Conciliation and Mediation in Investor-State Dispute Settlement Provisions: A Quantitative and Qualitative Analysis

Abstract The article sets out the results of an extensive review of conciliation and/or mediation in investor-State dispute settlement (ISDS) provisions contained in international investment agreements (IIAs). Out of 3815 IIAs that were initially screened, 2674 (ie 70 per cent) do not refer to such provisions. The research also revealed that while the number of IIAs signed each year with investor-State conciliation provisions have significantly decreased, IIAs signed with investor-State mediation provisions are gradually increasing. The screening identified 1125 IIAs that contain investor-State conciliation provisions, of which 806 (ie 71.6 per cent) provide advance consent to conciliation. In comparison, of the 53 IIAs that were found to contain investor-State mediation provisions, only seven (ie 13.2 per cent) offer advance consent to mediation. Advance consent to ‘conciliation or arbitration’ was identified in 703 IIAs. The authors outline arguments to show that the conjunction ‘or’ in these provisions does not give rise to a fork in the road that precludes an investor’s right to arbitration if it first initiates conciliation proceedings. Only seven IIAs were found to require conciliation and/or mediation as a mandatory precondition to arbitration. The article concludes with recommendations to increase the use of investor-State conciliation and mediation provisions in future IIAs and also to improve the quality of those provisions.