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The Global Shift In Investor-State Dispute Resolution Mechanisms

In this era of commercialization and globalization, nations are witnessing a significant expansion in their economic policies and markets, leading to a surge in investments. This influx of investment opportunities has, however, brought about numerous conflicts stemming from various international investment agreements.

As with any human endeavor, disputes are bound to arise and to address these disputes, an investment protection system has been established within these agreements, aimed at resolving disputes among the investor states and the host States where their operations are conducted.[1] To address the needs of citizens abroad and ensure equitable treatment, due process, absence of arbitrariness, and the availability of effective remedies, a system has been devised. By granting these obligations, nations aim to project an investor-friendly image. [2]

India's attractiveness to investors has been inconsistent over time. Since its inception, investor-state arbitration has shown significant progress and has been in active operation. However, like any other mechanism, the investor-state disputes resolution mechanism also required improvements to be more effective.

The introduction of the revised comprehensive International Centre for Settlement of Investment Disputes Rules, 2022 (ICSID) marks a significant milestone as an upgrade from the 2006 rules, which were in need of reform in the way of investment arbitration[3]. In light of these recent ICSID rules, this paper highlights the enhancements made in the Investor-State arbitration process, providing a more comprehensive and forward-looking approach to resolving disputes and addressing the complexities surrounding it.

Historical Antecedents Along With Changing Trends in the FDI Regime:

The ever-changing trade policies of nations and the increasing globalization worldwide have spurred investments beyond national borders, leading to a rise in overall foreign direct investments (FDI) and cross-border investments over the years.[4] With a growing influx of investments from around the globe, the likelihood of disputes has also increased. As time passed, international disputes began to involve not only individuals within territorial borders but also those present in extraterritorial regions and most of the cases involving ICSID rules or investor-state disputes went through the roof between 2013 and 2021, beginning all the way down from 1987.[5]

Consequently, resolving investment cases through litigation and exercising jurisdiction in international courts became a common approach. However, as a more preferable option for commercial disputes, international arbitration emerged due to its acceptability as a mode of dispute resolution, offering faster and less time-consuming results.[6]

In contrast to a National Court, International Commercial Arbitration involves resolving legal disputes with unbiased judges called "arbitrators." This process, known as alternative dispute resolution (ADR), is different from traditional justice methods and aims to maintain competitiveness in the business sector. While such disputes often involve societal interest issues, which are typically absent in the international commercial arbitration sphere, the regulatory web for resolving such investment disputes has borrowed key concepts from the international commercial arbitration regime.

Resolving investor-state disputes may require reconciling theories of public international legal principles along with principles of contract law.[7] The Investor-State Dispute Settlement (ISDS) emerged in its modern state during the 1960s as an exception to the normative rules relating to state-to-state regulation in public international law and has since been included in various bilateral and multinational agreements. Traditionally, intellectual property disputes were not part of ISDS proceedings, but this began to change with the introduction of the North American Free Trade Agreement (NAFTA).[8]
  1. Changing Trends in the FDI Regime and Their Effect on Investment Agreement Disputes:
    With respect to the term investment, at first the treaty is given a priority while interpreting the term investment and later on as enumerated in Article 25 of ICSID convention [9]is made. In Salini v. Morocco[10] the tribunal observed that the necessary elements for the existence of an investment are:
    1. Endowment in terms of assets or money
    2. A specified term of contract of performance
    3. An element of threat
    4. A contribution to the financial growth of the host State
According to the Salini decision, investments wrapped under Article 25 of the Convention shall be considered in light of an objective standard which later termed as Salini test to determine the term investment in distinct matters.[11] When an investor is based in a country (home nation) procure assets in another country (host country) and intends to establish a control over those assets, it is called as a foreign direct investment (FDI). [12]Recent trends shows that emerging market economies have surpassed the USA as a significant source of FDI for the rest of the world, reflecting their growing knowledge and involvement in the global market.[13]

Foreign direct investment significantly impacts the host nation as they consider a loss of political sovereignty as being represented by an increase in reliance on multinational corporations. The host country retains its sovereign rights to regulate FDI and determine how it contributes to development.[14]

In addition to its numerous advantages, a few of them encompass broader and more extensive benefits like facilitating growth in the host nations through the establishment of investment avenues, enabling the sharing of technological expertise, contributing to corporate tax revenue within the host country, and ultimately contributing to the overall inflow of GDP into the nation.[15]

However, establishing an open international financial system to promote economic success for both home and host nation clashes with the host country's limitations on FDI. Consequently, international law has evolved, leading to the creation of international arbitration tribunals that limit the host country's jurisdiction over FDI.[16]

Consolidation of Claims to Avoid Treaty Shopping:

Over the last decade, ICSID has experienced gradual growth in its case backlog. This exponential increase in the figures of arbitration cases brought to the doorstep of ICSID has led to procedural inefficiencies and inconsistent rulings on similar factual and legal issues. [17]

As the caseload continues to rise, there is a higher probability of claims involving the same legal or factual problems. This situation can give rise to two significant challenges. Firstly, if different arbitral courts decide on similar claims, conflicting decisions may occur. As inconsistent judgments have gained more international attention recently, Susan Franck has described it as the "dirty little secret that is becoming less secret by the day" of investment treaty arbitration[18]. The second issue is that allowing similar claims to proceed separately may lead to procedural delays.[19]

Due to the high number of bilateral treaties and even more International Investment Agreements, several treaties are likely to be invoked in the arbitration proceedings to refer to the disputes. Even if the same treaty covers both the shareholders and the funding business, their ability to submit distinct claims may result in multiple courts considering the same claim.[20]

In many areas of law, consolidation has been used as a solution to mitigate these challenges. Consolidation of claims helps address the problem of concurrent procedures, contributes to a consistent interpretation of the law, and reduces the expenses of arbitral proceedings. Consolidation improves coherence and consistency in final arbitral awards, which is particularly crucial in investment arbitration, where previous awards and their decisions do not bind judges and are not appealable[21]. It involves revamping the rights and responsibilities in investment state dispute resolution.[22]

Until recently, the ICSID lacked a method for claim consolidation. Now, with the introduction of the ICSID Arbitration Rules in 2022, the concept of consolidating claims in an investor-state dispute has been introduced. Parties relating to two or more pending ICSID arbitration proceedings may come together to combine or manage such arbitrations.[23]

Additionally, consolidation of such proceedings merges all elements of two or more proceedings, resulting in a special award.[24] There is a requirement that applications for consolidation and arbitration have to be filed in compliance or registered in compliance with the ICSID Convention and must involve the contracting state as well if it pertain to the same contracting state then it has to be combined under the ICSID Arb Rules.[25]

The Implications of Coherent Bilateral Treaties to Avoid Conundrum Between Parties:

Bilateral investment treaties are the contracts entered into among two countries to foster, promote, and securitize investments both the territories. These treaties are considered a crucial tool for internationally safeguarding foreign investments. They address four key aspects: entry, treatment, expropriation of foreign investments, and conflict resolution[26].

The rise in investor-state conflicts and their resolution has impacted the development of bilateral investment treaties. Recently, the challenges in interpreting treaty clauses have increased significantly, necessitating clarification to mitigate the risk of future disputes[27]. The coming of free trade agreements and ancillary laws addressing other forms of economic alignments have also had an impact on this matter.

As a consequence of the investment agreements, the scope of trade treaties has expanded. Bilateral investment treaties have been developed to address concerns such as services, intellectual property rights, and industrial strategy. As the broader implications related to human rights, environment, and health security have started to emerge, bilateral trade accords have been evolved to align with the changing global political and economic conditions. [28]

Investment treaties have to undergo various changes to achieve higher levels of coherence, these changes include incorporating specific non-investment legislations, defining the extent of investment related provisions, and revamping the conflict resolution process. Till these changes are implemented, coherence between bilateral investment treaties and other areas of international law will remain frail. Such infirmness undermines the very motive of international law, which seeks to establish control of law and security for all.[29]

Current Shortcomings in Investor-State Arbitration:

  1. Inconsistency in awards:
    According to Article 34(2) of the UNCITRAL Arbitration Rules[30], "All awards shall be furnished in writing and shall be enforceable against the Parties. All awards must be carried out immediately by the parties. Despite the fact that there are many arbitration rules, none of them define what a "arbitral award" is. The UNCITRAL Model Law Working Group defined it as follows:
    Award indicates a final award that resolves all concerns brought before the tribunal, as well as an additional decision of the arbitral tribunal that concretely resolves any substantive dispute, a concern regarding the arbitral tribunal's competency, or any other procedural question, but only if the tribunal names its decision as an award.[31]

    Consistency fosters predictability and when a legal framework yields unequivocal solutions, the judicial system is deemed consistent, thus elevating its credibility and legitimacy. Undoubtedly, the significance of consistency and prejudiced viewpoints in the context of arbitral decision-making cannot be overstated.

    Irregular interpretations have sown uncertainty regarding the interpretation of key Convention obligations and their future application. Such inconsistencies have sparked apprehensions regarding the integrity and equitableness of arbitration, a method employed to settle disputes encompassing both public and private issues[32].

    Enunciating the process of arbitral decision taking can serve as an essential response to these denunciations, showcasing the efficacy of arbitration as a viable avenue for resolving matters within domestic courts.

    Many facets of human society, including the resolution of conflicts, depend on rational choices. It is important to address concerns regarding the inconsistency in rulings issued by tribunals in different cases where comparable situations and violations led to divergent judgments due to varying assessment methodologies employed by the courts, thus introducing a biased perspective.

    To illustrate, two distinct arbitral tribunals dealing with ad hoc arbitration seated in Stockholm handled the cases of CME v Czech Republic [33]involving intellectual property rights (IPR) and Lauder v. the Czech Republic[34], both governed by the UNCITRAL Arbitration Rules 1976. Despite similar facts, these cases yielded contrasting outcomes, raising questions about the Czech Republic's liability under the corresponding Bilateral Investment Treaties.

    Implicit biases to some extent contributed to the disparities in outcomes. It is conceivable that an arbitrator might empathize with one party's overarching argument while rejecting the rationale behind minor issues, leading to the dismissal of the claim in its entirety. In these scenarios, it may turn advantageous for the party to present its averments broadly, allowing the decision-maker body to rule on a limited degree of interpretation.[35]

    The existence of multiple arbitration courts dealing with similar circumstances increases the potential for conflicting arbitration awards. However, the shared objective should be there to establish uniformity in the interpretation of pertinent principles of investment law, necessitating the creation and implementation of measures to prevent inconsistency. In the case of Saipem v The People's Republic of Bangladesh[36], the arbitral tribunal emphasized the duty of arbitral courts to satisfy "the legitimate expectations of the society of nations and investors towards the presence of the rule of law."

    In contrast, a dissenting viewpoint in the Burlington Resources v Ecuador [37]case argued that arbitrators should decide every case on its individual merits, regardless of jurisprudential trends.[38]Nonetheless, the duty of an arbitrator is to assess a matter on its merits, aiming for justice rather than striving for a prescribed sequence of awards.

    Arbitrators possess substantial discretion in interpreting and incorporating the suitable law to the facts of a given matter. They often incorporate transnational legal principles due to factors like limited oversight, global operations, and diverse legal backgrounds.[39]

    A consistent albeit predictable body of case law can benefit both states and businesses. It can reduce conflicts brought against states by specifying permissible and prohibited actions under investment treaties. Consistent decisions can also eliminate numerous points of contention, leading to more efficient and cost-effective arbitration proceedings. Adhering to the Rule of Law principles of responsible and consistent decision-making, along with the increased persuasive authority of decisions, would undoubtedly enhance the arbitration system and benefit all stakeholders involved.[40]
  2. Limiting the Use of Investor-State Arbitration to the Involved Party-
    The question of whether excessive investment access should be curbed has two main aspects. Firstly, the ability to use a neutral international system for resolving investor-state disputes through ISDS depends on states' ongoing willingness to engage in this process, which is more of a political matter than a legal one. Secondly, access to ISDS is influenced by how tribunals interpret the language in investment treaties. So far, efforts to restrict investor access have been gradual and limited to specific cases[41]. This approach aims to narrow the circumstances in which investors can utilize ISDS, which can be achieved by:
    1. limiting the types of issues that can be raised in ISDS claims;
    2. narrowing the scope of investors eligible for treaty benefits; and
    3. requiring investors to exhaust local legal remedies before resorting to international arbitration.
    A more extreme strategy would be to completely abandon ISDS and return to State-to-State arbitration procedures, as some recent treaties have done. Certain countries have implemented policies that exclude certain types of claims from being considered in arbitration. For instance Belgium has excluded certain matters from arbitration, particularly those involving the dissolution of long-term exclusive distributorship contracts where Belgian law is not the applicable law.[42]

    This could lead to ISDS being used as a last resort, only if investors have exhausted domestic options or can prove that domestic courts are ineffective or biased. However, it's important to note that the requirement to exhaust local remedies is a fundamental condition for access to international judicial forums in general, this requirement is outlined in the ICSID convention, which establish the jurisdiction and prerequisites for international arbitration.[43]

    Nevertheless, directly limiting parties' access to ISDS through various means undermines the original purpose of ISDS. Such limitations could diminish the effectiveness of ISDS, which was established to depoliticize investment disputes and offer investors a fair review by an independent, unbiased, and qualified tribunal.
  3. Concerns Over Exorbitant Fees and Choosing the Arbitrator:
    Disputes in the current settlement system are resolved through an ISDS tribunal set up specifically for that dispute. However, the parties involved (the claimant-investor and the respondent-State) have a significant say in the tribunal's composition. The rules governing the investor-state arbitration process allow the disputing parties to agree on method of selecting arbitrators and the number of arbitrators.

    This approach lets parties pick arbitrators they believe are best suited to handle their conflicts, which is seen as making arbitration flexible and appealing[44]. Article 57 of the ICSID Rules permits the party disputing the appointment of an arbitrator to challenge the same on the grounds of manifest lack of qualities.[45]

    There are different ways to appoint arbitrators. One option is a hybrid selection procedure where each party in the ISDS dispute picks a judge, and a neutral authority selects the chairperson. Another option is to assign an authority to nominate all members of the tribunal (two co-arbitrators and the chairman). Other possibilities include the appointing authority collaborating with the disputing parties to choose ISDS panel members, with the final decision resting with the appointing authority.[46]

    Although all tribunal members must be unbiased and independent, concerns have arisen about potential bias or unintentional favoritism towards the appointing party. This has raised worries about ISDS arbitrators.[47] Specific concerns have emerged due to each party's perceived inclination to choose individuals sympathetic to their side. The arbitrators' desire to be reappointed for future cases and their frequent role-switching (acting as judges in some cases and lawyers in others) amplify these concerns.
  4. Cost and Time-Intensity of Arbitrations
    Arbitration fees have become a more widespread issue in investor-state arbitration, mainly because there is no specific provisions in the relevant arbitration rules for this. It means arbitrators have significant discretion in determining and dividing costs among the involved parties. While most arbitration rules outline how institutional, administrative, and panel fees are established, the allocation of costs between parties is left to the discretion of arbitrators and the parties themselves[48].

    Chapter VI of the ICSID Convention and the Administrative and Financial Regulations oversee the expenses of an ICSID case. In investor-state disputes, there are two types of costs: party costs, which include legal counsel fees, witness and expert expenses, travel costs, transcripts, and related expenses; and arbitration or tribunal costs, which encompass tribunal fees, administrative costs for managing arbitral procedures, and other expenditures. In ICSID arbitration, a panel determines the costs and expenses of its members within the limits set by the Administrative Council, in consultation with the Secretary-General.[49]

    Investors are worried about the high expenses, particularly those with limited financial capabilities.[50] The average costs per side in an investor-state dispute situates for respondent state entities are around US$4.7 million, according to cost trends, average expenses for investors are more than US$6.4 million.[51]. This places a significant burden on the resources of any nation, especially those with limited means. Even if a government prevails, courts have not typically ordered the claimant investor to cover the respondent's costs.

    Aside from cost considerations, recent cases have taken a year and a half longer to conclude than cases decided before 2017. While there is a slight increase in the median duration, ICSID procedures generally last around four years and eight months, slightly longer than UNCITRAL proceedings. However, the median duration suggests that the variation in length is not significant.[52] Given the financial strain on some nations and the time investment required to obtain an arbitral award, the current challenges in streamlining the investor-state dispute mechanism are the high costs and time involved.

Paradigm Shift to Contractor Based Investor-State Disputes via ISDS

International investment treaties encompass various provisions for resolving disputes between investors and states, which range from limited jurisdiction over specific compensation matters to extensive options for arbitrating any case, whether rooted in contracts or treaties. These dispute resolution clauses in international investment treaties (IIAs) have become a crucial aspect of the security guaranteed by such treaties, particularly since the inception of treaty arbitration.

Initially, bilateral investment treaties (BITs) primarily emphasized the substantive standards of treatment, encompassing principles like fair and equitable treatment, comprehensive security and protection, non-discrimination (national and most favored nation treatment), and safeguards against uncompensated expropriation. However, the prominence of investment arbitration in the past two decades has underscored the importance of having an effective mechanism in place.[53]

Yet, the efficacy of the direct or hybrid arbitration system, known as investor-state dispute settlement (ISDS), which facilitates resolution between foreign investors and host countries, has been subject to increased scrutiny. [54]Critics have raised concerns that ISDS may unduly favor investors and curtail domestic regulatory authority. Consequently, some nations have initiated the process of exiting the system by expressing disapproval of the ICSID Convention.

The determination of the types of conflicts to be resolved through ISDS should ultimately align with the objectives of the Contracting Parties. BITs and IIAs are evolving to adopt a more "reciprocal" status due to the changing landscape of global investment flows, both in terms of structure and substance. The likelihood that participants in IIAs could find themselves on either side of investment arbitration�either as a host state defendant or an investor's home state no longer directly involved�has increased.[55]

Following their withdrawal from the ICSID Convention, certain states have referred to committing to a contract-based agreement that stipulates the terms governing investor-state arbitration proceedings.
  1. Changes in Investor-State Arbitration Through ICSID Rules 2022 to Make Dispute Resolution More Efficient
    Amendments brought in the arena of ICSID Arbitration rules.

    The ICSID arbitration amended rules was a much needed move and 2022 amendments reflected some of the pivotal changes in the direction of streamlining the overall process of dispute resolution in international investment arbitration. Some of the changes or amendments include.
  2. Third-Party Funding Agreements and Disclosure Requirements
    The eagerly anticipated revisions to the ICSID Rules were implemented in 2022, heralding a new era of changes in the landscape of international arbitration. A key objective underlying these updated ICSID Rules is to enhance transparency across various aspects of ICSID procedures, a trend that aligns with the prevailing direction observed in arbitration rules worldwide.

    Of noteworthy significance is the concept of third-party funding, a form of non-recourse financing wherein an external entity�typically a specialized business with no direct involvement in the dispute�undertakes the financial burden of an arbitration party. The new rule is requiring a disclosure compliance in the form of a written notice to be submitted to the secretary-general of a non-party from which the party is acquiring funds.[56] While initially appearing as a resource primarily tailored for financially disadvantaged parties who might otherwise struggle to afford arbitration costs, third-party funding has also emerged as a viable tool for financially robust entities aiming to optimize cash-flow management through accessible financing[57].

    Furthermore, the introduction of third-party funding is comprehensively addressed in the newly revised ICSID Arbitration Rules under Rule 14(1).[58] The latest Rule 14(4) of the 2022 ICSID Rules stipulates that "The Tribunal may order disclosure of additional information regarding the funding agreement and the non-party providing funding." This provision facilitates enhanced transparency within third-party funding arrangements.

    Under these fresh regulations, parties involved in ICSID Arbitration are now obligated to submit a written notice revealing the identity and contact details of any external entity from which they have received funds to support or defend their proceedings, whether directly, indirectly, through a donation, grant, or in exchange for outcome-contingent compensation (referred to as "third-party funding"). Should the funding source be a legal entity, the notice must extend to disclosing the individuals and entities that possess and oversee said legal entity.[59]

    This newly imposed obligation extends to requiring the party benefiting from third-party funding to divulge the identity of its co-contracting party under the financing arrangement, along with the ultimate beneficial owners of said contracting entity.[60]

    Furthermore, as part of the revised rule framework, an ICSID tribunal is empowered to seek additional details regarding the substance of any funding arrangement once the funding notification has been submitted, a provision that contributes to streamlining the arbitration process and rendering it more efficient.
  3. Publication of final awards and the pronouncements on annulments
    The new amendments enlarged the precedential basis by paving the way for the publication of final awards and also the pronouncements on the annulments of the awards. Rule 62 of the revised ICSID arbitration rules talks about the provision for the publication of awards and the rulings on the annulments as well within the period 60 days with the deemed consent of the parties if no objection is received of such publication. [61] Such a provision in the revised rules strengthens the precedential database by making the rulings on the awards set in stone for the posterity. The ICSID rules of 2006 marks a juxtaposition from 2022 rules as previously there was only the provision of publication the legal reasoning of an award by the centre.[62]

    Impleadment of the non-party in the proceedings:
    The revised rules in Rule 67 talks about the impleadment of the non-disputing parties that any person who is not a disputing party may file a written submission during the proceedings allowing them the opportunity to be heard as an interested party. Such a party on the discretion of the tribunal may be allowed to file a written submission on the ground that if the party has a significant interest or any sort of affiliation in the matter. The tribunal also has the powers to allow such party to file a submission within 30 days or to deny it.[63] In addition to this the tribunal has also been conferred the powers by the revised rules to allow the parties to observe the hearings[64] of the tribunal unless any party to the subject matter of the dispute objects to it by virtue of Rule 66[65] of the amended rules.

    Introduction of provisional Kum interim measures:
    The revised rules introduced the provisions of interim measures in the arbitration space to safeguard the interests of the parties by giving them the opportunity to approach the tribunal in case where there's an apprehension of imminent harm or prejudice likely to be caused during the arbitral process.[66] The tribunal is even empowered to recommend or take such measures on its own when it deems it necessary to safeguard the interests of parties.[67] In addition to that there's a provision in the revised rules which have given the liberty to the parties raising a dispute to bifurcate their claims in the initial stage.[68]
  4. Guidelines on Cost Allocation and More Flexibility to Order Security for Costs-
    Cost awards carry significant importance within ISDS, regardless of whether the award requires the defendant state to pay compensation. The amended rules casts an obligation on the parties to the proceedings to conduct in good faith and in an expedient manner to foster the timely passing of award.[69] Prior to 2022, the ICSID Rules lacked a predefined standard for cost allocation, granting the tribunal the discretion to decide how expenses should be divided. Additionally, some regulations indicated that the tribunal could consider party conduct when determining cost distribution[70]. However, the 2022 amendments to the ICSID Arbitration Rules and other associated regulations have addressed these complexities.

    The introduction of the new ICSID rules, particularly Rule 50 and 52, has resolved the cost-related challenges. Rule 50 in the 2022 Rules presents a clear and comprehensive outline of what constitutes "costs." This encompasses various elements such as legal expenses of the parties, expenses of the tribunal and tribunal-appointed experts, and administrative and direct costs of ICSID. Rule 52(4) mandates that the tribunal's cost should be explicitly detailed in the award, along with explanations. Additionally, Rule 52(3) empowers tribunals to issue interim decisions regarding expenses, either based on party requests or their own initiative.

    In a different context, the 2022 Rules establish limitations on the tribunal's jurisdiction. When the tribunal determines that a claim lacks legal substance according to Rule 41(3), the prevailing party is entitled to its "reasonable costs," unless the tribunal finds "special circumstances" warrant a different distribution of costs as per Rule 52(2). Rule 52(1) of the 2022 Rules confines the discretion of ICSID judges in awarding costs.[71] Furthermore, Rule 53 introduces a dedicated provision on security for costs, which grants the authority to tribunals to grant security in relation to claims and counterclaims. This provision, absent in the 2006 rules, broadens the scope of costs under the new regulations.
  5. Mediation & Introduction of New Expedited Arbitration Procedures
    The Arbitration Rules establish a more efficient process that parties can choose to use. Chapter XII of the revised ICSID Arbitration Rules introduces the idea of Expedited Arbitration, allowing parties to speed up the process by mutual agreement. This means that the first session occurs within 30 days of forming the panel. Parties can also decide to opt out of the expedited process using Rules 75-86 in the new ICSID Rules.

    The expedited process has specific requirements, like the claimant's submission within 60 days of the initial panel session, as per Rule 81. If the accelerated process isn't used, the 2022 Arbitration Rules state that an award should be given as soon as possible but within 240 days after the last filing, under Rule 58.[72] Moreover, the consent of the parties is quintessential to commence the expediated arbitration proceedings as per the revised rules. [73]

    Expedited arbitration isn't automatic; it needs both parties' consent, and they can withdraw together. If one party requests it, a tribunal can decide to stop the expedited process [Rule 86(2)]. While most IIAs also allow arbitration for dispute resolution (like ICSID, ICSID Additional Facility, or other institutional or ad hoc arbitration), there have been recent proposals for an international investment court (or a multilateral investment court system).[74] However, these ideas haven't been included in the 2022 rules.

    Rule 22 of ICSID Arbitration sets a faster timeline for parties to challenge, with a specific 21-day limit for disqualification petitions, replacing the previous quick requirement. ICSID introduced expedited arbitration to stay competitive in global arbitration services by offering a quicker option.

    Besides expedited arbitration, ICSID introduced new Mediation Rules in 2022 for resolving investment treaty disputes, adding alternative methods to ISDS. The main steps in investor-State mediation are: (i) requesting mediation; (ii) appointing a mediator; (iii) initial statements; (iv) first mediation session and protocol; and (v) concluding mediation.[75]

    According to Rule 2(1) of the Mediation Rules, two conditions must be met to pursue mediation: the dispute involves a state or regional economic integration organization, and the parties must agree in writing to mediate under the Rules.[76] The use of mediation in investment disputes largely depends on whether the underlying investment treaty allows it, but parties can still agree to ad hoc mediation. Combining mediation with arbitration can be beneficial, even though it may add complexity and cost, as both processes complement each other, benefiting parties who agree to use ISDS for dispute resolution.
  6. The Predictable Future:
    1. AI's Role in the Future Investment Arbitration
      The fundamental concept behind artificial intelligence (AI) is that a computer program can replicate all aspects of learning and intelligence by closely observing them. Throughout history, AI has played a role in facilitating legal processes, safeguarding human rights, and upholding societal values. For instance, AI has simplified and expedited legal tasks such as conflict resolution.

      In the present era, the landscape of dispute resolution is undergoing a notable transformation, marked by the emergence and increasing integration of AI technologies. The potential for AI to revolutionize arbitration is a plausible projection for the future. At present, AI is instrumental in processing extensive volumes of data pertinent to arbitration cases, extracting relevant information, and streamlining the analysis of complex legal matters. [77]This efficiency significantly saves time and resources during case evaluation. Additionally, AI can streamline the arbitrator selection process, considering arbitrators' expertise in various domains of disputes.[78]

      AI tools operating at different levels have proven valuable in the arbitration domain. For instance, Arbitrator Intelligence utilizes award data to generate AI Reports, and Arbitrator Intelligence Surveys accurately assess arbitrators' tendencies based on past decisions in diverse stages of arbitration. This, along with tracking arbitrators' relevant expertise, serves as a reliable resource for selecting arbitrators. Unlike human arbitrators, AI is less susceptible to cognitive biases and emotional influences, minimizing errors in decision-making.[79] The possibility of making mistakes in evaluating, reviewing, interpreting, and making decisions is decreased because the AI works solely on the information rather than based on human feelings.[80]

      However, before incorporating AI into dispute resolution processes, a comprehensive assessment should be conducted to ensure a sufficient level of familiarity and knowledge across the board. Interaction challenges between humans and AI should also be addressed to facilitate seamless utilization. AI is described as a "fourth party" facilitator in the structure of online dispute resolution, implying a more complex role than a mere tool.[81] It is crucial to strike a balance when utilizing AI tools in decision-making, as undue interference can pose challenges to the arbitration process. While AI can aid in researching and summarizing legal matters, processing submissions, and cross-verifying judgments, it should be carefully controlled to ensure due process and avoid violations of public policy and procedural requirements.[82]
    2. Blockchain Technology in the Investor-State Arbitration
      Blockchain technology has transitioned from a speculative concept to a tangible presence, impacting modern culture and the legal domain. The utilization of smart contracts and blockchains can revolutionize how we manage documents and resolve disputes. Consequently, it is essential to integrate, apply, and correlate these concepts with arbitration to establish a more streamlined, cost-effective, and automated framework.

      The adoption of blockchain in arbitration is rooted in the belief that this technology can enhance the efficiency, security, and scalability of data handling for arbitral proceedings, primarily through the utilization of smart contracts. The UNCITRAL Convention on Electronic Communications in International Contracts (2007 Convention), specifically in Articles 6 and 18, validates the legitimacy of on-chain arbitration by permitting electronic data records and transfers in arbitration, lending legal validation to on-chain arbitration processes.[83]

      Employing blockchain technology, various stages of arbitration, such as arbitrator appointments, party pleadings, including claims and evidence recording, and award preparation, can be facilitated.[84] While blockchain ensures robust security, data privacy becomes a significant consideration, particularly when an external third-party acts as an oracle in conflict resolution, potentially deviating from General Data Protection Regulation (GDPR) guidelines, including the "right to be forgotten" requirement.[85]

      Although blockchain technology has lost some of its novelty over the years, its practical implementation has been gradual due in part to uncertainties about network operations. While many aspects of blockchain processes can be automated, participants are cautious about the risks linked to incomplete contractual agreements.[86] While there is room for on-chain applications in the market, only a limited number of effective disagreement protocols exist.[87]

      The future trajectory of blockchain-based arbitration hinges on the comprehension and readiness of arbitration organizations and experts to harness blockchain's potential. Their willingness to provide arbitration and alternative dispute resolution (ADR) services online and beyond will shape the future landscape of blockchain arbitration.[88]
    3. Mediation as an Alternative:
      International commercial arbitration stands as an efficient selection for resolving cross-border business disputes. Nonetheless, this framework faces scrutiny, prompting discussions about necessary modifications to address concerns like sluggishness, escalating costs, and the increasingly litigious nature of the proceedings. In order to enhance effectiveness in the global realm of commercial dispute resolution, it becomes crucial to introduce alternative mechanisms, such as mediation and conciliation, or hybrid approaches like Mediation-Arbitration for dispute resolution.

Mediation, as a dispute resolution method, exhibits various variations that can significantly vary based on fields of activity, practices, cultures, and individual practitioners' roles. Despite these disparities, mediation offers a dispute resolution avenue that:
  1. Involves a neutral mediator aiding parties in gaining clearer insights into their case's strengths and weaknesses;
  2. facilitates moving away from adversarial stances and entrenched positions;
  3. empowers parties to collaboratively arrive at mutually acceptable solutions through consensus-based decision-making;
  4. nurtures ongoing relationships; and
  5. generates solutions that may not have been attainable without mediation.
Like arbitration, mediation ensures confidentiality during dispute settlement.[89]

Furthermore, the emergence of the hybrid approach, known as Med-arb, combines the strengths of both Mediation and Arbitration. This fusion presents a potent duo for achieving effective amicable settlements. If an arb-med-arb strategy can seamlessly integrate the advantageous aspects of Mediation into international business arbitration without compromising the integrity of the arbitration framework, its adoption should be considered. By allowing parties to address their differences early in the arbitration process, embracing med-arb has the potential to address concerns that international commercial arbitration has become sluggish, costly, and closely resembling lawsuits.[90]

The investor-state dispute resolution system has made significant progress, particularly with the introduction of the new 2022 rules. These rules aim to enhance efficiency and participant-friendliness, enabling more effective exercise of rights and ensuring transparent management of investment disputes. The recent reforms have also contributed to solidifying the international investment dispute landscape by formalizing provisions that were previously absent from legal statutes.

Considering the trajectory of ISDS, it is apparent that the future strives for a more efficient approach in terms of cost and time. This trend points towards Mediation as the future of Alternative Dispute Resolution (ADR) worldwide. Mediation's adaptable nature and overall effectiveness have positioned it as a pivotal method in dispute resolution. The updated rules indicate a shift towards more effective techniques, including Mediation and Conciliation, which are expected to take precedence over arbitration due to their versatility. This evolution is driven by their ability to offer flexible solutions compared to the comparatively time-consuming and costly alternative of arbitration.

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