Mediation may be defined as a structured negotiation process assisted by a neutral person.1 While mediation and conciliation may be defined differently due to the role of the neutral, they are both assisted negotiations in essence and in practice the line between these two concepts may be blurred. Although ICSID has a set of conciliation rules and will soon have a set of mediation rules, in this note, the terms mediation and conciliation have been used as equivalents.
II. Overview of mediation in investor-State dispute settlement (ISDS)
In addition to numerous bilateral and multilateral7 investment treaties, the International Centre for Settlement of Investment Disputes (ICSID) Convention also authorizes conciliation.8
Belgium-Luxembourg Economic Union Model BIT 2019, Chapter IV: Art. 19, C. Mediation; The Netherlands Model BIT 2019, Art. 17.1, 18.1; Norway Model BIT (draft) 2015, Art. 14.2; Fan, K., Mediation of Investor–State Disputes: A Treaty Survey: Time to Take the Horses to the Trough?, Journal of Dispute Resolution, 2020.
III. Current situation in practice
In addition, some other investor-State disputes have been referred to mediation outside of the ICSID Conciliation Rules.12 There is not much information available relating to these cases. It is reported that these cases include mediation procedures conducted before arbitration, in parallel with arbitration and as an alternative to arbitration.13
At time of writing, there are several initiatives by intergovernmental, public and private institutions to promote and reform investor-State mediation. The United Nations Commission on International Trade Law (UNCITRAL) Working Group III (Investor-State Dispute Settlement Reform) is also exploring mediation as a method of resolving investor-State disputes.14 The adoption of the United Nations Convention on International Settlement Agreements Resulting from Mediation in 2019, known as the Singapore Convention, may also be viewed as an endorsement of mediation by a number of states.15
IV. Mediation rules
The Permanent Court of Arbitration (PCA) Optional Rules for Conciliation on Disputes Relating to Natural Resources and/or the Environment “reflect the public international law element” pertaining to disputes with States.17
The International Bar Association (IBA) Rules for Investor-State Mediation are “designed for the mediation of investment–related differences or disputes involving States and State entities”.
V. Mediation guidelines