The case of Piero Foresti, Laura de Carli and others v Republic of South Africa (ICSID Case No ARB (AF)/07/1), concerns claims that South Africa's post-apartheid mining rights legislation amounted to expropriation. Following a petition filed by various non-parties for limited participation as non-disputing parties (NDPs), the tribunal, by way of a procedural order dated 5 October 2009, has notified the parties of its decision to allow the NDPs to participate in the proceedings in accordance with Arbitration (Additional Facility) Rule 41(3). (The Additional Facility was created in 1978 to extend ICSID arbitration to certain cases that fall outside the ICSID Convention, for example in proceedings where either the investor or host state is not a member of ICSID.) The tribunal has fixed the schedule for the NDPs' involvement in the case and has given directions for disclosure of documents to them, noting that:

The NDPs are to be allowed such access to the papers submitted by the parties as is necessary for the NDPs to focus their submissions on the issues arising and see the positions adopted by the parties on those issues. Given the novelty of the procedure, the tribunal will invite the parties and NDPs to give comments on the fairness and effectiveness of the procedures adopted after all submissions have been made.

The decision adds to the growing number of cases where the legitimate concerns of non-parties who are likely to be affected by the ultimate award have been allowed to make submissions to an ICSID tribunal or have access to certain documents despite the underlying principle of confidentiality of the arbitration process. For a further example, see Legal update, Amicus curiae brief under revised ICSID Rules: Biwater v Tanzania.