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Should Mediation Of Investment Disputes Be Encouraged, And, If So, By Whom And How?

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Chapter Summary

In this chapter, the author introduces three questions and provides provisional answers to each. The first is, should mediation of investment disputes be encouraged? - to which he answers yes. That being the case, by whom? - his answer: by institutions, by counsel, by arbitrators, and by States (the latter when they draft bilateral investment treaties (BITs), when they defend as respondents, and, indeed, when they are non-disputants in arbitrations involving one of their investors). The third question entrusted to him - how to encourage mediation - raises devilish details. To produce even a slight drift toward a more mediation-oriented disputes process will require that account be taken of the inertia supporting arbitration, mediation's voluntary nature, and the human and structural obstacles that may exist to making it a routine part of the investor-State disputes regime.

Keywords: bilateral investment treaties (BITs); investment disputes; investor-state disputes; mediation



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