Investor-State Disputes: What Works Beyond Arbitration?
Eloïse M. Obadia
ABSTRACT
Given the criticism addressed towards international arbitration to settle investor-state disputes, it is necessary to explore alternatives. The most prominent one is mediation which presents many advantageous features centered around preserving and nurturing the relationship between the state and the investor. While all the conditions are met for the increased use of mediation, it remains marginal, mainly because of the very essence of investor-state disputes. A promising alternative is conflict-prevention which includes several tools intervening at different levels of the investor-state conflict continuum. Such tools include grievance management mechanisms and investment ombudsmen which incorporate mediation techniques in their operating procedures and have proven to be efficient. In the end, it is better to prevent than to cure and the most efficient way to prevent is to educate.