{"id":8219,"date":"2020-12-19T07:38:42","date_gmt":"2020-12-19T13:38:42","guid":{"rendered":"https:\/\/cf.iisd.net\/itn\/?p=8219"},"modified":"2024-08-09T18:31:27","modified_gmt":"2024-08-09T16:31:27","slug":"uncitral-working-group-iii-pre-intersessional-meeting-on-the-use-of-mediation-in-isds","status":"publish","type":"post","link":"https:\/\/www.iisd.org\/itn\/2020\/12\/19\/uncitral-working-group-iii-pre-intersessional-meeting-on-the-use-of-mediation-in-isds\/","title":{"rendered":"UNCITRAL Working Group III pre-intersessional meeting on the use of mediation in ISDS"},"content":{"rendered":"

On November 9, 2020, the Asian Academy of International Law hosted a virtual event on the use of mediation in investor\u2013state dispute settlement. This event is one of several being organized by UNCITRAL<\/span> in parallel to the formal meetings of the Working Group III on investor\u2013state dispute settlement reform.<\/p>\n

Mediation refers to a process \u201cwhereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons (\u2018the mediator\u2019) lacking the authority to impose a solution upon the parties to the dispute.\u201d[1]<\/sup><\/a> The objective is for the mediator to assist the parties in reaching a mutually acceptable settlement that resolves their dispute. If the parties cannot reach an agreement, either party may then continue with efforts to resolve the dispute through some other process\u2014for example, investor\u2013state arbitration. Mediation is something of a \u201chot topic\u201d in international economic law at the moment: in 2016 the Secretariat of the Energy Charter adopted the Guidance on Investment Mediation;[2]<\/sup><\/a> in 2018 ICSID<\/span> commenced work on a new set of rules for investor\u2013state mediation;[3]<\/sup><\/a> in September 2020 the Singapore Convention on Mediation entered into force.[4]<\/sup><\/a> In the context of UNCITRAL Working Group III, both developed and developing states have supported greater use of mediation in investor\u2013state disputes.<\/p>\n

The event organized by the Asian Academy of International Law comprised more than 20 speakers spread over six hours, and supported by four lengthy background papers.[5]<\/sup><\/a> Despite the number of speakers, several common themes ran across the event. Speakers generally agreed that greater use of mediation in investor\u2013state disputes would be a good thing. Mediation was said to be quicker, cheaper, and more flexible than investor\u2013state arbitration. It was also said to allow investors and host states to keep \u201csensitive\u201d investor\u2013state disputes confidential, in contrast to the trend for increased transparency in investor\u2013state arbitration. Most importantly, mediation was said to be more likely to lead to \u201cwin\u2013win\u201d outcomes as compared to investor\u2013state arbitration.<\/p>\n

This positive account of mediation presents something of a paradox. There are only a handful of publicly known instances of investor\u2013state mediation. In contrast, there are now more than a thousand known cases of investor\u2013state arbitration. Why isn\u2019t investor\u2013state mediation used more widely?<\/p>\n

The answer, according to many of the speakers, is that there are several obstacles to greater use of investor\u2013state mediation, primarily obstacles to states\u2019 <\/em>ability and willingness to participate. These include:<\/p>\n