Underutilisation of ADR in ISDS: Resolving Treaty Interpretation Issues
Underutilisation of ADR in ISDS: Resolving Treaty Interpretation Issues
Online event
Over the years, it has become evident that arbitration is the favoured dispute resolution mechanism over conciliation/mediation in investor-state dispute settlement (ISDS). This is due to the benefits of arbitration (binding process with final, enforceable award) over the shortcomings of conciliation/mediation (non-binding process with non-enforceable settlement agreements). Therefore, incentives, such as the recent adoption of the Singapore Convention on Mediation and proposed amendments by ICSID, are deemed promising developments for the promotion of more alternative dispute resolution (ADR) mechanisms in ISDS.
This study advances a hypothesis that, apart from the non-enforceability of settlement agreements, there may be an additional and, as a matter of fact, the principal cause for the underutilisation of conciliation in ISDS. The common formulation of ISDS clauses, that carry advance consent to conciliation and arbitration in investment treaties, suggests that the choice between these two may have conflicting interpretations. Under one interpretation, disputants have an option to choose conciliation and then proceed with arbitration; the other interpretation suggests that selection of conciliation is to the exclusion of arbitration. This is also supported by anecdotal evidence where claimants have had an impression that the ‘fork in the road’ principle applied to the choice between conciliation and arbitration, and that, therefore, recourse to conciliation regardless of the outcome would jeopardise their right to subsequent arbitration. Based on these observations this study argues that the adoption of the Singapore Convention on Mediation will most probably not be enough to promote more ADR in ISDS. In particular, recourse to investor-state conciliation (and mediation) will not increase unless mediation/conciliation are made mandatory before arbitration, and the source of conflicting interpretations of the choice between conciliation and arbitration is eliminated.
About the speaker:
Dr Ana Ubilava is a lecturer in International Law at the University of Sydney Law School.
Discussant: Associate Professor Stacie Strong, the University of Sydney Law School and Co-Director of the Sydney Centre for International Law.
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Webinar via Zoom: Friday, 16 September, 1-2pm (AEST)
Once registered, you will be provided with Zoom details closer to the date of the webinar.
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CPD points = 1
This webinar is presented by the Sydney Centre for International Law at the University of Sydney Law School.