For many years, arbitration has been the de facto vehicle of choice for the resolution of investor-state disputes. However, despite the wholesale and widespread adoption of mediation in every sort of dispute, mediation is used rarely in investor-state disputes (Systra v. Philippines is one example). As of this writing, only 11 (1.3% of total ICSID cases) known conciliations—a procedure similar to mediation—have been recorded by ICSID. Even rarer are instances of tribunals encouraging parties to try mediation (see, e.g.,Achmea v. Slovakia).
In recent years, there have been extensive discussions about the use and potential superiority of mediation for these disputes. In this short piece, we address the main concerns against the use of mediation in investor-state disputes, offer some comparisons to the more popular path for investor-state arbitration, and then present several advantages of mediation to encourage its wider use in the international dispute resolution.
