USCIB Senior Advisor Shaun Donnelly was a panelist in a two half-day virtual Forum on Investor-State Mediation December 8-9 organized by the British Institute of International and Comparative Law (BIICL). The conference brought together international arbitrators, mediators, academics and investment experts. Donnelly’s panel, wrapping up the conference, was focused on “Future of ISDS Mediation: Climate Change, COVID-19 and the Potential Surge of Investor State Disputes.” ISDS (Investor-State Dispute Settlement) is the arbitration enforcement provisions commonly found in international investment agreements.
Donnelly, the lone business voice on a panel with ISDS skeptics from NGOs and academia, emphasized the importance of private sector investment, including Foreign Direct Investment (FDI), to drive global economic recovery, growth, trade and jobs.
“Investment agreements with strong investor-state dispute settlement provisions can be key to incentivizing investment flows,” said Donnelly. Donnelly also challenged critics to show any recent surge of ISDS cases, noting investors are generally acting responsibly and assisting host governments in dealing with the daunting health and economic crises. He endorsed serious mediation efforts as an additional tool, but not as a substitute for, to support strong investment agreements in resolving disputes.
“If early, time-limited, voluntary mediation can solve problems, resolve disputes, cut costs, and speed decisions, great!” he added. “I enjoyed the opportunity to participate in a very interesting, very international conference focused on mediation as potential tool to help resolve investment disputes,” Donnelly said. “It was important for business voices to be there with lawyers, arbitrators and mediators, as well as NGO activist and academics. We had a good exchange. I think effective mediation could be a useful tool in some cases but it has to be voluntary for the parties and should not be seen as an excuse for radical revisions to international investment agreements and established dispute settlement mechanisms.”