New papers released today by the International Centre for Settlement of Investment Disputes (ICSID) offer a comprehensive guide to the fast-developing field of international investment mediation, as well as insights into how States are incorporating mediation in their investment treaties.
Both papers respond to heightened interest amongst States and investors in mediation as a means to settle disagreements that arise in the context of cross-border investments.
ICSID’s Background Paper on Investment Mediation serves as a step-by-step introduction to the role of mediation in resolving investment disputes, how the mediation process works in practice, and the key ways that participants—States, investors and mediators—can set themselves up for successful outcomes.
Specific questions addressed in the paper include:
- When could mediation be used during an investment lifecycle?
- What factors should parties consider when assessing the suitability of mediation?
- How does ICSID mediation differ from ICSID conciliation?
- What role does a mediator play—and what qualifications are important?
- What roles and duties do States and investors have in a mediation?
The background paper also highlights ICSID’s newly drafted rules for investor-State mediation, as well as the services provided by ICSID to support parties throughout the mediation process.
ICSID has developed the first institutional mediation rules that are designed specifically for international investment disputes. The ICSID mediation rules are universally available to States, regional economic integration organizations (such as the European Union) and investors based on the consent of the parties. Parties may also opt out of the procedure at any point.
ICSID provides the same comprehensive suite of services in mediation as it is known for in arbitration and conciliation proceedings. This includes assistance in identifying qualified mediators, access to first-class meeting facilities around the world, and cutting-edge technology for virtual communication amongst the participants. A dedicated ICSID legal counsel is assigned to each mediation, providing expert support.
“For a number of years ICSID has provided specialized training courses on investment mediation for both mediators and government officials, and demand has consistently grown year-on-year,” said Meg Kinnear, ICSID’s Secretary-General. “There is clearly immense interest in gaining practical understanding and expertise in applying mediation to investment disputes, and our background paper is an important step in meeting that need.”
Also published today is ICSID’s Overview of Investment Treaty Clauses on Mediation. The paper draws on an extensive survey of existing dispute resolution clauses in bilateral investment treaties, free trade agreements, and dispute settlement provisions in model treaties.
By analyzing all known clauses that provide for mediation in some form—nearly 350 in total—the paper captures the full range of approaches to integrating mediation in investment treaties. It is intended as a resource for governments considering mediation as a dispute-resolution option in future investment treaties and contracts.
For further information on ICSID’s mediation services and rules, please visit https://icsid.worldbank.org/services/mediation-conciliation/mediation/overview or contact us at [email protected].