The modern world faces a continuous proliferation of investor-state disputes and has to provide adequate means for meeting the demands of time and cost efficient investment dispute resolution. Despite the fact that the majority of investor-state agreements offer the parties the possibility to resort to negotiation, mediation or conciliation to resolve their controversy, parties seldom use such opportunities to their full potential.

Although the ICSID Convention provides in Chapter III the basic procedural framework for conciliation of investment disputes, ICSID conciliation services have only been used in seven cases between 1966 and the present day. Arbitration still remains the leading method of dispute resolution between states and foreign investors, notwithstanding the recent criticism of its multiple shortcomings, including concerns regarding the high costs associated with the arbitration process.

As a step to promote the use of conciliation in investment dispute resolution, ICSID announced on 15 September 2011 a new list of Chairman’s designations to the ICSID Panels of Conciliators and Arbitrators. According to the ICSID News Release, this was the first time separate lists had been issued for the designees to the Panel of Conciliators and the Panel of Arbitrators. Thereby, ICSID responded to requests from its users about the possibilities for resolving investment disputes through various means, including arbitration and conciliation, and clearly differentiated skills necessary for experts in arbitration and conciliation.

Another major step in enhancing the use of mediation in the investor-state arena was the creation of the first specifically-tailored Rules for Investor-State Mediation (Rules), drafted by the State Mediation Subcommittee of the International Bar Association (IBA) and adopted by a resolution of the IBA Council on 4 October 2012.

Jan-Mar 2013 issue

Association for International Arbitration (AIA)