Mediation in foreign investment disputes: a case study of ICSID and Energy Charter Treaty

Foreign investment disputes form one of the most complex International disputes from different perspectives including size of the claims, complexity, and the parties. One of the dispute resolution mechanisms in such disputes is mediation, that so far has not been employed in many cases. Arbitration on the other hand, is considered the mainstream dispute resolution method for resolving foreign investment disputes, which has yet been subject to many criticisms due to the length of the process and high costs. In this paper, after describing certain features of foreign investment disputes, the use of mediation in such disputes will be analyzed and in light of that analysis, the role of mediation in ICSID and Energy Charter Treaty will be reviewed. While there are some similarities in the processes, there are certain differences in some respects such as the inclusion of conciliation in the definition of mediation and certain procedural rules, which will also be analyzed.The authors of this paper are of the opinion that considering certain characteristics of foreign investment disputes, mediation can be considered as the cost-effective dispute resolution method in such disputes. KeywordsMediation, Foreign Investment, Oxide Convention, Energy Charter Treaty, Confidentiality