and other materials, such as relevant authorities, which the parties elect to place before the court. Since the resources of the court itself in this context are necessarily limited, there may be cases in which it would be advantageous to have the written and oral submissions of a party with a bona fide interest in the issue before the court which cannot be characterized as a meddlesome busy body. As the experience in other common law jurisdictions demonstrates, such an intervention is particularly appropriate at the national appellate level in cases with a public law dimension. It is, at the same time, a jurisdiction which should be sparingly exercised…”
While such jurisdictions require amicus to have bona fide interest in the matter, our practice is that amicus ought to come into the proceedings on a foundation of neutrality; and by virtue of the express terms of the Constitution, parties with an interest in the proceedings are accommodated in the capacity of interveners.
Amicus participation is a matter of privilege, rather than of right. And “intervention” in a case, as provided under Rule 25 of the Supreme Court Rules, 2012 allows parties with sufficient interest in the matter to apply to be enjoined as interveners or interested parties. This avenue is set apart from that of amicus. As opposed to amicus, interveners have an interest in the rest of the suit, as to be affected by the resulting Judgment of the Court. Amicus curiae on the other hand, are “advisors to the Court”, and not to the parties, and are in no way bound by the resulting Judgment, except by way of precedent. Amici curiae cannot be perceived as an extension of the Court; and they are not to advance any party’s case, and ought not to extend their participation to the realm of interveners in any legal proceedings. The interposition of amici in judicial proceedings is terminated when they have put forward the points of law outlined in their amici brief.
There is, however, an exception in amicus interventions, in the case of advisory-opinion proceedings before this Court, as signaled in Re the Matter of the Interim Independent Electoral Commission, Sup. Ct. Const. Appl. No.2 of 2011. The absence of a live controversy in such proceedings opens a window for the amicus to steer the Court, by specific proposals, towards a definite legal position. The ultimate decision, however, lies with the Court.
In the High Court case, Justice Phillip K. Tunoi & Another v. Judicial Service Commission & 2 Others (op. cit) (at para.30), Mr. Justice Odunga had aptly observed, in relation to amicus status in Kenya today, thus:
“It is unfortunate that in this country, unlike in other jurisdictions with an advanced Constitution such as ours, we do not have in place comprehensive rules which govern the admission of persons as amici in legal proceedings.”
Guidelines In Relation To the Role of Amicus Curiae
From the case, the guidelines set out in relation to the role of amicus curiae are:
(i) An amicus brief should be limited to legal arguments.
(ii) The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
(iii) An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tends to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay. The Court may therefore, and on a case- by- case basis, reject amicus briefs that do not comply with this principle.
(iv) An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.
(v) The Court may call upon the Attorney- General to appear as amicus curiae in a case involving issues of great public interest. In such instances, admission of the Attorney- General is not defeated solely by the subsistence of a State interest, in a matter of public interest.
(vi) Where, in adversarial proceedings, parties allege that a proposed amicus curiae is biased, or hostile towards one or more of the parties, or where the applicant, through previous conduct, appears to be partisan on an issue before the Court, the Court will consider such an objection by allowing the respective parties to be heard on the issue (see: Raila Odinga & Others v. IEBC & Others; S.C. Petition No. 5 of 2013-Katiba Institute’s application to appear as amicus).
(vii) An amicus curiae is not entitled to costs in litigation. In instances where the Court requests the appearance of any person or expert as amicus, the legal expenses may be borne by the Judiciary.
(viii) The Court will regulate the extent of amicus participation in proceedings, to forestall the degeneration of amicus role to partisan role.
(ix) In appropriate cases and at its discretion, the Court may assign questions for amicus research and presentation.
(x) An amicus curiae shall not participate in interlocutory applications, unless called upon by the Court to address specific issues.
In addition, guidelines certain guidelines emerged from Mr. Justice Odunga’s decision in the Justice Tunoi case:
(xi) The applicant ought to raise any perception of bias or partisanship, by documents filed, or by his submissions.
(xii) The applicant ought to be neutral in the dispute, where the dispute is adversarial in nature.
(xiii) The applicant ought to show that the submissions intended to be advanced will give such assistance to the Court as would otherwise not have been available. The applicant ought to draw the attention of the Court to relevant matters of law or fact which would otherwise not have been taken into account. Therefore, the applicant ought to show that there is no intention of repeating arguments already made by the parties. And such new matter as the applicant seeks to advance, must be based on the data already laid before the Court, and not fresh evidence.
(xiv) The applicant ought to show expertise in the field relevant to the matter in dispute, and in this regard, general expertise in law does not suffice.
(xv) Whereas consent of the parties, to proposed amicus role, is a factor to be taken into consideration, it is not the determining factor.
In addition to these guiding principles, the following directions may be applied by a Court considering an amicus application:
(i) A party seeking to appear in any proceedings as amicus curiae should prepare an amicus brief, detailing the points of law set to be canvassed during oral presentation. This brief should accompany the motion seeking leave to be enjoined in the proceedings as amicus.
(ii) (ii) The Court may exercise its inherent power to call upon a person to appear in any proceedings as amicus curiae.
(iii) In proceedings before the Supreme Court, the Bench as constituted by the President of the Court may exercise its discretion to admit or decline an application from a party seeking to appear in any proceedings as amicus curiae, and denial or acceptance such of an application should have finality.
(iv) The Court reserves the right to summarily examine amicus motions, accompanied by amicus briefs, on paper without any oral hearing.
(v) The Court may also consider suggestions from parties to any proceedings, to have a particular person, State Organ or Organization admitted in any proceedings as amicus curiae.
From my analysis of the text above the roles of amicus curiae in commercial litigation includes is primarily:
Contributing to the resolution of the matter at hand
The amicus curiae should be keen to aid the court in interpreting and applying commercial law principles. They should provide relevant historical context and constitutional design and principles. When a person applies to be joined as amicus, they should be sure that they are not simply duplicating the input of the parties but are giving a perspective which would otherwise have been missed, yet when brought out would make a significant contribution to the outcome of a matter. The intervention should also be informed by concrete and evidence-based research.
It is not for amicus to suggest to the Court whether a decision was wrong or right, nor to advise on which resolution to arrive at but to aid the Court in arriving at a determination based on the law, and/or upon uncontroverted, scientific and verifiable facts.
The role of amicus should go as far as enriching their jurisprudence.
The applicant should be non-partisan/ impartial. An amicus curiae should not exhibit partiality towards any party’s cause; otherwise some party would be prejudiced. Given the role of amicus as friend of the Court, impartiality is required of an amicus curiae. The role of an amicus is to aid the Court so it may reach a legal, pragmatic and legitimate decision, anchored on the tenets of judicial duty. In an adversarial legal system such as ours, impartiality on the part of the Court, and all its agencies such as amici curiae, must withstand all compromise. When determining whether amicus is partisan, the test should be that of the ordinary litigant, rather than of a legal expert examining the dichotomy between factual matter and legal matter. Admission as amicus should outweigh any possible prejudice to any of the parties.
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