Authored By: Opeyemi Tunde-Ayinuola
Obafemi Awolowo University
ABSTRACT
Mounting concerns over the exorbitant costs and adversarial nature of investor-state arbitration have led investors and states to consider investor-state mediation as a sustainable alternative to dispute resolution. This paper contends that investor-state mediation offers a collaborative and sustainable path to resolving disputes, as it addresses systemic flaws in arbitration while preserving long-term investor-state relationships.
To substantiate this claim, the paper traces the historical evolution of investor-state arbitration and the challenges that prompted the shift toward mediation. It then evaluates the potential, strengths, and limitations of mediation through real-world case studies, demonstrating its capacity to balance investor protections with state sovereignty. Finally, the paper proposes actionable recommendations to promote the efficacy of investor-state mediation in the long run.
INTRODUCTION
Arbitration has long been regarded as the holy grail of all Investor-State Dispute Settlement (ISDS) mechanisms, and is still largely considered as such today. It offers foreign investors a neutral platform to seek redress on matters arising from an international investment agreement outside domestic courts, which are often perceived as biased or inefficient.[1] It has also been lauded for protecting investors’ rights and its legitimacy, as it assures that awards are enforceable. But over time, arbitration has presented challenges such as lengthy timelines, high costs, and perceived lack of transparency, placing heavy burdens on investors and host states.[2] The adversarial nature of arbitration could also sever the relationship between investors and states, potentially deterring future investments.
These challenges have spurred calls for a reform of this ISDS mechanism. One such reform that has gained widespread interest is the adoption of investor-state mediation.[3] Mediation enables parties to gain full control of the dispute, bringing about outcomes that balance investor demands and state interests. It serves as a cost-effective and time-saving option for the parties. Additionally, it adopts a more collaborative approach through communications facilitated by a mediator. The adoption of the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) further underscores this interest, as it provides a framework for the enforcement of international settlement agreements resulting from mediation.[4]
In this context, this article examines the historical evolution of investor-state arbitration, which underscores the increased need to explore investor-state mediation as a viable alternative. It also delves into the procedural dynamics, strengths, and limitations of mediation. Furthermore, this paper explores practical applications through case studies and discusses future prospects and recommendations for integrating mediation into the ISDS framework.
HISTORICAL EVOLUTION OF INVESTOR-STATE ARBITRATION
Historically, investment disputes were resolved through diplomatic channels, domestic courts, or even coercive strategies such as gunboat diplomacy.[5] However, these dispute resolution channels were plagued by issues surrounding the exercise of sovereignty by the host state and high litigation costs, which discouraged foreign investment.[6] This led to the search for more neutral dispute resolution mechanisms.
During the post-World War II era, arbitration gained popularity due to a significant surge in the establishment of Bilateral Investment Treaties (BITs). Most BITs included provisions that allowed investors to bypass domestic courts and seek redress directly through international arbitration. This advancement was facilitated by two major developments in this field: the enactment of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention)[7] and the establishment of the International Centre for Settlement of Investment Disputes (ICSID) in 1966.[8]
Between the 1970s and 1980s, arbitration had become the default mechanism for resolving investor-state disputes.[9] The late 20th and early 21st centuries further saw the emergence of multilateral treaties like the North American Free Trade Agreement (NAFTA)[10] and the Energy Charter Treaty (ECT),[11] which also employed arbitration as the default dispute resolution mechanism.
To initiate an arbitration process, an investor has to deliver a notice of arbitration to the host state. This is followed by the tribunal formation stage, where each party can nominate an arbitrator, while the Chair of the Tribunal is jointly appointed by both parties. Furthermore, the parties select a set of arbitration rules, such as the International Centre for Settlement of Investment Disputes (ICSID) Rules or the United Nations Commission on International Trade Law (UNCITRAL) Rules, to govern the procedure.[12] This often covers issues such as arbitration timelines and evidence presentation. After evidence and legal arguments are presented, the Tribunal renders a binding arbitral award that resolves the dispute.[13]
The binding nature of awards, coupled with the New York Convention’s robust enforcement mechanisms, provided investors with unprecedented legal security. Additionally, the ability to nominate arbitrators gave the parties a degree of control over the process.
THE RISE OF INVESTOR-STATE MEDIATION
Despite these advantages, arbitration has been constantly criticised over the years. This is due to provisions in international investment agreements that enable foreign companies to challenge state laws that harm their profits.[14] There are also issues regarding the lengthy timelines and costs associated with arbitration. On average, an investor-state arbitration costs more than commercial arbitration, with average party costs of approximately $4.7 million for respondents and $6.4 million for claimants.[15]
Additionally, ICSID proceedings last an average of four years and eight months, while UNCITRAL proceedings only last five months less. This means that parties end up spending at least $1 million per year on arbitral proceedings. These proceedings could take even longer for disputes involving large claims. Presently, claims above $1 billion have been known to last an average of almost eight years.[16] Moreover, the enforcement of arbitral awards has become a growing concern, as states are increasingly refusing to pay investment treaty awards. Recent studies have shown that at least $70.5 billion in award debt remains unpaid.[17]
As a result, there have been calls to reform the ISDS mechanism and its systemic problems through the adoption of investor-state mediation. Investor-state mediation is a process by which a neutral third party assists the parties to reach a voluntary and mutually acceptable agreement through structured negotiations. The essential element of this process is that the mediator only helps to facilitate a settlement, allowing the parties to assume full control of the outcome of the dispute.
Presently, there has been a growing interest in promoting mediation. It has been included on the agenda of the multilateral ISDS reform by the UNCITRAL Working Group III as a potential method for resolving investment disputes. Additionally, the last decade has been marked by various reform initiatives and procedural rules that parties can deploy in mediation. These include the International Bar Association (IBA) Rules for Investor-State Mediation (2012),[18] the ECT Guide on Investment Mediation (2016),[19] the UNCITRAL Mediation Rules (2021),[20] the VIAC Rules of Investment Arbitration and Mediation (2021),[21] and the recent International Centre for Settlement of Investment Disputes (ICSID) Mediation Rules (2022).[22] Furthermore, the UNCITRAL Working Group III adopted, in 2023, draft provisions on the use of mediation in ISDS (including draft model provisions to include in investment treaties) and guidelines for investment mediation.[23]
Another key driver of this shift to mediation is the adoption of the Singapore Convention on Mediation. This addresses the core issue of the lack of enforceability associated with mediation agreements. Thus, this Convention ensures global enforceability of settlement agreements, giving parties greater confidence in the mediation process. Furthermore, the ICSID Mediation Rules have been drafted to ensure compliance of mediated settlements with the Singapore Convention.
This evolution has been reflected in the provisions of recent investment treaties. For example, Agreements like the Netherlands Model BIT and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership explicitly encourage mediation as part of their dispute resolution provisions.[24]
ADVANTAGES OF INVESTOR-STATE MEDIATION
Investor-state mediation is gaining significant prominence in the ISDS community due to the advantages enjoyed by both investors and host states. These benefits include:
Cost and Time Efficiency
Mediation is typically more cost-effective and time-efficient than arbitration. According to the 2022 CEDR Investor-State Mediation Guide, the external cost estimate of a mediation is only a fraction of the $5 million that is usually spent for an average investor-state arbitration.[25] In some cases, mediators regard mediation as a social service, causing them to waive their fees or merely charge a nominal fee.[26] Furthermore, experience from similar international commercial mediations suggests that mediation processes often conclude within six to nine months.[27]
A Collaborative and Creative Approach
Unlike arbitration, where parties are likely to encounter unpredictable outcomes and possibly damages worth billions of dollars, mediation fosters collaboration.[28] As a result, investors and states are becoming more open to exploring mediation to bypass these risks. In mediation processes, the mediator helps to create a safe space where both parties can discuss external issues impacting the investment relationship. It offers a self-tailored outcome that allows for a balance between investors’ commercial priorities, such as new investments, against states’ and public interests, such as job creation and capacity building.[29]
Furthermore, it allows parties to craft creative outcomes that go beyond strict legal facts by considering non-legal issues and shared interests.[30] This helps parties to mitigate the financial risk of unpredictable awards and creates a win-win outcome where both parties leave satisfied.
Flexibility
In practice, mediation can be conducted at any stage. It could be employed as a stand-alone process or combined with arbitration. Nowadays, “Med-Arb” or “Arb-Med-Arb” provision in international agreements is becoming increasingly common.[31] In most cases, it is conducted during “cooling off periods,” a common precondition to arbitration in many investment treaties.[32] If the parties reach a full settlement, they may agree to discontinue arbitration. Alternatively, they could resume arbitration and request the arbitral tribunal to incorporate the mediated settlement agreement into the arbitral award. For partial settlements, parties may continue to arbitrate only those remaining issues in dispute.[33]
Preserves Investment Relations
Unlike arbitration, mediation is a less adversarial process that offers the parties a chance at a mutually acceptable solution. This helps the parties preserve their ongoing relationship, which could bring about significant economic benefits such as increased foreign direct investment.[34]
CHALLENGES AND BARRIERS TO ADOPTION
Psychological and Systemic Barriers
States are often reluctant to explore mediation as an alternative due to certain psychological and systemic barriers. First, investor-state disputes often attract wide media attention, making them open to public scrutiny. This places pressure on the state to take a firmer stance when settling these disputes.[35] Second, mediated settlements often require the state to voluntarily bear the costs, meaning any award or settlement could result in using taxpayers’ money to pay the foreign investor. This could illicit corruption allegations from future governments.[36] For this reason, states prefer to defer responsibility for such payments by using formal mechanisms such as arbitration to justify the payment.[37]
Moreover, there are usually more budgetary constraints in obtaining approval for a settlement as opposed to an arbitral award. Finally, there is an inherent lack of trust between investors and states when a dispute arises. This causes states to believe that settling a dispute could potentially set a precedent that could attract more claims from other investors.[38]
The Confidentiality-Transparency Debate
One of the core requirements of any mediation process is confidentiality. However, this requirement often clashes with the need for transparency in high-stakes cases such as investor-state disputes. On one hand, excessive confidentiality can hinder public accountability and elevate the risk of corruption.[39] On the other hand, transparency becomes difficult when it involves confidential information involving the investor’s business or issues of national security.
Enforcement
Although the Singapore Convention addresses the challenge of enforcing mediation settlements, it only has 57 signatories and 18 parties.[40] This shows that it has not yet gained widespread acceptance like the New York Convention. Therefore, parties may be unable to rely on the Singapore Convention to enforce mediated settlements in many states.
Furthermore, Article 8 of the Singapore Convention grants states the right to make a reservation that the provisions of the Convention ‘shall not apply to settlement agreements to which it is a party, or to which any governmental agencies or any person acting on behalf of a governmental agency is a party, to the extent specified in the declaration .’
CASE STUDIES
Having examined the benefits and challenges of investor-state mediation, here are some case studies that demonstrate its growing relevance in resolving investor-state disputes. The first is the case of Systra SA v. Republic of the Philippines (2016). This case involved a contractual dispute brought by Systra SA and its local subsidiary, Systra Philippines, Inc. The dispute arose from allegations of long-overdue invoices for Systra’s services rendered on transportation infrastructure projects for various government agencies of the Philippines.[41]
Instead of escalating the matter to arbitration, both parties opted for mediation pursuant to the 2012 IBA Rules at the International Chamber of Commerce (ICC) International Centre for Alternative Dispute Resolution (ADR). The mediation process allowed for open dialogue between the parties, facilitated by an experienced mediator. Unfortunately, the mediation did not result in a settlement. The process was nonetheless cost-effective and instrumental in facilitating communication between the parties, leaving room for future business opportunities.[42]
However, the parties in Pan African Burkina v. Burkina Faso took a different approach. In this case, a dispute arose after the Burkinabé government revoked a mining permit for the Tambao manganese project in 2016, alleging that the investors failed to meet contractual obligations.[43] The parties agreed to conduct mediation in parallel to arbitration. This means that both dispute resolution mechanisms were employed alongside each other. The investors had realised a lack of success in the mediation, so they decided to seek arbitration as a means of facilitating this process.[44]
Future Prospects and Recommendations
Recent treaty practice shows a marked progression from merely mentioning mediation as a non–binding dispute resolution procedure to incorporating comprehensive procedural rules of mediation.[45] For instance, Mainland China and Hong Kong signed an investment agreement on 28 June 2017, under the framework of the Mainland and Hong Kong Closer Economic Partnership Arrangement (“CEPA”). This framework establishes a mediation mechanism to resolve investment disputes. It also provides detailed guidance for the use of mediation and the procedures for appointing mediators[46] while referencing specific mediation institutions.[47]
Another agreement incorporating a set of comprehensive rules of investor–state mediation is the Canada–European Union Comprehensive Economic and Trade Agreement (“CETA”) of 2016. This agreement sets out detailed rules of procedure for mediation, including initiation of the proceedings, selection of the mediator, rules of procedure for mediation, implementation, confidentiality, time limits, costs, and review.[48] It also provides for a Code of Conduct for arbitrators, which applies, mutatis mutandis, to mediators.[49]
This ongoing trend shows that investors and states are presently embracing mediation as a “softer” approach in contrast to the formalized and proceduralised approach used in arbitration proceedings. However, certain mechanisms need to be put in place to cement the role of mediation in resolving investor-state disputes. In the words of Sir Anthony Clarke, “…you can take a horse to water, but whether it drinks is another thing entirely…Litigants, being like horses, we should give them every assistance to settle their disputes in this way. We do them, and the justice system, a disservice if we do not.”[50]
Therefore, certain recommendations should be considered to enhance the effectiveness of investor-state mediation. First, investors and states should work on establishing trust whenever a dispute occurs. Most investor-state disputes are marked with a high level of mistrust, causing the parties to view arbitration as the most effective option due to its formalised procedures. Strategic dissemination of information or concessions may go a long way towards reestablishing trust between the parties.[51]
Second, more treaties and international agreements should frame procedural rules on mediation to suit the needs of the parties involved. For example, the mediation should be carried out early on in the dispute or in parallel to arbitration. If mediation takes place early on in the dispute, it becomes easier to mediate the entire dispute rather than only the financial aspects.[52] Furthermore, they should adopt the format used in the CEPA and CETA by incorporating a set of comprehensive rules of investor–state mediation rather than merely mentioning mediation as an option to explore.
Finally, balancing transparency and confidentiality requires a structured yet flexible approach. Currently, arbitration has the UNCITRAL Rules on Transparency[53] and the Mauritius Convention[54] to address issues of transparency. However, there are no such rules for mediation processes. States and the international community at large should consider adopting clear procedural rules that set out guidelines on information that should be disclosed and that which can remain private. A good example of a framework that already adopts this approach is CETA. Art. 6.1 of Annex 29-B specifically provides that “all stages of the proceeding, including any advice or proposed solution, are confidential.” However, when parties reach a “mutually agreed solution,” the agreement will have to be made public.[55]
Conclusion
As the quest to reform ISDS continues, mediation plays a vital role in ensuring a collaborative and sustainable approach to resolving investment disputes. Thus, mediation undoubtedly has the potential to address systemic flaws in arbitration while balancing investor protections with state sovereignty. The above case studies also demonstrate the practical viability of mediation. Notwithstanding, challenges of enforcement, transparency, and state reluctance continue to hinder its efficacy.
Moving forward, fostering trust, refining procedural rules, and striking a balance between confidentiality and transparency will be key to strengthening mediation’s role in ISDS. Although it is not the ultimate remedy, mediation provides a sustainable path toward dispute resolution, one that prioritizes dialogue over confrontation and mutual gains over unpredictable outcomes. Its success, however, hinges on broader institutional support and treaty integration. As states and investors increasingly embrace mediation, it has great potential to redefine the future of investment dispute resolution.
[1] Caio César Soares, ‘Investor-State Dispute Settlement: An Analysis of the Reform Proposals on Its Institutional Structure’ (SSRN, 11 May 2017) available at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=298458> accessed 6 May 2025
[2] Madina Dumanova and Per Neuburger, ‘Beyond Investment Arbitration: Investment Mediation as a ‘New Light’ (IBA, 21 October 2022) available at <https://www.ibanet.org/beyond-investment-arbitration-investment-mediation-new-light> accessed 6 May 2025
[3] Sylvia Noury and others, ‘Investor-State Mediation: a Bridge over Troubled Waters?’ (Freshfields, 2025) available at <https://www.freshfields.com/en/our-thinking/campaigns/international-arbitration-in-2025/investor-state-mediation-a-bridge-over-troubled-waters/> accessed 10 May 2025
[4] United Nations Convention on International Settlement Agreements Resulting from Mediation (adopted 20 December 2018, entered into force 12 September 2020) available at <https://uncitral.un.org/sites/uncitral.un.org/files/singapore_convention_eng.pdf> accessed 6 May 2025
[5] Gautam Mohanty and Alexandros Bakos, The Depoliticization of Investment Disputes – How Deep Does the “Rabbit Hole” Go? (WTI Working Paper No 09/2023, 17 November 2023) available at <https://www.wti.org/research/publications/1417/the-depoliticization-of-investment-disputes-how-deep-does-the-rabbit-hole-go/> accessed 7 May 2025
[6] Gautam and Alexandros (n 5)
[7]United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (adopted 10 June 1958, entered into force 7 June 1959) 330 UNTS 3 available at <http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/New-York-Convention-E.pdf > accessed 7 May 2025
[8] Caio Cesar Soares, ‘Investor-State Dispute Settlement: An Analysis of the Reform Proposals on Its Institutional Structure’ (11 May 2017) available at <http://dx.doi.org/10.2139/ssrn.2984581> accessed 8 May 2025
[9] Mostafa Dirani and Rawan Hassoun, ‘Arbitration and Court-Like Mechanisms in Investment Law: A Paradigm Shift in Resolving Investors’ Disputes’ (2024) 11(1) IJETMR available at <https://www.granthaalayahpublication.org/ijetmr-ojms/ijetmr/article/view/1397/1151> accessed 7 May 2025
[10] North American Free Trade Agreement (adopted 17 December 1992, entered into force 1 January 1994) (1993) 32 ILM 289 available at <https://www.italaw.com/sites/default/files/laws/italaw6187(14).pdf> accessed 8 May 2025
[11] Energy Charter Treaty (adopted 17 December 1994, entered into force 16 April 1998) 2080 UNTS 95 available at <https://www.energycharter.org/fileadmin/DocumentsMedia/Legal/1994_ECT.pdf> accessed 8 May 2025
[12] Marta Latek and Laura Puccio, Investor-State Dispute Settlement (ISDS): State of Play and Prospects for Reform (EPRS Briefing, January 2015) available at <https://www.europarl.europa.eu/RegData/etudes/BRIE/2015/545736/EPRS_BRI(2015)545736_EN.pdf> accessed 8 May 2025
[13] Marta and Laura, (n 12)
[14] Hangil Lee and Sangchul Kim, ‘Investor-State Mediation: Are We Prepared?’ (Chambers and Partners, 15 September 2023) available at <https://chambers.com/legal-trends/legal-market-overviews-in-investor-state-mediation> accessed 7 May 2025
[15] Joe Tirado, ‘Investor-State Mediation: A New Way to Solve Old Problems’ (2024) available at <https://riu.austral.edu.ar/bitstream/handle/123456789/3183/Investor.pdf?sequence=1&isAllowed=y> accessed 9 May 2025
[16] British Institute of International and Comparative Law and Allen & Overy 2021 Empirical Study: Cost, Damages and Duration in Investor-State Arbitrationvailable at <https://www.jdsupra.com/legalnews/costs-damages-and-duration-in-investor-8569794?utm_source=chatgpt.com
[17] Nikos Lavranos, Report on Compliance with Investment Treaty Arbitration Awards (2nd edn, NL-InvestmentConsulting 2023) available at <https://www.internationallawcompliance.com/wp-content/uploads/2023/10/FULL-Report-2023-DEF-25-OCT-.pdf> accessed 9 May 2025
[18] International Bar Association, ‘Rules for Investor-State Mediation’ (2012) available at <https://www.ibanet.org/MediaHandler?id=C74CE2C9-7E9E-4BCA-8988-2A4DF573192C> accessed 9 May 2025
[19]Energy Charter Secretariat, ‘Guide on Investment Mediation’ (2016) available at <https://www.energycharter.org/fileadmin/DocumentsMedia/CCDECS/2016/CCDEC201612.pdf> accessed 9 May 2025
[20] United Nations Commission on International Trade Law, ‘UNCITRAL Mediation Rules’ (2021) available at <https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/22-01369_mediation_rules_ebook_1.pdf> accessed 9 May 2025
[21] Vienna International Arbitral Centre, ‘VIAC Rules of Investment Arbitration and Mediation’ (2021) available at <https://www.wko.at/oe/wko/verlautbarungsblatt-2022-05-smo-2-eng-sig.pdf> accessed 9 May 2025
[22] International Centre for Settlement of Investment Disputes, ‘ICSID Mediation Rules’ (2022) available at <https://icsid.worldbank.org/sites/default/files/documents/ICSID_Mediation.pdf> accessed 9 May 2025
[23] Sylvia, (n 3)
[24] Sylvia, (n 3)
[25] Centre for Effective Dispute Resolution, ‘CEDR Investor-State Mediation Guide for Lawyers and Their Client’ (2022) available at <https://www.cedr.com/wp-content/uploads/2022/03/Investor-State-Mediation-Guide-Interactive.pdf?utm_source=foleon&utm_medium=lead-magnet&utm_campaign=investor-state > accessed 9 May 2025
[26] Susan D Franck, ‘Using Investor-State Mediation Rules to Promote Conflict Management: An Introductory Guide’ (Washington & Lee Public Legal Studies Research Paper No 2014-13, 2 February 2014) available at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2389763> accessed 9 May 2025
[27] Centre for Effective Dispute Resolution, (n 25)
[28] International Investment Agreements Navigator (UNCTAD Investment Policy Hub, 2022) available at <https://investmentpolicy.unctad.org/international-investment-agreements/by-economy> accessed 9 May 2025
[29] Sylvia, (n 3)
[30] Jack J Coe Jr, ‘Settlement of Investor-State Disputes Through Mediation – Preliminary Remarks on Processes, Problems and Prospects’ in R Doak Bishop, Enforcement of Arbitral Awards Against Sovereigns (JurisNet 2009) 82.
[31] Hangil and Sangchul, (n 14)
[32] Sylvia, (n 3)
[33] Stevenson Harwood, ‘Investor-state Mediation’ (Lexology, 15 June 2022) available at <https://www.lexology.com/library/detail.aspx?g=f35eef68-3240-46b9-bb44-9f08e80f8766> accessed 9 May 2025
[34] Ting-Kwok IU, ‘Is Investor-State Mediation An Emerging Practice? A Practitioner’s Perspective’ (Kluwer Mediation Blog, 2022) available at <http://mediationblog.kluwerarbitration.com/2019/10/16/is-investor-state-mediation-an-emerging-practice-a-practitioners-perspective/> accessed 10 May 2025.
[35] Centre for International Law: National University of Singapore, Survey on Obstacles to Settlement of Investor Disputes (2017) available at <https://cil.nus.edu.sg/wp-content/uploads/2017/08/Final-Report-of-CIL-Obstacle-Survey-26-May-2017.pdf> accessed 11 May 2025
[36] Centre for International Law: National University of Singapore, (n 35)
[37] Hangil and Sangchul, (n 14)
[38] Madina and Per, (n 2)
[39] Sylvia, (n 3)
[40] Singapore Convention on Mediation (adopted 20 December 2018, entered into force 12 September 2020) available at <https://uncitral.un.org/sites/uncitral.un.org/files/singapore_convention_eng.pdf> accessed 11 May 2025
[41] Kun Fan, ‘Mediation of Investor-State Disputes: A Treaty Survey’ (2020) 8(2) Journal of Dispute Resolution available at <https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1866&context=jdr> accessed 11 May 2025
[42] Andrea K Schneider and Nancy A Welsh, ‘Bargaining in the Shadow of Investor-State Mediation: How the Threat of Mediation Will Improve Parties’ Conflict Management’ (2021) 17(2) University of St Thomas Law Journal 373, 373-410 available at <https://scholarship.law.tamu.edu/facscholar/1481> accessed 11 May 2025
[43] Damien Charlotin, ICC Tribunal Refuses to Grant Provisional Measures Absent Irreparable Harm in Pan African Burkina Ltd v. Burkina Faso Arbitration available at <https://www.iareporter.com/articles/icc-tribunal-refuses-to-grant-provisional-measures-absent-irreparable-harm/> accessed 11 May 2025
[44] Catherine Kessedjian and others, ‘Mediation in Future Investor–State Dispute Settlement’ (2023) 14 Journal of International Dispute Settlement available at <https://academic.oup.com/jids/article/14/2/192/6640309> accessed 11 May 2025
[45] Kun Fan, (n 41)
[46] Mainland and Hong Kong Closer Economic Partnership Arrangement Investment Agreement (signed 1 January 2018) art. 19(1)(v).
[47] Mainland and Hong Kong Closer Economic Partnership Arrangement Investment Agreement (signed 1 January 2018) art. 20
[48] Rules of Procedure for Mediation of the Comprehensive Economic Trade Agreement (CETA) Annex 29-C Art. 2 – 9
[49] Rules of Procedure for Mediation of the Comprehensive Economic Trade Agreement (CETA) Annex 29-B
[50]Anthony Clarke, The Future of Civil Mediation (Speech to the Civil Mediation Council’s National Conference, 8 May 2008).
[51] CEDR Investor-State Mediation Guide for Lawyers and their Clients (CEDR, 2022) available at <https://www.cedr.com/wp-content/uploads/2022/03/Investor-State-Mediation-Guide-Interactive.pdf?utm_source=foleon&utm_medium=lead-magnet&utm_campaign=investor-state> accessed 11 May 2025
[52] Catherine, (n 44)
[53] UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration <https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/rules-on-transparency-e.pdf>
[55] Rules of Procedure for Mediation of the Comprehensive Economic Trade Agreement (CETA) Annex 29-C Art. 4.6
