The Future of Investor-State Mediation.

Panel Discussion I at IIMC Colombo 2023 – Moderated by Samaa Shazuli

Colombo, Sri Lanka – 22nd August 2023

In a world marked by the intricacies of global investments and international disputes, the role of Investor-State Mediation (ISM) has been steadily gaining prominence. It is an arena where stakeholders from governments and corporations seek to find common ground amidst complex legal landscapes. This very theme took center stage at the recent panel discussion hosted at IIMAC Colombo 2023.

The event brought together a panel of experts in the field, each representing leading organizations in the field of international dispute resolution. Judith Knieper from the UNCITRAL: United Nations Commission on International Trade Law (UNCITRAL), Anna Holloway from the International Centre for Settlement of Investment Disputes (ICSID) (ICSID), Anil (安纽) CHANGAROTH from the IMI - International Mediation Institute (IMI), and Mary Walker from the Centre for Effective Dispute Resolution (CEDR) (CEDR) shared their insights and expertise at the Panel Discussion. The discussion was moderated by Samaa Shazuli , Program Manager at the The Moot Court Bench (MCB).

Aligned by the topic of ‘The future of Investor-State Dispute Settlement (ISDS) and the sub-structures of ISM,’ the overarching objective of this panel discussion was to explore ISM’s evolving landscape and its potential impact on international dispute resolution, especially where Investor-State disputes are concerned. The Panel Discussion kicked off with insights into the current global landscape of ISM. Panelists shared their observations on how ISM has been gaining traction as an effective means of resolving investment disputes. The significance of ISM as a progressive alternative to Investor-State Arbitration (ISA) was acknowledged unanimously. Each panelist's unique perspective contributed to a holistic understanding of the subject matter.

Judith Knieper provided an in-depth view of recent developments in ISDS, focusing on the work and role of UNCITRAL’s Working Group III and the Draft Code of Conduct for Adjudicators (DCCA). She elaborated on how these initiatives are paving the way for a more refined ISM framework.

Anna Holloway, representing ICSID, shed light on the enforcement of the ICSID Mediation Rules and their role in enhancing the efficiency of ISM proceedings. The integration of mediation in multilateral disputes involving multiple parties, such as complex infrastructure projects, was also discussed.

Anil Changaroth provided insights into the IMI ISM Task Force's efforts to enhance the credibility and recognition of ISM among the international community. He explained the criteria and standards employed to accredit mediators specializing in ISDS cases.

Mary Walker delved into the impact of the Singapore Convention on Mediation in the field of ISDS, and also highlighted successful case studies where ISM had proven highly effective. In her commentary on the current state of ISM within the field of ADR, she characterized it as being in its "growth phase." She commended the MCB’s efforts at establishing IIMC Colombo as a platform to sustain this momentum, guiding us into the 21st century.

Offering his unique perspective on ADR, Anil highlighted that he has refrained from using the term "Alternative Dispute Resolution" for the acronym ADR, for at least the past decade. He explained how mediation, negotiation, and other related dispute resolution mechanisms were once considered 'alternatives' to litigation, but now the approach is to look at them and decide which is the more “Appropriate” Dispute Resolution mechanism is, under the circumstances.

The panelists collectively envisioned the future landscape of ISM within the context of ISDS. The panel discussion underscored the critical role ISM plays in shaping the future of investment disputes and set the stage for further collaboration and innovation in this evolving field.

One of the challenges identified, as highlighted by Anna, was the ‘educational awareness gap’ – a lack of familiarity with the mediation process, particularly among practitioners and parties from jurisdictions where mediation for commercial matters is not predominant."

This issue of educational awareness is precisely what IIMC aims to bridge. By bringing together professionals and experts in the field, IIMC provides a platform for sharing knowledge and best practices on ISM. As we reflect on the insights shared by our panelists, we look forward to a future where ISM takes center stage in resolving complex international investment disputes, ensuring fairness and efficiency for all stakeholders involved.

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