However effective and broadly adopted the Convention and Rules of the International Centre for Settlement of Investment Disputes (ICSID) have been, the ICSID Conciliation Rules have enjoyed very little respect and have seldom been used.

This is especially to be regretted, because ICSID arbitrations, though relatively few in number, are often time-consuming, recondite, expensive and magnets for ancillary proceedings.  It has also been observed that the outcomes of ICSID arbitrations are less predictable than ordinary international arbitrations, based on a shallow pool of precedent to assist adjudication of fundamental concepts.

Yet the ICSID Conciliation Rules, last amended in 2002, evidence fundamental misunderstandings of the mediation process as practiced by global companies.  They call for a Commission of Conciliators qualified by virtue of their “high moral character and recognized competence in the fields of law, industry or finance,” and making decisions by a majority vote.  Sessions of the Commission resemble hearings, with evidence taken.  Witnesses and experts are heard, and a report is prepared and filed with the Secretary-General of the Centre.

Good tidings, then, that the International Bar Association has promulgated modern, informed, responsive rules for mediation of investor-state disputes that reflect not only the peculiar attributes of those conflicts but also best practices of modern mediation.  Co-Chairs Anna Joubin-Bret and Barton Legum are to be congratulated, along with the members of the committees responsible for an excellent result.

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