Overview

Mandatory investor-state mediation (ISM) as a pre-condition to arbitration is the way forward for rebalancing the investor-state dispute settlement (ISDS) regime and tackling its widely criticised shortcomings. Presenting a comprehensive doctrinal analysis of ISDS clauses of dozens of treaties, this book reveals that simply offering ISM in a voluntary format will not increase its utilisation. In this volume, Ana Ubilava further debunks four common arguments and misconceptions against mandatory ISM through an innovative empirical analysis of over 600 investor-state arbitration cases. She also offers recommendations for incorporating mandatory ISM in ISDS as a precondition to arbitration aimed at international policymakers.

Full Product Details

Author:   Ana Ubilava
Publisher:   Brill
Imprint:   Martinus Nijhoff
Volume:   21
Weight:   0.580kg
ISBN:  

9789004532533

ISBN 10:   9004532536
Pages:   256
Publication Date:   17 November 2022
Audience:   Professional and scholarly ,  Professional & Vocational
Format:   Hardback
Publisher's Status:   Active
Availability:   Available To Order  
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Table of Contents

Foreword List of Figures and Tables Abbreviations 1 Introduction 2 Mediation to Address Drawbacks of Domestic and International Commercial Arbitration  2.1 Introduction  2.2 Popularisation of Arbitration  2.2.1 Early Days of Arbitration  2.2.2 International Commercial Arbitration  2.2.3 Court-Annexed Arbitration  2.3 Spread of Mediation  2.3.1 History of Mediation  2.3.2 Court-Annexed Mediation  2.3.3 Commercial Mediation  2.3.4 International Commercial Mediation  2.3.4.1 Enforcement as Contracts  2.3.4.2 Enforcement as Court Orders or through Notaries  2.3.4.3 Enforcement as Consent Arbitral Awards  2.4 Conclusion 3 Mediation to Address Drawbacks of Arbitration in the Investor-State Dispute Settlement Regime  3.1 Introduction  3.2 Investor-State Arbitration  3.2.1 Promotion of Investor-State Arbitration  3.2.2 Investor-State Arbitration Drawbacks  3.2.2.1 Arbitration Costs  3.2.2.2 Delays  3.2.2.3 Legitimacy Crisis  3.2.2.3.1 Unpredictable and Inconsistent Awards  3.2.2.3.2 Lack of Transparency  3.2.2.3.3 Constraints on Sovereignty and Allegations of ‘Regulatory Chill’  3.2.3 Current isds Reform Proposals  3.2.4 Summary  3.3 Current Role of Investor-State Mediation  3.3.1 Definition  3.3.2 Benefits of Investor-State Mediation  3.3.3 Promoting Mediation/Conciliation in isds  3.3.3.1 iba  3.3.3.2 International Investment Agreements  3.3.3.3 Singapore Convention on Mediation  3.3.3.4 icsid Mediation Rules  3.4 Conclusion 4 Underutilisation of adr in isds – A ‘Fork in The Road’?  4.1 Introduction  4.2 Formulation of isds Clauses and Problems with Interpretation  4.2.1 The First Stage  4.2.2 The Second Stage  4.3 Choosing between Conciliation and Arbitration  4.4 Possible Solutions  4.4.1 Making changes to the Convention and Rules  4.4.2 Making Changes to iia s  4.5 Conclusion 5 Empirical Analysis of the Validity of Arguments against Mandatory ism  5.1 Introduction  5.2 Previous Empirical Studies  5.3 Data and Methodology  5.4 Common Critiques of Investor-State Mediation – Findings and Discussion  5.4.1 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 Guilt  5.4.1.2 Difficulty Determining an Authority to Settle on Behalf of a State  5.4.1.3 Shifting the Blame to an Arbitrator Rather than Being Accountable for Settlement Terms  5.4.1.4 Mediation Not Suitable for Disputes with Non-Pecuniary Claims  5.4.2 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 Conclusion 6 General Conclusions and Recommendations  6.1 Three Key Findings  6.2 Three Avenues for ism Reform  6.2.1 Mandatory Mediation in Multi-Tier Dispute Resolution Clauses for New iia s  6.2.1.1 The Unilaterally Mandatory Mediation Step  6.2.1.2 Integrating Mandatory Mediation into the Existing Cooling-Off Periods  6.2.1.3 Detailed Provisions for Mandatory Mediation Procedures  6.2.1.4 mfn Clause with isds Carve-Out  6.2.2 Amendments to icsid with Additional Mandatory Mediation Step for All Types of Investor-State Arbitration Cases  6.2.3 Mauritius Convention Style Multilateral Treaty Annexes Bibliography Index

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Author Information

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.

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