Defragmenting International Investment Law to Protect Citizen-Consumers : The Role of Amici Curiae and Public Interest Groups

Investment arbitration decisions are often inconsistent. In particular, complaints about the unpredictability of NAFTA Chapter 11 jurisprudence and the difficulties in balancing foreign investors' interest and public policy are common and unresolved. An examination of the role of interest groups may shed important light on the resolution of that problem as they are involved in the social construction of the meaning and use of NAFTA Chapter 11 through arbitration and public debate. This work discusses the extent to which amici curiae empower public interest groups that seek to protect citizen-consumers. It argues that currently amici curiae provides an extremely narrow list of participation rights to public interest groups that, coupled with economic and political disadvantages in many cases, result in censoring the views of such groups and playing the political role of symbolic accountability. This work proposes an expansive view of amici curiae for public interest groups in light of the potential of the latter to counter the influence of corporate interest groups and to contribute to both minimize NAFTA Chapter 11 inconsistencies and strike a more realistic balance between the public interest and foreign investors' interest. The overall impact of such expansive amici curiae will probably be the defragmentation of NAFTA Chapter 11, that is to say, public interest groups will be empowered to introduce public interest considerations such as human rights, environmental protection and public health into NAFTA analysis, that are likely to protect the interest of local citizen-consumers. However, that requires not only greater legal powers for public interest groups, but also favorable financial and political conditions for an effective participation of public interest groups in NAFTA disputes. The argument is illustrated with a brief discussion of amici curiae in the context of anti-smoking groups and tobacco policies in Canada affecting particularly vulnerable groups with high rates of tobacco consumption such as aboriginal communities and low-income groups