Since being established in January 2008, the IBA State Mediation Subcommittee has explored the reasons why investor-state mediation is not more prevalent. The Subcommittee’s findings stress that it is important for rules to reflect the specific context of investor-state disputes and that the one set of existing rules specifically drafted for that context (the ICSID conciliation rules) is insufficiently flexible and that, while other rules exist that are flexible, they are not drafted with the investor-state context in mind.
For this reason, the Subcommittee formed an IBA working Group on Rules for Investor-State Mediation and CRCICA’s Director was invited to join in. Composed of about 40 international experts, the Working Group prepared consolidated Draft Rules in October 2011, due to be finalized in 2012.
The Draft Rules provide a flexible framework for investor-State mediation that conforms to best international practices today. Among their innovations are:
– A statement by the proposed mediator of both independence and availability.
– A three layered process to appoint a mediator if the parties cannot agree ;
– A process for co-mediation if desired,
– 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 Draft Rules will be modified to reflect the comments expressed at the IBA 2011 Dubai Conference and then posted at the IBA website for further comments. Eventually, the draft will be presented to the IBA Council for adoption as official IBA Rules.
