ADR in International Investment Law: Recent Trends (a Specific Focus on Mediation)

The 2022 ICSID Rules and Regulations on Investment Mediation and the 2023 UNCITRAL Guidelines and UNCITRAL Model Provisions on Mediation in International Investment Disputes represent the conclusion of a long debate on the use of mediation in investment disputes. During the negotiations to reach those texts, all the challenges and potential of the instrument were considered. Many are the skeptics who continue to consider mediation an instrument not suitable for disputes between State and investors, due to the specificity of the interests that the State protects, which cannot be easily balanced with the interests of the individual investor, and the dynamics of accountability of the public administration that would make it difficult to allow a settlement to be reached. However, there is also clear potential, especially in the flexibility of the instrument and in its predisposition to give space to the interests of third parties, with the possibility therefore of addressing even the most current issues related to sustainability. The paper considers all these aspects and the perspectives that mediation (and ADR tools in general) can open in the complex world of investment dispute resolution.