Investor–State Mediation and the Belt and Road Initiative: Examining the Conditions for Settlement

Abstract

ABSTRACT Despite the dominance of arbitration in the realm of investor-state disputes, the variety of proposals for reform suggest considerable stakeholder discontent with the current framework. One suggested reform is the introduction of investor–state mediation, which has been supported by the conclusion of the Singapore Convention on Mediation and the proposal by the International Centre for Settlement of Investment Disputes (ICSID) of a set of mediation rules. This article examines the respective merits of arbitration and mediation to settle investment disputes related to the Belt and Road Initiative. Many of the principles underpinning the implementation of the Belt and Road Initiative sit uncomfortably alongside an adversarial adjudicative mechanism, and access to arbitration is limited in some investment treaties. It is argued that, in some instances, mediation may be more attuned to the unique conditions of the Belt and Road Initiative. Stakeholders have done considerable work to enhance the legitimacy of mediation within the field of investor–state dispute settlement, but it remains dormant in practice and comparatively rare within investment treaties. While a mediated settlement will remain elusive in many instances, it can be encouraged by a series of reforms to treaty drafting, the internal organization of government departments, and the actions of foreign investors.