Conciliation and Mediation in Investor-State Dispute Settlement Provisions

• Romesh Weeramantry, Brian Chang and Joel Sherard-Chow

• 2021

   

  This article sets out the results of an extensive review of conciliation and/or mediation in investor-State dispute settlement (ISDS) provisions contained in international investment agreements (IIAs). Out of 3815 IIAs that were initially screened, 2674 (i.e. 70%) do not refer to such provisions. The research also revealed the number of IIAs signed each year with investor-State conciliation provisions have significantly decreased and, in contrast, IIAs signed with investor-State mediation provisions are on the increase. The screening found 1125 IIAs that contain investor-State conciliation provisions, of which 806 (i.e. 71.6%) provide advance consent to conciliation. In comparison, of the 53 IIAs found with investor-State mediation provisions, only 7 (i.e. 13.2%) offer advance consent to mediation. Advance consent to “conciliation or arbitration” was identified in 703 IIAs. The authors outline arguments to show that the disjunctive “or” in these provisions does not give rise to a fork-in-the-road that precludes a right to arbitration if the investor first initiates conciliation proceedings. Only 7 IIAs were found to require conciliation and/or mediation as a mandatory pre-condition to arbitration. The article concludes with recommendations to increase the use of investor-State conciliation and mediation provisions in future IIAs and also to improve the quality of those provisions.

   

  The final version of this article has been published in ICSID Review and can be accessed here.

  The underlying dataset can be accessed here.

  Our key policy recommendations can be accessed here.

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