The Note 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 acknowledge EU policy support for mediation;
- emphasise the importance of choosing independent, impartial, suitable and competent mediators;
- emphasise the importance of balancing transparency and confidentiality; and
- ensure flexibility in mediation access, timing and structure.
Importantly, the Note 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.
To download the IMI Investor-State Mediation Taskforce – DG FISMA Note from 30 January 2018 please click here.