A Rethink of Investor-State Dispute Settlement
Kluwer Arbitration Blog 2013
5 Pages Posted: 3 Jun 2013
Date Written: May 30, 2013
The paper appraises the recent trends towards mediation in investor-state dispute settlement as arbitration is becoming increasingly more formalised as ‘liti-arbitration’ or ‘arbitral litigation’. This is based on several important recent ADR surverys in the USA, EU and Asia-Pacific. The paper points out the failure to understand the desirable style of mediation in such cases as there is a garden variety of mediation styles and very often little care is taken of their respective suitability by proposers while justifying their adoption. It is proposed here that an evaluative-facilitative mediation (EFM) in a structured and sequential manner will prove useful for investor-state disputes for various important reasons which are highlighted. It is also proposed that if mediation reaches an impasse, arbitration can be resorted to as a fallback (i.e. Med-Arb) with the same person as the mediator and arbitrator or a different person as the arbitrator as the parties might agree.
Keywords: Investor-state mediation, Investor-state arbitration, Med-Arb, International investment dispute settlement
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