Part I Commercial and Investment Mediation: Boundaries, Trends, and Outlook, 4 Concurrent Co-Mediation: Toward a More Collaborative Centre of Gravity in Investor–State Dispute Resolution
Jack J. Coe
Edited By: Catharine Titi, Katia Fach Gómez
- Investor — Arbitration — Conciliation — Mediation
Tested by an avalanche of disputes, investment treaty arbitration has proved to be imperfect. Critics argue, with some justification, that the system relies on, and continues to produce, jurisprudence that is indeterminate, and that the arbitral mechanism in use is slow, expensive, and highly combative. Being a type of arbitration, moreover, it produces a winner and a corresponding loser; that potential for zero-sum outcomes poses risks to disputants on both sides and is particularly inappropriate for certain kinds of cases. Interest in reforming the prevailing investor-state disputes regime has led to consideration of third-party assisted non-arbitral problem-solving, and in particular mediation (conciliation). Most often, what is envisioned is the use of mediation as a process that supplements arbitration in some fashion. Examining a variation of the usual model, this chapter considers ‘concurrent (or ‘shadow’) mediation’, a methodology under which one or more third-party neutrals pursue collaborative problem-solving efforts that coincide, on a coordinated basis, with arbitration. The mediation element would be triggered by prompts in the investment treaty involved and supported by the rules available to the parties through an administering institution or otherwise. The discussion explores in particular a model that employs two mediators, rather than one, an approach variously referred to as ‘team mediation’ or ‘co-mediation’. The chapter concludes that the involvement of concurrent co-mediation would most likely add to settlement rates, and reduce overall costs to the disputants, while producing outcomes that are legitimate and durable.