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Part I Commercial and Investment Mediation: Boundaries, Trends, and Outlook, 2 Mediation and the Settlement of International Investment Disputes: Between Utopia and Realism

Catharine Titi

From: Mediation in International Commercial and Investment Disputes

Edited By: Catharine Titi, Katia Fach Gómez

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 21 October 2020

Investor — Arbitration — Mediation

Investment cases settled through mediation represent only an inconsequential fragment of international investment disputes. But recent developments show that alternative dispute resolution (ADR) is gaining traction at a time when the traditional system of investor-state dispute settlement (ISDS) brims with critiques and efforts are made to reform it. Although investment treaties often make provision for amicable dispute settlement, including mediation, as a precondition to arbitration, the relevant clauses tend to impose waiting periods rather than an actual obligation to pursue dispute resolution in ADR. Numerous investment treaties do not give the parties’ advance consent to mediation. The chapter argues that investment mediation could be a helpful tool to resolve some investment disputes, although the role of advance consent in this context does not have the significance it has for arbitration. But the limitations of mediation must also be borne in mind. Where the relationship between the disputing parties has entirely disintegrated, mediation is unlikely to prove to be a workable solution, and can add to the costs and time necessary to settle the dispute. But there is a strong argument to be made in favour of encouraging mediation as a complimentary, non-binding option in investment treaties.

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