Investor-state disputes are constantly changing, as are the ways they are being resolved. While arbitration is well known in the area of investor-state disputes, mediation is also beginning to gain ground as a potential choice for some investors.
In September, the International Mediation Institute (IMI) published a comprehensive set of Competency Criteria for Investor-State Mediators, aiming to assist users and providers of dispute resolution services in selecting suitable mediators for disputes between private sector entities and states.
In a press release issued by IMI, mediation was described as presenting a “credible and compelling option for both investors and states seeking to settle disagreements and disputes arising from (or to engage in constructive dialogue processes regarding) investment activities”. While also presenting “an important space and means for introducing non-juridic talent into the dispute resolution process”.
According to IMI, this is being increasingly recognised by international institutions such as the Energy Charter Conference Secretariat, which has worked with IMI to implement a Mediation Guide to the disputes provisions of the Treaty. Although a pool of investor-state arbitrators has developed over the recent years, and despite mediation gaining momentum in resolving international disputes – there is currently no readily available pool of accredited or identifiable investor-state mediators from which parties can choose.
This launch follows consultation and a series of deliberations over the past few years. The Investor-State Mediation Task Force of the IMI Independent Standards Commission (ISC) which created the criteria, consists of thought leaders in the investor-state dispute settlement field representing stakeholders. These included experienced in-house counsel, academics, government officers and professional practitioners and advisers, who had direct and supportive input into the development of the criteria.
The criteria will be piloted by relevant organisations and practitioners who will work with the task force to promote the use of mediation in investor-state disputes and negotiations with the help of the newly developed criteria.