Mediation as a Mandatory Pre-condition to Arbitration

Alternative Dispute Resolution in Investor-State Dispute Settlement

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Mandatory investor-state mediation (ISM) as a pre-condition to arbitration is the way forward for rebalancing the investor-state dispute settlement (ISDS) regime and tackling its widely criticised shortcomings. Presenting a comprehensive doctrinal analysis of ISDS clauses of dozens of treaties, this book reveals that simply offering ISM in a voluntary format will not increase its utilisation.

In this volume, Ana Ubilava further debunks four common arguments and misconceptions against mandatory ISM through an innovative empirical analysis of over 600 investor-state arbitration cases. She also offers recommendations for incorporating mandatory ISM in ISDS as a precondition to arbitration aimed at international policymakers.

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Ana Ubilava, PhD, University of Sydney, teaches Public International Law at the Sydney Law School. She has published widely on the topic of investor-state dispute settlement with a focus on investor-state mediation.
Foreword

List of Figures and Tables

Abbreviations

1Introduction

2Mediation to Address Drawbacks of Domestic and International Commercial Arbitration
 2.1 Introduction

 2.2 Popularisation of Arbitration
 2.2.1 Early Days of Arbitration

 2.2.2 International Commercial Arbitration

 2.2.3 Court-Annexed Arbitration


 2.3 Spread of Mediation
 2.3.1 History of Mediation

 2.3.2 Court-Annexed Mediation

 2.3.3 Commercial Mediation

 2.3.4 International Commercial Mediation
 2.3.4.1 Enforcement as Contracts

 2.3.4.2 Enforcement as Court Orders or through Notaries

 2.3.4.3 Enforcement as Consent Arbitral Awards


 2.4 Conclusion


3Mediation to Address Drawbacks of Arbitration in the Investor-State Dispute Settlement Regime
 3.1 Introduction

 3.2 Investor-State Arbitration
 3.2.1 Promotion of Investor-State Arbitration

 3.2.2 Investor-State Arbitration Drawbacks
 3.2.2.1 Arbitration Costs

 3.2.2.2 Delays

 3.2.2.3 Legitimacy Crisis
 3.2.2.3.1 Unpredictable and Inconsistent Awards

 3.2.2.3.2 Lack of Transparency

 3.2.2.3.3 Constraints on Sovereignty and Allegations of ‘Regulatory Chill’


 3.2.3 Current  isds  Reform Proposals

 3.2.4 Summary


 3.3 Current Role of Investor-State Mediation
 3.3.1 Definition

 3.3.2 Benefits of Investor-State Mediation

 3.3.3 Promoting Mediation/Conciliation in  isds 
 3.3.3.1  iba

 3.3.3.2 International Investment Agreements

 3.3.3.3 Singapore Convention on Mediation

 3.3.3.4  icsid Mediation Rules


 3.4 Conclusion


4Underutilisation of  adr  in  isds  – A ‘Fork in The Road’?
 4.1 Introduction

 4.2 Formulation of isds Clauses and Problems with Interpretation
 4.2.1 The First Stage

 4.2.2 The Second Stage


 4.3 Choosing between Conciliation and Arbitration

 4.4 Possible Solutions
 4.4.1 Making changes to the Convention and Rules

 4.4.2 Making Changes to  iia  s


 4.5 Conclusion


5Empirical Analysis of the Validity of Arguments against Mandatory  ism 
 5.1 Introduction

 5.2 Previous Empirical Studies

 5.3 Data and Methodology

 5.4 Common Critiques of Investor-State Mediation – Findings and Discussion
 5.4.1 Would Mandatory Investor-State Mediation Be Futile because Amicable Dispute Settlement Mechanisms Are Unsuitable for Certain Types of Investor-State Disputes?
 5.4.1.1 Settling a Case Would Make a State Look Weak and Indicate an Admission of Guilt

 5.4.1.2 Difficulty Determining an Authority to Settle on Behalf of a State

 5.4.1.3 Shifting the Blame to an Arbitrator Rather than Being Accountable for Settlement Terms

 5.4.1.4 Mediation Not Suitable for Disputes with Non-Pecuniary Claims


 5.4.2 Would Mandatory Investor-State Mediation Contribute to Secret Outcomes because Amicable Settlements Impede Transparency?

 5.4.3 Would Mandatory Investor-State Mediation Be a Waste of Time Because Settlements Pay Less Compared to What Investors Are Awarded When They Win?

 5.4.4 Has the Non-enforceability of Settlement Agreements Been a Problem in Practice?


 5.5 Conclusion


6General Conclusions and Recommendations
 6.1 Three Key Findings

 6.2 Three Avenues for ism Reform
 6.2.1 Mandatory Mediation in Multi-Tier Dispute Resolution Clauses for New  iia  s
 6.2.1.1 The Unilaterally Mandatory Mediation Step

 6.2.1.2 Integrating Mandatory Mediation into the Existing Cooling-Off Periods

 6.2.1.3 Detailed Provisions for Mandatory Mediation Procedures

 6.2.1.4  mfn Clause with isds Carve-Out


 6.2.2 Amendments to  icsid  with Additional Mandatory Mediation Step for All Types of Investor-State Arbitration Cases

 6.2.3 Mauritius Convention Style Multilateral Treaty


Annexes

Bibliography

Index

Academics in international law and dispute resolution; state governments for policy implementation purposes; research students in international law and dispute resolution; practitioners in investor-state arbitration and mediation areas.
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