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Promoting Investor State Conciliation and Mediation: Lessons from Historic and Less Well-Known Treaty Practice
By studying the ICSID Convention, the earliest investment treaties as well as less well-known investment treaties, this article produces new insights and useful lessons on how to draft investor-State dispute settlement provisions that promote the use of mediation and conciliation to settle investor-State disputes. Treaty language originating in Israeli, Indian and Finnish investment treaties could provide guidance to drafters considering how to provide advance consent to mediation or conciliation that does not preclude an investor’s ability to arbitrate a dispute. Indian and UAE investment treaties demonstrate how subtle differences in wording could create a mandatory requirement to attempt mediation or conciliation before there may be recourse to arbitration, an optional requirement, or even obviate advance consent to arbitration. The failed attempt to conciliate the Vodafone v. India dispute illustrates the importance of providing advance consent to mediation or conciliation, and of specifying which mediation or conciliation rules will govern.
This working paper contains an executive summary (on page 3) and key policy recommendations (on pages 50-56).
The underlying dataset on which this research is based can be accessed here.