IBA Draft Rules for Investor-State Mediation

Two years ago, a session was held at the Buenos Aires IBA Annual Conference on the feasibility of creating a set of rules for the mediation of disputes between investors and States.  The ICSID Conciliation Rules are broadly acknowledged to be clumsy and have seldom, if ever, been used.  For the past year, an IBA Task Force comprising four subcommittees has been working on drafting such rules, and its work was presented in Dubai for comment from the body.

Far from a rough draft, the rules are a robust and elegant document, reflecting considerable sensitivity to both State-investor disputes and to what goes into transnational dispute resolution.  The tone of the rules is both broad and flexible, with sharp delineations where needed.  Among its innovations are: 

  • A statement by the proposed mediator of both independence and availability;
  • An up-front disclosure of fee basis;
  • A three-layered process to appoint a mediator if the parties cannot agree;
  • A process for co-mediation if desired;
  • A default that mediation communications would not be confidential unless so designated by a party (this provision was criticized during the comment period);
  • A well thought-out process for an initial procedural conference;
  • Provisions for authorized representation and eventual enforcement that take into account the difficulties of binding nation-states during a mediation.

The drfat Rules will be modified to reflect the comments at the Dubai Conference and then posted at the IBA website for further comment.  Eventually the draft will be presented to the IBA Council for adoption as official IBA Rules. 

Co-Chairs Anna Joubin-Bret and Barton Legum are to be commended for an excellent and very much needed piece of work.

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