Alternative Resolution to Investor-State Arbitration-Applying Mediation and Its Prospects
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This paper brings attention to the recent extensive discussions and proposed institutional rules about the use of mediation in the investor-state dispute. It addresses problems of existing arbitration regime and advantages of use of mediation in investor-state mediation for the more efficient resolution of international investment disputes. Investor-State Dispute Settlement (ISDS) is not suitable for the international investment regime of sovereign countries cases, and Mediation can be attractive when it is used in investment disputes because it is quicker in process, less expensive and preserves longer business relationship between the parties. Mediation also can encourage investors and states to develop trust each other and share important information so that both can meet their interests and needs. ICSID, IBA and UNCITRAL are actively advocating for the increased use of mediation to supplement investor-state arbitration. Initiatives and Rules developed by IBA Rules for Investor-State Mediation, ICSID and UNCITRAL Working Groups show clear merits of mediation as one alternative to investor-state dispute settlements. Even though enforceability issue is still in debate such as in upcoming EU-China BIT, necessity of incorporation of mediation will be more emphasized. As a result, mediation will be used as a complementary tool within the investment system, creating a practical alternative system. Korean government needs to consider mediation as an alternative dispute resolution mechanism and it will surely decrease damage when Korean government face foreign investor-brought ISDS. Problems still remain that whether parties will likely to self-regulate their disputes in the given rules, and whether transparency and standards to ensure the quality of investor-state mediators will be resolved. In the end, however, the real solution to fix the flaws in ISDS lies in finding innovative remedies to the problems.
Abstract
This paper brings attention to the recent extensive discussions and proposed institutional rules about the use of mediation in the investor-state dispute. It addresses problems of existing arbitration regime and advantages of use of mediation in investor-state mediation for the more efficient resolution of international investment disputes. Investor-State Dispute Settlement (ISDS) is not suitable for the international investment regime of sovereign countries cases, and Mediation can be attractive when it is used in investment disputes because it is quicker in process, less expensive and preserves longer business relationship between the parties. Mediation also can encourage investors and states to develop trust each other and share important information so that both can meet their interests and needs. ICSID, IBA and UNCITRAL are actively advocating for the increased use of mediation to supplement investor-state arbitration. Initiatives and Rules developed by IBA Rules for Investor-State Mediation, ICSID and UNCITRAL Working Groups show clear merits of mediation as one alternative to investor-state dispute settlements. Even though enforceability issue is still in debate such as in upcoming EU-China BIT, necessity of incorporation of mediation will be more emphasized. As a result, mediation will be used as a complementary tool within the investment system, creating a practical alternative system. Korean government needs to consider mediation as an alternative dispute resolution mechanism and it will surely decrease damage when Korean government face foreign investor-brought ISDS. Problems still remain that whether parties will likely to self-regulate their disputes in the given rules, and whether transparency and standards to ensure the quality of investor-state mediators will be resolved. In the end, however, the real solution to fix the flaws in ISDS lies in finding innovative remedies to the problems.
참고문헌 (30)
- 동아일보, "정부 ISD 첫 패소 확정...론스타 5조원, 엘리엇 1조원 산넘어산", ~ (2019)
- 법무부, "Easy Understandable ISD Cases", ~ (2019)
- 이재민, "국제 조정을 통한 합의서 집행협약(“싱가포르 협약”)", 서울국제법연구, 26(1), pp.101~112 (2019), 서울국제법연구원[DOI]
- Christina G. Hiorureas, "The Singapore Convention on International Settlement Agreements Resulting From Mediation: A New Way Forward?", Berkley Journal of International Law,, 37 (2019)
- Chunlei Zhao, "Investor-State Mediation in a China-EU Bilateral Investment Treaty: Talking About Being in the Right Place at the Right Time", Chinese Journal of International Law (2018)
- "Comprehensive Economic and Trade Agreement, EU-Can" (2016)[URL]
- "Consolidated CETA Text, Art. 14.5, (2014)", ~ (2014)
- "Making Mediation More Attractive for Investor-State Disputes"[URL]
- Deborah R. Hensler, "Our Courts, Ourselves: How the Alternative Dispute Resolution Movement Is Re-Shaping Our Legal System", Penn State Law Reiew (2003)
- Ellen Joan Pollock, "The Alternate Route", The American Lawyer (1983)
- "Investment, EU and China"[URL]
- European Paliament, "The Implementation of Mediation Directive", ~ (2016)
- EU-Sing, "Free Trade Agreement", EU-Sing., Annex 9-E and 9-F, ~ (2015)
- "Invitation to File Suggestions for Rule Amendments"[URL]
- "Investor-State Mediation"[URL]
- Proposals for Amendment of the ICSID Rules, Working Paper #3, "ICSID", International Center for Settlement of Investment Dispute, World Bank Group, ~ (2019)
- The ICSID Caseload-Statistics(Issue 2019-1), "ICSID", International Center for Settlement of Investment Dispute, World Bank Group, ~ (2019)
- International Bar Association Committe, State Mediation Subcommittee, "Rules for Investor-State Mediation", ~ (2012)
- International Energy Chater, "Guide on Investment Mediation", ~ (2016)
- "Singapore Convention Series: A Call For A Broad Interpret ation Of The Singapore Mediation Convention In The Context Of Invest or-State Disputes" (2019)[URL]
- James M. Claxton, "Compelling Parties to Mediate Investor-State Disputes:No Pressure, No Diamonds?", Pepperdine Dispute Resolution Law Journal, 20(1) (2020)
- Nancy A. Welsh, "The Thoughtful Integration of Mediation into Bilateral Investment Treaty Arbitration", Harvard Negotiation Law Review (2013)
- Report on Obstacles to Settlement of Investor-State Disputes, "National University of Singapore, Center for International Law", ~ (2018)
- Investor-State Dispute Settlement Public Consultation, "OECD", OECD Investment Division, ~ (2012)
- "Trans-Pacific Partnership Trade Agreement", ~ (2016)
- United Nations Convention on International Settlement Agreements Resulting from Mediation, "United Nations Commission On International Trade Law", ~ (2019)
- "Working Group III: Investor-State Dispute Settlement Reform"[URL]
- "Country Navigator"[URL]
- UNCTAD, "Fact Sheet on Investor-State Dispute Settlement Cases in 2018", UNCTAD, ~ (2019)
- William L. Ury, "Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict" (1988), Jossey-Bass