Mediation in Future Investor–State Dispute Settlement

Abstract

Mediation is an intensely discussed topic as a possibly promising venue for investor–State dispute settlement (ISDS) and conflict prevention. Given that mediation can be used within ‘cooling-off’ (amicable settlement) periods in International Investment Agreements, this article takes stock of those as well as explicit mediation rules which are on the rise in new IIAs. It draws lessons from the small amount of known cases which went to mediation and presents business view on mediation. It also draws a list of common obstacles for business and states preventing the use of mediation in the investor–State context. Finally, this article attempts to map future work which could be useful in the context of UNCITRAL negotiations towards the reform of ISDS.