Mediation as a Mandatory Pre-condition to Arbitration

Ana Ubilava, PhD, University of Sydney, teaches Public International Law at the Sydney Law School. She has published widely on the topic of investor-state dispute settlement with a focus on investor-state mediation.

• ForewordList of Figures and TablesAbbreviations1 Introduction2 Mediation to Address Drawbacks of Domestic and International Commercial Arbitration2.1 Introduction2.2 Popularisation of Arbitration2.2.1 Early Days of Arbitration2.2.2 International Commercial Arbitration2.2.3 Court-Annexed Arbitration2.3 Spread of Mediation2.3.1 History of Mediation2.3.2 Court-Annexed Mediation2.3.3 Commercial Mediation2.3.4 International Commercial Mediation2.3.4.1 Enforcement as Contracts2.3.4.2 Enforcement as Court Orders or through Notaries2.3.4.3 Enforcement as Consent Arbitral Awards2.4 Conclusion3 Mediation to Address Drawbacks of Arbitration in the Investor-State Dispute Settlement Regime3.1 Introduction3.2 Investor-State Arbitration3.2.1 Promotion of Investor-State Arbitration3.2.2 Investor-State Arbitration Drawbacks3.2.2.1 Arbitration Costs3.2.2.2 Delays3.2.2.3 Legitimacy Crisis3.2.2.3.1 Unpredictable and Inconsistent Awards3.2.2.3.2 Lack of Transparency3.2.2.3.3 Constraints on Sovereignty and Allegations of ‘Regulatory Chill’3.2.3 Current isds Reform Proposals3.2.4 Summary3.3 Current Role of Investor-State Mediation3.3.1 Definition3.3.2 Benefits of Investor-State Mediation3.3.3 Promoting Mediation/Conciliation in isds3.3.3.1 iba3.3.3.2 International Investment Agreements3.3.3.3 Singapore Convention on Mediation3.3.3.4 icsid Mediation Rules3.4 Conclusion4 Underutilisation of adr in isds – A ‘Fork in The Road’?4.1 Introduction4.2 Formulation of isds Clauses and Problems with Interpretation4.2.1 The First Stage4.2.2 The Second Stage4.3 Choosing between Conciliation and Arbitration4.4 Possible Solutions4.4.1 Making changes to the Convention and Rules4.4.2 Making Changes to iia s4.5 Conclusion5 Empirical Analysis of the Validity of Arguments against Mandatory ism5.1 Introduction5.2 Previous Empirical Studies5.3 Data and Methodology5.4 Common Critiques of Investor-State Mediation – Findings and Discussion5.4.1 Would Mandatory Investor-State Mediation Be Futile because Amicable Dispute Settlement Mechanisms Are Unsuitable for Certain Types of Investor-State Disputes?5.4.1.1 Settling a Case Would Make a State Look Weak and Indicate an Admission of Guilt5.4.1.2 Difficulty Determining an Authority to Settle on Behalf of a State5.4.1.3 Shifting the Blame to an Arbitrator Rather than Being Accountable for Settlement Terms5.4.1.4 Mediation Not Suitable for Disputes with Non-Pecuniary Claims5.4.2 Would Mandatory Investor-State Mediation Contribute to Secret Outcomes because Amicable Settlements Impede Transparency?5.4.3 Would Mandatory Investor-State Mediation Be a Waste of Time Because Settlements Pay Less Compared to What Investors Are Awarded When They Win?5.4.4 Has the Non-enforceability of Settlement Agreements Been a Problem in Practice?5.5 Conclusion6 General Conclusions and Recommendations6.1 Three Key Findings6.2 Three Avenues for ism Reform6.2.1 Mandatory Mediation in Multi-Tier Dispute Resolution Clauses for New iia s6.2.1.1 The Unilaterally Mandatory Mediation Step6.2.1.2 Integrating Mandatory Mediation into the Existing Cooling-Off Periods6.2.1.3 Detailed Provisions for Mandatory Mediation Procedures6.2.1.4 mfn Clause with isds Carve-Out6.2.2 Amendments to icsid with Additional Mandatory Mediation Step for All Types of Investor-State Arbitration Cases6.2.3 Mauritius Convention Style Multilateral TreatyAnnexesBibliographyIndex