On Thursday June 15, 2017, ICSID, in conjunction with the American University Washington College of Law Center on International Commercial Arbitration, hosted a half-day event at ICSID's Headquarters entitled "Investor-State Mediation:  Perspectives from States, Mediators & Practitioners."  The event, comprising three panels discussing different aspects of the use and potential of mediation in investor-state dispute settlement, was attended by around one hundred people.

Following opening remarks given by Meg Kinnear, ICSID's Secretary-General, the first panel, (comprising Claudia Frutos‐Peterson (a partner at Curtis, Mallet‐Prevost, Colt & Mosle LLP in Washington, D.C.), Eloïse Obadia (a partner at Derains & Gharavi in Washington, D.C.), Carlos Valderrama (a counsel at Sidley Austin LLP in Washington D.C. and former President of the Peru Investment Disputes Inter‐Agency Special Commission), and Luis Guillermo Vélez (General Director of the National Agency for the Legal Defense of the State, Bogotá, Colombia), moderated by Anna Joubin-Bret (an international investment lawyer and the principal of Cabinet Joubin-Bret, Paris), addressed investor-state dispute resolution from the state perspective.

The panelists on the first panel highlighted the sophisticated systems in place in some states,  designed to enable the state to facilitate the investment process, resolve disputes with investors using amicable means before they escalate, and to ensure a centralized management of disputes that have escalated.  Specifically, Mr. Valderrama explained the mechanisms in place in Peru, with Mr. Vélez detailing the system operating in Colombia.  Ms. Frutos-Peterson discussed some of the tools available to states seeking to try to emulate such an approach.  Finally, some of the nuances of representing a state from the perspective of an external international counsel were highlighted by Ms. Obadia.

The mediator's perspective with respect to mediating disputes involving a public entity was the topic discussed by the second paneI.  Moderated by American University Washington College of Law's Hernando Otero, the panel comprised mediators Mark E. Appel (ArbDB Chambers, London), Harold Himmelman (JAMS, Washington, D.C.), Jonathan B. Marks (Marks ADR, Bethesda, MD), and James South (CEDR, London).

These experienced mediators emphasized the need for the procedures governing, and engagement during, a mediation with a state entity to be designed and undertaken with a view to understanding and overcoming barriers to settlement often encountered in disputes involving a public entity.  The importance of early identification of relevant and appropriately authorized party-representatives was also emphasized, as was the need to start the mediation with the process of authorization of a final settlement agreement in mind, to ensure an ultimately enforceable settlement agreement.

The final panel was moderated by ICSID's Frauke Nitschke, and comprised Anna Joubin Bret, Alejandro Carballo Leyda (General Counsel of the International Energy Charter, Brussels), Wolf von Kumberg (mediator and arbitrator, ArbDB Chambers, London), and Lucy Reed (Director of the Centre for International Law, National University of Singapore). This panel addressed the current state of investor‐state mediation as well as the challenges currently faced in the investor‐state mediation context.

Notable aspects of the discussion included the presentation of survey results delving into the specific obstacles to the settlement of investor-state disputes.  This data suggested that the most significant obstacle to settlement is a desire to avoid being seen as voluntarily accepting the responsibility for a potential liability (versus having an external third party impose that liability).  The importance of a freestanding framework to support investor-state mediation (including through the development of, for example, the IBA Rules of Investor-State Mediation), the supporting role to be played by institutions such as ICSID, and the ongoing need to raise awareness of mediation and invest in the education of mediators, were also highlighted.  Finally, an interactive exercise with the audience revealed a generally favorable view regarding the future use and overall potential mediation to resolve investor-state disputes.

This event came at the tail-end of a three-day mediator training course tailored for investor-state disputes, designed jointly by ICSID, the Centre for Effective Dispute Resolution (CEDR), the International Mediation Institute (IMI) and the International Energy Charter.  That course, also delivered at ICSID's facilities, took place over June 12-14, 2017 (see here for more details).

Panelists at the Investor-State Mediation:  Perspectives from States, Mediators & Practitioners
Conference, June 15, 2017, Washington, D.C.