Other Alternative Dispute Resolution Mechanisms
In addition to the arbitration, conciliation and fact-finding procedures provided by the ICSID Convention and Rules, disputing parties may select other alternative dispute resolution mechanisms, such as early neutral evaluation, facilitated negotiation and/or mediation. Although these other alternative dispute resolution methods vary widely, they are generally non-binding and aim to assist parties in reaching an amicable settlement through voluntary agreement.
Many treaties and other instruments permit parties to settle investment disputes through other alternative dispute resolution mechanisms. The process may generally be commenced at any stage by agreement of the parties. Depending on the nature of a dispute, other alternative dispute resolution procedures have been found to foster the early exchange of information, clarify the issues at stake, and facilitate dialogue between parties. Such procedures may be stand-alone or even be undertaken in parallel with an ICSID arbitration. Any resulting amicable settlement during an arbitration proceeding could be incorporated into an award of the arbitral tribunal, pursuant to ICSID Arbitration Rule 43(2). As such, it would be final and binding and could be recognized and enforced in any ICSID Member State.
ICSID supports efforts by parties to resolve investment disputes through alternate mechanisms and offers its facilities and administrative services, including expert support from its staff to assist the parties throughout the process. For a more detailed overview on investor-State mediation, please click here.
For further information , see:
- ICSID Review—Foreign Investment Law Journal, Vol. 29, No. 1 – Special Focus Issue on Alternative Dispute Resolution in Investment Disputes (2014)
- Anna Joubin-Bret, and Barton Legum, A Set of Rules Dedicated to Investor-State Mediation; the IBA Investor-State Mediation Rules, pp. 17-24
- Susan D. Franck, Using Investor–State Mediation Rules to Promote Conflict Management: An Introductory Guide, pp. 66-89
- Fatma Khalifa, Mediation use in ISDS, Transnational Dispute Management, No. 1 (2014)
- Jeremy Lack, Michael Leathes, and Wolf Juergen von Kumberg, Enabling Early Settlement in Investor-State Arbitration - The Time to Introduce Mediation Has Come, pp. 133-141
- Frauke Nitschke, The IBA’s Investor–State Mediation Rules and the ICSID Dispute Settlement Framework, pp. 112-132
- Nancy Welsh and Andrea Kupfer Schneider, The Thoughtful Integration of Mediation into Bilateral Investment Treaty Arbitration, Harvard Negotiation Law Review, Vol. 18, p. 71 (2013)
- Nancy Welsh, Becoming “Investor-State Mediation”, Penn State Journal of Law & International Affairs, Vol. 1, No. 1, p. 86 (2012)
- Tai-Heng Cheng, International Mediation, Arbitration, and Innovation, Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2009 (A. Rovine ed.), Brill, p. 434 (2010)
- Jack J. Coe, Should Mediation of Investment Disputes Be Encourage; and If So, by Whom and How?, Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2009 (A. Rovine ed.), Brill, pp. 339-357 (2010)
- Edna Sussman, Investor State Dispute Mediation: The Benefits and Obstacles, Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2009 (A. Rovine ed.), Brill, pp. 323-338 (2010)
Jeswald W. Salacuse, Is There A Better Way? Alternative Methods of Treaty-Based, Investor-State Dispute Resolution, Transnational Dispute Management, No. 1 (2009)
- Tore Wiwen-Nilsson, Conciliation: Enforcement of Settlement Agreements, Transnational Dispute Management, No. 1 (2009)
- Stephen M. Schwebel, Is Mediation of Foreign Investment Disputes Plausible?, ICSID Review—Foreign Investment Law Journal, Vol. 22, No. 2, pp. 237-241 (2007)
- Ucheora Onwuamaegbu, The Role of ADR in Investor-State Dispute Settlement: The ICSID Experience, News from ICSID, Vol. 22, No. 2, p. 12 (2005)
Noah D. Rubins, Use of Mediation for Investment Disputes, Transnational Dispute Management, No. 1 (2004)