Harvard Investor-State Mediation Report

IMI was a delegate at the 2019 ISDS Mediation Colloquium at Harvard University last December, convened by Wolf von Kumberg, IDR Managing Director, former IMI Board Chair and current IMI Investor-State Taskforce member. The Colloquium resulted in the establishment of an implementation “ISDS Mediation Working Group” (MWG-ISDS) which has now released its first report, entitled “Unlocking Value Through Stakeholder Engagement: New Forms to Resolve Investor- State Disputes”.

Following on from its intellectual inception at Harvard University Davis Center Negotiation Task Force, Wolf von Kumberg was named as chairman of the Working Group, and will continue its efforts with IMI, UNCITRAL, IDR and ITF at the British Institute for International Law (BIICL) based in London, focusing on the practical implementation of the recommendations in the Report.

Summary Takeaways:

1. New forms of resolving investor-state disputes should address the lack of transparency in current ISDS processes, enhance governance structures to allow officials to take responsibility, and they should be grounded in an assessment-based process design.
2. Stakeholders should promote a broader range of interventions at different stages of an investor-state dispute’s development – up to and including formal mediation. Private, facilitated discussions should be available as an option prior to the initiation of formal mediation or arbitration proceedings.
3. Institutions should focus on facilitation and mediation capacity building. They should identify and train a broader pool of facilitators capable of navigating issues at different points of ISDS processes. States could work on developing a single point of contact that the parties can rely on.
4. Stakeholders should adopt a system that promotes two-way communication, open to both states and investors, that allows them to better share information and initiate a discussion at any point – from a mere question, to a problem, to a dispute – to enable them to better engage each other and avoid disputes, as well as maintain alignment.
5. States would likely promote these proposals within civil society if they saw them as an appropriate vehicle to manage relations with investors and to avoid and resolve disputes. When state and civil society stakeholders view investment as a means to sustainable development, they will be more likely to work to attract, retain, and protect investments.