ArbDB Chambers Members, Mark Appel, Wolf von Kumberg and Michael Cover, have all been involved in the International Mediation Institute (IMI)www.imimediation.org Investor-State (IS) Mediation Task Force Response to the European Commission on the use of mediation as a component of any reformed IS dispute settlement scheme. Mark Appel is the Chair of the IMI IS Mediation Task Force and Wolf and Michael are both members.
The Response advocates the further use of mediation as a component of any reformed multilateral investor-state dispute settlement (“ISDS”) system, and sets out key considerations attendant to establishing an adequate framework for the amicable resolution of investment disputes involving investors and governments within the single market (the “Framework”). It responds to the Public Consultation on the topic launched by the European Commission – Directorate-General for Financial Stability, Financial Services and Capital Markets Union (“DG FISMA”). In particular, the Note recommends that the Framework:
- explicitly acknowledges EU policy support for mediation;
- emphasises the importance of choosing independent, impartial, suitable and competent mediators;
- emphasises the importance of balancing transparency and confidentiality; and
- ensures flexibility in mediation access, timing and structure.
Importantly, the Response recommends that EU Investor-State policy reflect the expectation that mediation will be utilised for both conflict management and dispute resolution and, further, that mediation will be a treaty-based default option, which parties may unilaterally opt out of only by expressly rejecting the use of mediation at the time of the dispute.