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any new arguments or information that had not been public; it merely followed the line of argumentation used by the state, elaborated on it and further explained it. It can be presumed that since the factual situation was the same in both cases, whichever arguments the Vivendi v Argentina submission brought forward related to InterAgua v Argentina as well. It is not unreasonable to expect that the point of view that the tribunal was offered through the submission in Vivendi v Argentina would be tacitly considered by the same tribunal when it decided the InterAgua v Argentina case, especially when the two awards were rendered on the same day. Having the same arguments in mind, under the circumstances it would have been surprising if the tribunal had in fact come to different conclusions in both cases. 116 Secondly, the defense of necessity may be used only under very strict circumstances. It can be presumed that no matter how well amicus curiae had explained its arguments, factual circumstances of the case would never have justified its application. In another words, the notion that amicus curiae submission did not have any impact on the proceedings can be rebutted on the basis that the non-party actor was fighting a lost battle. Assessment of the third case renders an outcome that is more positive for supporters of amicus curiae participation. In Biwater v Tanzania its submission influenced the outcome of the case. The circumstances of the case are as follows: Tanzania started a program of repairing, updating and expanding water and sewage infrastructure. 117 It concluded a contract with the investor, under which the investor was obliged to provide water services in a designated area. 118 Tanzania then terminated the contract, leading the investor to instigate investment arbitration, claiming that its property was expropriated, and that it was not awarded fair and equitable treatment and full protection and security. 119 The Amicus curiae attempted to justify the termination of the contract. It claimed that ‘foreign corporations engaged in projects intimately related to human rights […] have the highest level of responsibility to meet their duties and obligations […].’ 120 It then explained that the investor breached its obligations arising from the contract, which resulted in significant risk to the health of the population. 121 It asserted that the state had to terminate the contract in order to be able to provide access to water to its citizens. 122 The line of argumentation leads to the conclusion that it was the investor, not the state, who was responsible for any loss incurred. 116 This argument can be only made if the submission indeed did not introduce any new information or arguments, but merely elaborated on what was claimed by the state. If amici curiae presented new infor- mation and arguments, the tribunal could consider them only in the arbitration where they were raised. 117 Biwater v Tanzania (n 44) [3]. 118 ibid [9]. 119 ibid [15] – [16].

120 ibid [380]. 121 ibid [377]. 122 ibid [387].

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