Overview of a Mediation - ICSID Mediation (2022)
ICSID introduced mediation rules specifically designed for investment-related disputes in 2022.
Mediation is a voluntary process in which an independent and impartial third party assists disputing parties to amicably resolve all or parts of their dispute. It is an efficient and cost-effective process that aims to identify mutually acceptable solutions for both parties. For further information regarding investment mediation, see ICSID’s Background Paper on Investment Mediation.
The ICSID mediation rules may be applied to disputes that relate to an investment, involve a State or a regional economic integration organization (REIO), and which the parties consent in writing to submit to ICSID (Mediation Rule 2(1)). The ICSID mediation rules therefore offer broad access to mediation with States, State entities or REIOs relating to an investment.
Two distinct features of the scope of the mediation rules are noteworthy: i) there is no nationality requirement for parties, and therefore ICSID mediations may involve investors and nationals of the State party to the dispute; and ii) there is no requirement for either party to be linked to an ICSID Convention Member State.
The written agreement to mediate could be in a contract or another ad hoc agreement providing for ICSID mediation. It could also be based on mediation provisions in a bilateral or multilateral investment treaty or in an investment law providing access to ICSID mediation, coupled with an acceptance of these by the other party to the mediation. Consent to ICSID mediation does not have to be perfected before a Request for mediation is filed: a party may file a Request for mediation that contains an offer to mediate that ICSID then transmits to the other party (see How to File a Request for Mediation).
The ICSID mediation process may be visualized as follows:
An ICSID mediation is governed by:
The ICSID Mediation Rules
The ICSID Mediation Rules explain how to institute a mediation, including the contents of the Request for mediation, and how the process is conducted.
The ICSID Mediation Administrative and Financial Regulations
The Mediation Administrative and Financial Regulations contain provisions concerning:
- the costs of the proceeding (Regulations 6 to 8)
- publication of mediation-related information by ICSID with consent of the parties (Regulation 3)
- functions with respect to a mediation, including Secretariat services (Regulations 9 and 11)
- limitation of liability and prohibition of testimony (Regulation 13)
- languages (Regulation 12).