International Investment Mediation as a Way forward Towards Win-Win Outcome in Investor-State Dispute Settlement
5 Asset Kussaiyn
Department of International Law - Law School - China University of Political Science and Law
Abstract
Investor-State Dispute Settlement has been on the spotlight where investors have a chance for redress from the governments that violate their contractual and investment rights. The current existing framework of investment protection mostly relies on international arbitration, which is a consensual and private dispute resolution process providing neutral, binding, confidential, and flexible proceedings with a final decision called an award that is enforceable in countries that are signatories to the New York Convention and ICSID Convention. Until recently, it was believed that arbitration was one the best options to resolve investment disputes, but it became the victim of its own success. The world of dispute resolution is promptly developing, annually introducing new concepts. The research made by Pia Eberhardt and Cecilia Olivet finds that legal and arbitration costs average over US$8 million per investor-state dispute, exceeding US$30 million in some cases. Elite law firms charge as much as US$1,000 per hour, per lawyer – with whole teams handling cases. Arbitrators also earn respectable salaries, amounting up to almost US$1 million in one reported case. Industry insiders estimate that more than 80% of all legal costs in arbitration are spent on counsel. Arbitration has become more complicated and expensive, where the process nowadays is far from being speedy and efficient. To address the issue, and diversify the process of dispute settlement, on December 18, 2018, the General Assembly of the United Nation adopted the United Nations Convention on International Settlement Agreements Resulting from Mediation. Mediation is a process of dispute resolution facilitated by a third person named mediator, who advices parties to come to a settlement. It was coined as the Singapore Convention since it was opened for signature on August 7, 2019 in Singapore. The new development is aimed to alter the dispute resolution process, bolstering the use of mediation in cross-border dispute resolution. This research paper explores existing dispute resolution mechanisms with the main focus on mediation, and its advantages that makes it one the most efficient mechanisms in Investor-State Dispute Settlement. It does so by examining existing cases where the mediation played a crucial role in effectively reconciling differences among parties. It concludes by arguing that mediation can be more efficient and less costly for investors and states during the process of dispute resolution since it tends to preserve commercial and investment relationships by assuming a win-win outcome.
Keywords
"Investor-State Dispute Settlement", "ADR", "International Arbitration", "International Mediation", "Bilateral Investment Treaties"
