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Mediation of Investor-State Disputes: Alternative Dispute Resolution for Alternative Dispute Resolution

The ongoing process of reform to the ICSID Rules has prompted renewed attention to the place of investor-state mediation. As envisioned by the Proposal for Amendment of the ICSID Rules, investor-state mediation is a voluntary, flexible, non-binding process that can be used in conjunction with or independent of an arbitration.

Mediation ensures party autonomy and aims at sustaining business relationships through settlement. It can be used pre-arbitration, parallel to arbitration (to resolve a specific issue or the whole case), or post-arbitration.

The addition of mediation rules suggests an attempt to lower costs and more efficiently achieve settlement through breaking up and capturing aspects of the dispute. It also suggests the possibility of staged proceedings that may be less adversarial.

The impetus for the ICSID Meditation Rules comes following the Draft Convention on International Settlement Agreements Resulting from Mediation and Draft Model Law adopted by UNCITRAL in June 2018 and the July 2016 adoption at the Energy Charter Conference of a Guide on Investment Mediation.

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