The International Investor-State Mediation Competition organized by The Moot Court Bench is the first of its kind and is set to be an avant-garde entrant to the world of Mediation. Scheduled to take place at the end of 2021, the competition will bring universities across the world together for an experience unlike any that has been available to students and Mediation professionals before.
The International Investor-State Mediation Competition (IIMC) is an opportunity for university students to build their knowledge and skills in Investor-State Mediation. This is an area of Alternate Dispute Resolution that may potentially dominate the field of Investor-State dispute resolution globally with the rising number of Disputes, especially in the Asia-Pacific region. The first and only of its kind, the competition will contribute to the development of a generation of young, skilled Mediators competent in InvestorState Dispute Settlement (ISDS) by enabling students to learn from the best scholars in the world of mediation to conclusively create future leaders of the field – locally and internationally. By simulating realistic environments, the competition equips the participants with the confidence to explore Investment Mediation as a future career prospect.
We aim to host 24 international teams across the globe who will compete in six rounds that will be judged by expert assessors who are leading figures in the field of mediation.
What is ISM?
Mediation offers a voluntary, flexible and party-driven approach to dispute settlement, wherein the mediator acts as a neutral third party to facilitate the parties’ negotiations by helping each party identify its interests, overcome barriers to settlement, and develop possible settlement options that typically result in a written mediated agreement between the disputing parties.
This process can be applied to Investor-State disputes, wherein mediation is used to resolve conflicts between a private party and a sovereign state. Mediation provides the host States and foreign investors with a high degree of autonomy over the decision-making process thus placing emphasis on harmony and achieving mutually beneficial results for the disputing parties. This facilitates the creation and preservation of strong, persevering relationships between host States and their investors.
Investor-State Mediation is seen in instances such as where a state’s investment incentive policies change, where a state interferes with an investor’s contracts, where the state revokes licenses and permits formerly granted or when a state imposes unforeseen tariffs. Moreover, mediation is a tool that functions complementary to arbitration in the Investor-State context, and can be performed prior to, in parallel to, or even after the arbitration proceedings.
Several initiatives by intergovernmental, public, and private institutions such as the development of procedural rules and guidelines, for example, the ICSID Mediation Rules, the IBA Rules for Investor-State Mediation and the IMI Competency Criteria for Investment Mediators have established a legal framework specifically designed for mediation in the Investor-State context. This is corroborated by efforts of ICSID, CEDR, and UNCITRAL to reform and promote Investor-State mediation globally through research publication and organization of events and training courses.
Some States have steadily encouraged mediation for investor-state disputes as evidenced by the US The Energy Charter Conference that endorsed a Guide on Investment Mediation as “a helpful, voluntary instrument to facilitate the amicable resolution of investment disputes” and actively encouraged parties to consider mediation at any stage in disputes. On their part, the IBA, ICSID, and others have also encouraged the use of mediation.
In 2016, Martin Svatos, a writer for the Kluwer Mediation Blog, put forward the idea that mediation will be fully integrated as a resolution mechanism for investment disputes by the year 2036. In fact, recent remarkable developments such as the adoption of the UNCISAR (The Singapore Convention) illustrate that while 2036 is in the foreseeable future, it is not long before mediation is a primary governing mechanism in Investment Disputes and takes its rightful place alongside the successful use of mediation in various other realms.
Why Investor-State Mediation?
While arbitration has traditionally been the de facto vehicle of choice for resolution, growing interest in conducting mediation in conjunction with arbitration is reflected in the encouragement provided by jurisdictions, economic systems, and international treaties such as the Singapore Convention to incorporate mediation as a mechanism for ISDS.
The use of mediation in Investor-State disputes gives rise to substantial advantages such as the relative time and cost-efficiency, confidentiality and certainty of settlement when compared to the uncertainty of arbitration proceedings.
Most importantly, an invaluable merit of using mediation to resolve Investor-State disputes is the preservation of relationships and room to address non-financial aspects of investment such as reputation and broader policy considerations. Especially in the context of investments provided by governments of developed countries to those of developing countries to develop infrastructure, inability to resolve disputes will not only affect the economic and political spheres but also adversely affect the livelihood of workers making a living through the investments flowing into the primary sector businesses. Mediation cultivates a peaceable and collaborative environment that eliminates the likelihood of alienating the host country and fuels the pace of developing countries like Sri Lanka towards a prosperous future.
Why Sri Lanka?
The practice of mediation in Sri Lanka dates to when the country was still a monarchy and was referred to as ‘Ceylon’ and is practiced extensively on a community level today. In fact, Sri Lanka was one of the first Asian countries to integrate Investor-State conciliation in its treaties with the other Asian states such as Korea, Singapore, and Japan.
In the present day, Sri Lanka’s growth trajectory, the development of major infrastructures such as Colombo Port City, and the country’s key geographical positioning in the 21st Century Maritime Silk Road highlight Sri Lanka’s potential of becoming South Asia’s financial hub and one of Asia’s leading economies by 2040. The expected inflow of business and Foreign Direct Investment (FDI) creates a need for Investor-State Dispute Resolution mechanisms and practitioners who are equipped with the knowledge and skills to execute those mechanisms. This makes Sri Lanka a prime location to introduce, develop and administer the concept of investment mediation.
Head of Mediation
Yalinda de Almeida
Deputy Head of Mediation