A Set of Rules Dedicated to Investor-State Mediation: The IBA Investor-State Mediation Rules

Consensual resolution of disputes between investors and States is not a new idea. The 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States ('ICSID Convention') expressly provides for conciliation to resolve investor-State disputes. Nor is it news that disputes can generally be efficiently resolved through mediation, by which we mean the flexible intervention of a third-party neutral to assist the parties in resolving their dispute. What is new is the development of a set of mediation rules specifically designed to assist investors and States in settling disputes under investment treaties, investment contracts or investment laws. The International Bar Association (IBA) Council adopted the IBA Rules for Investor-State Mediation in October 2012. The Rules were developed by the State Mediation Subcommittee of the IBA Mediation Committee. The authors had the privilege to chair the Subcommittee and the working group that prepared the draft rules for approval by the Council. In the discussion that follows, we first review the background that led to this initiative. We then discuss the process by which the Rules were created. Finally, we provide a brief overview of the Rules and thoughts on the way forward.