Faithful Friend and Flattering Foe: How Investment Treaties Both Facilitate and Discourage Investor-State Mediation

Abstract

There have been a variety of ambitious legislative, regulatory, and capacity-building initiatives to promote investor-state mediation. The prospects for greater uptake are shaped at the most basic level by the dispute resolution provisions in investment treaties. This article reports on a survey of dispute resolution provisions relevant to mediation in all available investment treaties with East, South, and Southeast Asian state parties that came into force over the past decade. These treaties promote, regulate, and compel mediation to varying degrees in different ways. A comparison of the provisions offers insights on how mediation is emerging in modern investment treaty practice and how dispute resolution provisions in treaties can facilitate or discourage mediation by their terms. Drawing on the study and outside empirical research, the article concludes with ideas about how investor-state mediation can be encouraged in treaties.

Keywords: isds, mediation, investor-state mediation, investor-state arbitration, isds reform

JEL Classification: k49, k40, k4, k33, k22, k41, k20, k10