International investment treaties offer critical infrastructure for globalization and are one of the backbones of larger dialogues related to the international political economy. As the treaties grant substantive and procedural rights, the capacity of international investors to directly access dispute resolution involving States has been a story of both success and discontent. Investment treaty arbitration, in particular, has been a source of polarization; and stakeholders are actively seeking alternatives to formalized adjudication before ad hoc tribunals. Mediation, in addition to other forms of alternative dispute resolution and conflict management, has become an increasingly vital part of the debate about the most effective and appropriate processes for resolving investment treaty conflict. Yet there has been little behavioral modeling about how to use mediation as a methodology for resolving investment treaty disputes. It is therefore constructive to offer a roadmap and explanation of the process in order to redress the informational vacuum that exists about the practical reality of dispute resolution options. In theory, some parties (particularly investors) may have greater familiarity with mediation protocols given the growth of mediation in international and domestic commercial law. However, it is critical for risk averse parties—including those investors and States that may have less experience with mediation procedures—to understand what mediation might entail, how it could function and the value that it can add, particularly in comparison to arbitration. This article therefore attempts to lower the barriers of entry to the mediation marketplace in two ways. First, it provides basic information related to mediation, its application in the investment treaty context, different models of mediation and an exploration of the functionality of potential mediation rules to provide an overall framework for the process. Second, in connection with Investor–State Mediation: A Simulation , it uses a mediation simulation to offer a window into one possible aspect of the mediation process; and it offers a deconstruction to permit stakeholders to imagine how an investor–State mediation (ISM) may begin to function and its relative value. As mediation's core value is its procedural flexibility, it is important to recognise that there will always be more than one way to conduct mediation. This article provides insights for at least one possible future involving the use of ISM.
Using Investor-State Mediation Rules to Promote Conflict Management,
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/965