Perspectives on Investor-State Mediation: Video Series

ICSID has been active in several ways to support the development of investor-State mediation. In 2018, for example, ICSID began developing a new set of procedural rules for mediation. The most recent draft of the ICSID Mediation Rules is published in Working Paper # 2: Proposals for Amendment of the ICSID Rules. ICSID also makes its global facilities available for investment mediations, and has organized numerous events and training courses on the subject. This work has been highly collaborative: ICSID has received input from a wide range of States and legal professionals on its draft Mediation Rules, and has forged strong partnerships for the development of courses and events.   

In this spirit of cooperation and knowledge sharing, members of the ICSID Secretariat recently sat down with a number of experts to seek their perspectives on investor-State mediation. The goal was to exchange practical advice and experience on the subject. 

To begin, Anna Joubin-Bret focused on key considerations for States with respect to mediation. Ms. Joubin-Bret also touched on frameworks and processes that are important for States and investors to account for when assessing mediation as a dispute settlement option.

 


Mediation is adaptable to the needs of the parties and the nature specific circumstances of surrounding the dispute. Nonetheless, there are common steps phases in an investor-State mediation. Karl Mackie highlighted the key stages in an investor-State mediation procedure.

 


Building on the theme of what makes for a successful mediation, Wolf von Kumberg pinpointed the key process-related considerations. These include addressing questions of authority and confidentiality, as well as choosing the right venue. 

 


Based on her empirical research, Lucy Reed concluded that there is potential to reach more amicable settlements in investment disputes. She highlighted some of the main obstacles to settlement in investor-State disputes, as well as the role mediation could play to help parties reach an amicable resolution of their dispute.

 


In a second interview, Mr. Kumberg noted that while mediation is common in commercial disputes, it is at an earlier stage of development in the investor-State context. He discussed ways in which mediation could be nurtured and encouraged, particularly from the perspective of foreign investors.

 


The parties to mediation may typically choose to appoint one mediator or two co-mediators by agreement. Mr. Mackie explained the concept of co-mediation, in which two mediators seek to help parties settle their dispute.


 


Cultural competence plays a significant role in the context of amicable settlement of international disputes. James South set out three reasons why this skill-set is so important in the context of investor-State mediation.

 


Finally, Mr. Kumberg explored why ethics are critical to the credibility of, and trust in, investor-State mediation.