Hybrid Models of Arbitration and Mediation

Abstract

This paper examines current scholarship and policy developments to provide a comprehensive analysis of the use of mandatory mediation in investor-state dispute settlement (ISDS) and to evaluate various issues related to the potential use of different hybrid dispute resolution models for the solution of investor-state disputes. Initially, the paper examines the current investment treaty regime and investor-state arbitration jurisprudence in order to assess possibilities for the use of mediation. The paper then considers the use of mandatory mediation, and analyses potential issues and advantages of mandatory mediation. The paper then examines hybrid dispute resolution models such as Arb-Med-Arb and Med-Arb for ISDS, discussing the legal issues involved and how to address such problems. The last part of the paper discusses the role of shadow mediators, and arbitrator-facilitated settlement in solving investor-state disputes, and assesses how these models combine the strengths of both arbitration and mediation and address issues related to the impartiality of neutrals and enforceability of mediated settlements.