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ดุลพาห

C. PROCEDURE OF THE ICS

(1) Alternative Dispute Resolution (ADR)

The EU’s proposal for the ICS contains provisions on alternative dispute

resolution, including amicable settlement and mediation and consultation.
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Mediation is specifically reflected in the CETA, TTIP Proposal and EU-Vietnam
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FTA. Mediation is a form of ADR whereby an independent person (the mediator)
is chosen to facilitate the negotiations and assist the disputing parties in

identifying their interests, overcoming settlement barriers and develop possible
settlement options so that parties can arrive at a settlement agreement. It is a
voluntary process often used as a conflict resolution step prior to resorting to

arbitration or litigation. The CETA allows the disputing parties to agree to have

recourse to mediation at any time. Similarly, the TTIP proposal allows for
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mediation at any time during the dispute and encourages the use of mediation
by providing that “[a]ny dispute should, as far as possible, be settled amicably

through negotiations or mediation…” The EU-Vietnam FTA also allows for the
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parties to enter into a mediation procedure as provided by Annex III (Mediation
Mechanism) of the treaty with respect to measures adversely affecting trade
or investment. 81

The inclusion of mediation is a novel innovation in investment treaties
as it has been introduced in only a limited number of new international

75. Article 8.20 of the CETA (Mediation).
76. Article 6(1) of the TTIP.
77. Article 4 and Annex III (Mediation Mechanism) of the EU-Vietnam FTA.
78. Article 8.20(1) of the CETA.
79. Article 3(1) of TTIP.
80. Article 2(1) of the TTIP.
81. Article 4 of the EU-Vietnam FTA.

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