Mediation as an Alternative Method to Settle Investor-State Disputes

• Autores: Herman Verbist
• Localización: Handbook of International Investment Law and Policy / Julien Chaisse (aut.), Leïla Choukroune (aut.), Sufian Jusoh (aut.), 2021, ISBN 9811336148, págs. 759-786
• Idioma: inglés
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• Resumen

  • In the context of investor-State disputes, there is typically a public interest. Investors, the State, and civil society have different interests, but to some extent also have shared interests. For the resolution of an investment dispute to the satisfaction of both the investor, the State and the civil society, mediation offers an ideal tool in order to find the shared interests that may lead to an amicable settlement of the dispute. A legal framework is important, since only the Law can, for example, give certain capacities such as defining competence, determining responsibilities, assessing the urgency of procuring professional services or negotiating while representing the State. Given that mediation is generally considered to be a confidential dispute settlement process, and given that investment disputes have a public interest, a framework must be sought in order to meet the concerns of civil society also in mediation with special techniques for reduced confidentiality. This chapter first provides data available on investor-State disputes submitted to mediation. It thereupon describes the work done by UNCITRAL, ICSID, the Energy Charter Secretariat as well as the IBA in order to promote mediation in investor-State disputes. It examines the current obstacles to the use of mediation as a method to settle investor-State disputes, explores initiatives taken by some States and explains how mediation can become successful by including civil society.