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Piero Forresti v South Africa , 105 InterAgua v Argentina , 106 Vivendi v Argentina , 107 and Biwater v Tanzania. 108 In Aguas del Tunari v Bolivia and Piero Forresti v South Africa the tribunals did not get to examine the cases on the merits. 109 The rest of the cases ended with an award. This section revisits these awards and explores the effect amicus curiae participation had on the notion of human rights. The cases of InterAgua v Argentina and Vivendi v Argentina present an interesting subject matter to study. As stated in III.B, the cases related to the same factual situation and were decided by the same tribunal. In one of the cases, InterAgua v Argentina , an amicus curiae applied to participate in the proceedings but never filed any submission. 110 In the other case, Vivendi v Argentina , several NGOs filed a joined submission. 111 The Vivendi v Argentina tribunal noted: ‘[t]he Tribunal also received the benefit of an amicus curiae submission […] that further developed the relationship of the human rights law to water and to the issues in this case. That submission pointed out that human rights law recognizes the right to water and its close linkages with other human rights, including the right to life, health, housing, and an adequate standard of living. […] Since human rights law provides a rationale for the crisis measures, they argue that this Tribunal should consider that rationale in interpreting and applying the provisions of the BITs in question.’ 112 However, although the amicus curiae contribution was mentioned once more in the award, 113 tribunal’s analysis of the case was ultimately the same as in InterAgua v Argentina . 114 The conclusions that the tribunal reached, that the requirements for successful invocation of the state of necessity principle were not met, were the same in both cases. 115 Prima facie it may seem that amicus curiae therefore had no effect on the proceedings. However, that is not necessarily the case. Firstly, it should be remembered that both of the cases were decided by the same tribunal. The submission that amici curiae jointly filed in Vivendi v Argentina was not made public; it is not known precisely what kind of information it provided to the tribunal. However, the above quoted suggests that the submission did not introduce

105 Piero Foresti, Laura de Carli & Others v the Republic of South Africa (Petition for Limited Participation as non-Disputing Parties in term of Articles 41(3), 27, 39, and 35 of the Additional Facility of 17 July 2009) ICSID Case No ARB(AF)/07/01.

106 InterAgua v Argentina (n 40) [15]. 107 Vivendi v Argentina (n 39) [18]. 108 Biwater v Tanzania (n 44) [56]. 109 cf page 7 of this work. 110 InterAgua v Argentina (n 40) [15]. 111 Vivendi v Argentina (n 39) [18].

112 ibid [256]. 113 ibid [262]. 114 Compare InterAgua v Argentina (n 40) [238] – [243] with Vivendi v Argentina (n 39) [259] – [265]. 115 ibid.

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