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investment agreements (“IIAs”). Investor-State Mediation (“ISM”) has been
a welcomed development for treaty-based investment disputes, as the time

and costs for both States and investors may be substantially reduced while the

working relationships between them may be improved. According to the EU, the
average Investor-State arbitration often extends over several years, where the
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“total length is often around 6 years (with many taking longer)”. Investor-State
arbitration are often viewed by critics as costly, risky, and lengthy, with the

possibility of any business relationship between the investor and host State
deteriorating. Since mediation tends to preserve the parties’ working relationship,
this is a welcomed development as it is less disruptive to the underlying

investment and prevents any disruptive consequences on the people in the

host State. Moreover, an additional advantage of ISM over Investor - State
arbitration is confidentiality of the proceedings and the outcome.

(2) Conduct of Proceedings

Investment claims by covered investors are to be submitted to the

First Instance Tribunal with respect to alleged breach of the investment
chapter under the following rules:

82. See for example, Article 16.5 of the 2015 Japan-Mongolia Economic Partnership Agreement
(“EPA”) provides that “mediation may be requested at any time by either party.”; Article
10.15 of the Central American Free Trade Agreement (“CAFTA-DR”) states that “the claimant
and the respondent should initially seek to resolve the [investment] dispute through consultation
and negotiation, which may include the use of non-binding, third-party procedures such as
conciliation and mediation.”; Article 26 of the Investment Agreement for the COMESA
Common Investment Area requires a six-month cooling off period, during which the parties
“shall seek the assistance of a mediator”, unless an alternative method of dispute settlement
is agreed upon.
83. See European Commission Fact Sheet MEMO/15/6060, Why the New EU Proposal for an
Investment Court System in TTIP is Beneficial to Both States an Investors, 12 November
2015. Retrieved from http://europa.eu/rapid/press-release_MEMO-15-6060_en.htm.

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