THE ROLE OF MEDIATION AND CONCILIATION IN THE INTERNATIONAL INVESTOR STATE DISPUTE SETTLEMENT

Abstract

Abstract: The rising role of the alternative dispute resolution, including mediation and conciliation, in commercial arbitrations had long been considered less prominent in the field of investor state dispute settlement. However, this attitude is gradually changing as all stakeholders show more interest towards alternative dispute resolution to overcome systematic challenges of the ISDS, including excessive costs and duration of investment arbitration. This article argues that this change is evidenced, inter alia, by adoption of the ICSID Mediation Rules in 2022. This article further tests the hypothesis of alternative dispute resolution’s cost and time efficiency by analyzing available data on ICSID conciliation proceedings. It then reviews to which extent mediation and conciliation are envisaged in modern investment practice of Ukraine through a comprehensive review of all 65 bilateral investment treaties in force for Ukraine. Finally, it compares Ukrainian treaty practice against Ukraine’s track-record of disputes with foreign investors to assess the practical role of alternative dispute resolution and establish potential obstacles to its wider use.