ELTE Law Journal • Rafael Quintero Godínez
must ensure the effective exercise of divergent and marginal voices’ communicative and participatory rights during arbitral proceedings. Their second argument is that, to secure the requirements of ICSID Arbitration Rule 37, arbitrators ‘should ensure that [amicus curiae] participation does not disrupt the arbitral proceedings or impose unfair cost or prejudice on the parties to the arbitration the requirements’.173 However, the closed character of this positivistic approach makes arbitration proceedings impermeable to extra-legal principles of democracy, reason or justice.174 As Habermas puts it ‘[t]he legitimation of the legal [positivistic] order as a whole shifts to its origin, that is, to a basic norm or rule of recognition that legitimates everything without itself being capable of rational justification’.175 However, this raises a problem: why should the voices of marginalised communities be silenced, even when the determinations of arbitral tribunals have an impact on their interests?176 For positivists, the solution rests on the idealistic notion that cases have to be decided based on established law – nothing more and nothing less.177 From that angle, it makes sense that Born and Forrest reject the view whereby investment tribunals would allow amicus participation without citing any apparent legal basis.178 Otherwise, they argue, Arbitration Rule 37 would be rendered ineffective.179 However, this positivist approach suffers from the same flaw as ‘legitimacy through legality’.180 That is, it considers any decision reached without recourse to non-legal normative considerations of morality or political philosophy to be appropriate.181 Positivists argue that a legal decision is prima facie valid because it has been impartially justified; namely, its impartial application precedes a valid decision.182 Even so, because legal decisions are not neutral in their application – but rather a Pandora’s box of pluralistic interpretations 183 – their legal validity does not guarantee their justice.184 In their attempt to achieving their own goals, positivistic decisions become solipsistic and imperialistic.185 Solipsistic, because they seeing nothing other than their own interests; and imperialistic, because everything taking place
Born and Forrest (n 139) 652. Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy (n 1) 202. 175 Ibid. 176 Cf. Bernhard von Pezold and Others v. Republic of Zimbabwe (n 89) para 62. 177 Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy (n 1) 201. 178 Born and Forrest (n 139) 636. 179 Ibid, 652. 180 Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy (n 1) 202. 181 Brian Leiter, ‘Legal Formalism and Legal Realism: What Is the Issue?’ (2010) 16 Legal Theory 111, 111, DOI: https://doi.org/10.1017/S1352325210000121. 182 Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy (n 1) 202. 183 Susan S Silbey, ‘After Legal Consciousness’ (2005) 1 Annual Review of Law and Social Science 323, 352, DOI: https://doi.org/10.1146/annurev.lawsocsci.1.041604.115938. 184 Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy (n 1) 202. 173 174
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Martti Koskenniemi, ‘International Law: Constitutionalism, Managerialism and the Ethos of Legal Education’ (2007) 1 European Journal of Legal Studies 8, 9.
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