Investor-State Mediation: Is There A Future?

Abstract

Seen from a historical standpoint, the emergence of bilateral investment treaties (BITs) and investor-State arbitration can essentially be understood and described as a reaction to the procedural uncertainties of diplomatic protection in customary international law and the uncertainties of its material standards. The author's thesis regarding the role of the home State is however that the elevation of the investor and the possibility of an investor-State arbitral procedure on the basis of BITs not only juridifies, denationalizes, and depoliticizes investment disputes, it can also result in the enhancement of diplomatic protection, particularly leading up to a potential court case. In summary, it is fair to say that the efforts of the home State to arrive at a settlement in investment disputes should not be understood as being an alternative to other forms of dispute settlement - arbitration and negotiated settlement - but as complementing them.Keywords: bilateral investment treaties (BITs); international law; investor-State arbitration