The Investment Treaty Arbitration Review: Investor-State Mediation

I Current landscape

For the purposes of this chapter, we consider investor-state mediation in its broadest sense to include not only the mediation processes prescribed in investment treaties, but also the mediation settlement processes commenced voluntarily with consent of the parties involved even when there are no explicit requirements under the relevant investment treaties.

For the past 10 years, the following international institutions and non-governmental organisations have been actively promoting the development of investor-state mediation.

II International centre for settlement of investment disputes

i New ICSID mediation rules (2022)

On 15 June 2021, the International Centre for Settlement of Investment Disputes (ICSID) proposed its new stand-alone rules for mediation in investment disputes as part of its Working Paper #5,2 a comprehensive amendment of its rules and regulations for ICSID Convention and ICSID Additional Facility proceedings. ICSID Member States adopted these rules on 21 March 2022, which will come into effect on 1 July 2022.3

Scope of application

Rule 2(1) provides that the ICSID Secretariat 'is authorised to administer mediations that relate to an investment and involve a state or an REIO [regional economic integration organisation], and which the parties consent in writing to submit to the Centre'.

Under Rule 2(2), reference to a state or an REIO includes 'a constituent subdivision of the state, or an agency of the state or the REIO' and the state or the REIO 'must approve the consent of the constituent subdivision or agency' that is a party to the mediation as stated above, 'unless the state or REIO concerned notifies the Centre that no such approval is required'.

Accordingly, these ICSID mediation rules provide states and investors with broad access to investment mediation facilities without the limitations applicable to ICSID Convention or Additional Facility arbitration and conciliation proceedings.

In practice, these Mediation Rules may be used as a stand-alone process, or may be combined with other processes such as 'med-arb', 'arb-med', or 'arb-med-arb'. The mediation may be conducted prior to an arbitration (e.g., following a multi-tier clause) or with a parallel ICSID arbitration. If full settlement is reached in the mediation, parties may agree to discontinue arbitration, or resume arbitration and request the arbitral tribunal to incorporate the mediated settlement agreement into the arbitral award. If partial settlement is reached, parties may continue to arbitrate only those remaining issues in dispute.

ICSID mediation process

The key steps and provisions under the newly proposed ICSID Mediation Rules are as follows.

Request for mediation

The mediation process commences upon the filing of a request for mediation under Rules 5 and 6.

Rule 5 applies to the parties who have agreed in writing to mediate. In this case, any party that wishes to initiate a mediation must file a request with the Secretary General and pay the lodging fee, as published in the schedule of fees. A request 'may be filed by one or more requesting parties, or filed jointly by the parties to the mediation'.

Rule 6 applies to the parties who have no prior written agreement to mediate. In this case, any party that wishes to initiate a mediation must file a request with the Secretary General and pay the lodging fee, as published in the schedule of fees. The request must comply with the same requirements as in Rule 5, Paragraph (3), points (a) to (h) and Rule 5, Paragraph (4). In addition, requests must (1) 'include an offer to the other party to mediate pursuant to these Rules' and (2) 'request that the Secretary-General invite the other party to advise whether it accepts the offer to mediate'.4

Appointment of one mediator or two co-mediators

Once the parties have agreed to mediate (with or without the assistance of the ICSID Secretariat), they file a request for mediation, which is registered (Rule 7). The next step is the selection and appointment of the mediator (Rules 12 to 14).

The mediator is appointed either by agreement of the parties or by the ICSID Secretary General upon request of the parties.

Rule 13, Paragraphs (1) and (2) state that there must be either one mediator or two co-mediators, each of which must be appointed by agreement of the parties. If the parties do not advise the Secretary General that they have agreed on the number of mediators within 30 days of the date of registration, one mediator must be appointed by agreement of the parties.

The authors are of the view that parties should be advised and encouraged to take full advantage of appointing two co-mediators from diverse backgrounds to facilitate settlement in investment mediation.

Rule 13, Paragraphs (3) and (4) state that the parties may jointly request the Secretary General's assistance with appointing a mediator at any time, and that if the parties are unable to appoint a mediator within 60 days of the date of registration, either party may request that the Secretary General make the appointment. In such cases, the Secretary General 'shall consult with the parties as far as possible on the qualifications, expertise, nationality and availability of the mediator and shall use best efforts to appoint any mediator within 30 days of receipt of the request to appoint'.5

Initial written statements by parties

Rule 19 provides that, after the appointment of the mediator (or mediators), each party must file a short written statement with the Secretary General that describes the issues in dispute, and sets out the party's views on those issues and on the mediation process. The statements must be filed within 15 days of the date on which the Secretary General transmitted the request (as required under Rule 15) or another period as established by the mediator after consulting the parties. Whatever period is agreed, the filing of statements must occur before the first session. 'The Secretary General shall transmit the initial written statements to the mediator and the other party.'

First session and the mediation protocol

Rule 20 provides that the mediator must hold a first session with the parties 'within 30 days of the date of the transmittal of the request pursuant to Rule 15, or such other period as the parties may agree', and that 'the agenda, method and date of the first session must be determined by the mediator after consulting with the parties'.

When preparing for the first session, the mediator may have joint or separate meetings with the parties. At the first session, the mediator must establish a protocol for how the mediation will be conducted (mediation protocol), having consulted the parties on procedural matters. Rule 20(3) provides a useful list of matters for parties and mediator to consider and to address in the mediation protocol.

Rule 20(4) suggests that at the first session, or within another period as established by the mediator, each party must (1) 'identify a person or entity authorized to negotiate and settle the issues being mediated on its behalf', and (2) 'describe the process that would be followed to conclude and implement a settlement agreement'.

It is important to note that Rule 21 provides that the mediator must conduct the mediation according to the agreed mediation protocol and must consider 'the views of the parties and the issues being mediated'.

Moreover, pursuant to Rule 21, the mediator may request further information or written statements from the parties or, with the parties' consent, seek advice from an expert. Furthermore, at the parties' request, the mediator may make recommendations to resolve one or more of the issues in dispute.

Termination of the mediation

Rule 22 provides for five grounds for termination of the mediation:

(a) a notice from the parties that they have signed a settlement agreement;
(b) a notice from the parties that they have agreed to terminate the mediation;
(c) a notice of withdrawal by any party, unless the remaining parties agree to continue the mediation;
(d) a determination by the mediator that there is no likelihood of resolution through the mediation; or
(e) fulfilment of the requirements of Rule 13(5).6

Other important considerations

Other important considerations for the parties involved in the ICSID Mediation Rules include the costs (Rule 9), confidentiality (Rule 10) and without prejudice provision (Rule 11), although the parties may agree to modify the application of any of the ICSID Mediation Rules other than Rules 1 to 7, pursuant to Rule 3(2).

ii ICSID background paper on investment mediation (2021)

In July 2021, after publishing its proposed new mediation rules, ICSID published a Background Paper on Investment Mediation (the ICSID Background Paper)7 and an Overview of Investment Treaty Clauses on Mediation (the ICSID Overview) (see below).8

The ICSID Background Paper provides explanations and answers to a long list of general questions and topical issues concerning the proposed new mediation rules. It addresses some fundamental questions, including the following:

  1. What is investment mediation?
  2. What are the differences between ICSID conciliation and ICSID mediation?
  3. What factors should be considered when assessing the suitability of mediation?
  4. What is co-mediation and when is it suitable?
  5. What is the role of the parties in a mediation?
  6. What is the role of lawyers in a mediation?
  7. What is the role of experts in a mediation?
  8. Do non-disputing parties have a role in mediation?

iii ICSID Overview of mediation provisions in investment treaties (2021)

The ICSID Overview, on the other hand, reviews current treaty provisions that address investor-state mediation and other means of resolving disputes amicably. It is based on 'an extensive survey of existing dispute resolution clauses in bilateral investment treaties, free trade agreements and other treaties, and dispute settlement provisions in model treaties'. The 'treaties and model clauses surveyed were selected to ensure the inclusion of a broad range of dispute clauses from different time periods and geographical regions, as well as all known clauses that provide for mediation in some form'.9

It identified five main categories of clauses, each of which includes amicable dispute resolution methods:

• Clauses with an amicable settlement period and, potentially, a bare direction to seek “amicable settlement” prior to the institution of arbitration;
• Clauses that expressly permit mediation or other specified amicable dispute resolution mechanism prior to arbitration;
• Clauses affirmatively encouraging the use of mediation or other amicable dispute resolution mechanisms in the amicable settlement / “cooling off” period;
• Clauses mandating mediation or other amicable dispute resolution mechanisms prior to arbitration;
• Clauses permitting mediation at any point in time (i.e., stand-alone mediation).10

It further analysed issues concerning (1) written notice requirements, (2) the response to, or favourable consideration of, a request for mediation or other amicable dispute resolution, (3) designated agency provisions, (4) without prejudice provisions and confidentiality, and (5) the relationship between mediation and other proceedings. It also highlights a number of matters that may be considered when drafting provisions for mediation in the context of investment dispute resolution clauses.

III United Nations Commission on International Trade Law

i The Singapore Convention on Mediation (2018)

The United Nations Convention on International Settlement Agreements resulting from Mediation,11 also known as the Singapore Convention on Mediation (the Convention), was adopted in December 2018.

Scope of application

The Convention 'applies to an agreement resulting from mediation and concluded in writing by parties to resolve a commercial dispute (settlement agreement) which, at the time of its conclusion, is international' (Article 1.1).

The Convention does not apply to settlement agreements (1) concluded 'to resolve a dispute arising from transactions engaged in by one of the parties (a consumer) for personal, family or household purposes', or (2) in respect of 'family, inheritance or employment law' (Article 1.2).

Furthermore, the Convention does not apply to settlement agreements (1) 'that have been approved by a court or concluded in the course of proceedings before a court', or 'that are enforceable as a judgment in the State of that court', and (2) 'that have been recorded and are enforceable as an arbitral award' (Article 1.3).

The Convention, however, does not otherwise define 'commercial dispute' for the purpose of the Convention. The authors are of the view that the Convention does not intend to apply to investment mediation settlement agreements.

ii UNCITRAL notes on mediation (2021)

In addition to the Singapore Convention on Mediation and the Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation (2018), the United Nations Commission on International Trade Law (UNCITRAL) has also published its explanatory text, titled UNCITRAL Notes on Mediation (2021)12 (the Notes).

The Notes set out a list of matters that are relevant to mediation, with brief descriptions. The aim of the Notes, which focus on international mediation, is provide a general guide for all mediators and parties to disputes.13

The Notes provide some common framework for parties in better understanding mediation but do not impose any legal requirements binding on the parties or the mediator, and are not suitable to be used as mediation rules.

In line with the other two instruments of the UNCITRAL mentioned above, the Notes do not provide any clarification on the definition of 'commercial dispute/mediation' and do not seem to address particular issues concerning investment mediation.

IV Energy charter treaty

i The ECT guide on investment mediation (2016)

In 2016, the Secretariat of the Energy Charter Treaty (ECT) established a Conflict Resolution Centre to provide assistance and support for the use of good offices and mediation in both investor-state and state-to-state disputes under the ECT. The Energy Charter Conference endorsed a Guide on Investment Mediation (the ECT Guide).14

The ECT Guide was prepared with the support of ICSID, the Arbitration Institute of the Stockholm Chamber of Commerce, the International Court of Arbitration of the International Chamber of Commerce (ICC), UNCITRAL and the Permanent Court of Arbitration. The ECT Guide states that its purpose is to:

(i) explain the mediation process in general (ii) facilitate tips and (iii) explain the role of the Energy Charter Secretariat (ECS) and other institutions. The aim is to have an explanatory document that could be voluntarily used by governments and companies to take the decision on whether to go for mediation and how to prepare for it.

Mediation as part of the ECT dispute resolution mechanisms

The ECT Guide encourages parties to seek amicable resolution of investment disputes and resort to investment mediation at any point in time.

Article 26.1 of the ECT states that investment disputes concerning breaches of obligations under Part III of the treaty 'shall, if possible, be settled amicably'. The ECT Guide points out that the ECT itself does not specify the mechanisms that could be used to achieve this with a cooling-off period of three months, leaving that choice to the agreement of the parties.

Under Article 26.2 of the ECT, 'a party to the dispute needs to “request” amicable settlement before proceeding towards international arbitration or the domestic courts'. According to the ECT Guide, based on arbitral awards under the ECT available to date (i.e., by document CC560, dated 30 June 2016), although there was no duty to mediate in Article 26.1 of the ECT, 'parties need to seriously attempt to reach an amicable settlement'.15

The Mohammad Ammar Al-Bahloul case16 was an exception to this requirement, however. The arbitral tribunal in the case considered that because the state had failed to show any willingness to achieve an amicable settlement, it was not necessary to comply with the three-month cooling-off period (see ECT Guide, 2.1).

If a dispute is not settled amicably within the three-month cooling-off period, Article 26.3 of the ECT expressly mentions conciliation (though not defined) as one of the options the investor could choose after the three-month cooling-off period.

Although Article 26 of the ECT does not mention any specific conciliation rules, Article 26.4.a refers (among other options) to the ICSID Convention and ICSID Additional Facility Rules; thus, the ECT Guide considers that there is an express reference to ICSID conciliation.

The ECT Guide helpfully set out that, based on publicly available information, there has been a settlement agreement in eight investment cases,17 of which at least three were embodied in an award and are publicly available.

Assessing and preparing for investment mediation

Any party to an investment dispute arising under the ECT may suggest using mediation, either directly to the other party or through a neutral third party, including the Energy Charter Secretariat (ECS).

The ECT Guide helpfully provides a checklist to assess the usefulness of mediation for a particular dispute, with the parties considering whether:

• both parties prefer to keep control over the outcome of the dispute;
• the monetary costs of pursuing litigation or arbitration are too high in comparison with what a party can expect to recover by a decision in its favour;
• a fast resolution is of the utmost importance;
• maintaining a relationship is more important than the substantive outcome;
• there is no deep personal hostility and distrust between the parties;
• parties do not require interim relief;
• parties do not just seek quantum or a specific technical issue;
• matters of fundamental principle are not at stake;
• both parties can involve their respective decision-making authorities;
• a party would seek some form of non-monetary relief such as an apology, a public statement or acknowledgment to third parties...;
• neither side is certain that it will prevail in litigation or arbitration.

The ECT Guide further sets out three major practical steps to prepare for investment mediation: (1) logistics; (2) documents; and (3) preparing your team.

In providing guidance on who should attend the investment mediation process, the ECT Guide suggests that, in general, the team should be kept as small as possible to maximise engagement and that, at a minimum, the party representative who has the greatest degree of authority to reach an agreement should attend.

Recognising that the issue of authority is particularly important for the state party, the ECT Guide provides that if any proposed settlement would need first to be ratified by a minister or cabinet, or similar, this should be made clear in the mediation agreement or as early in the proceedings as possible.

The ECT Guide recommends that in these circumstances 'a mediator may insist that the relevant party acting for the state at the mediation should have authority “effectively to recommend” the outcome of the mediation to the ratifier'.18

According to the ECT Guide, a legal adviser (whether in-house or external) need not always be part of the team, as the focus of the mediation is the parties' interests. Nevertheless, an initial legal assessment of the possible outcome of a dispute, should it be taken to arbitration or court, is useful,

Roles of the party and its legal representatives in investment mediation

The ECT Guide points out that the party and its legal representatives have to function as a team in investment mediation. This is because party representatives have the best understanding of their interests and are the most likely to be open to creative solutions and to eventually implement mediated settlement agreement.

The ECT Guide recommends that:

it is preferable for a party to be represented by someone who does not feel a need to defend past actions, who can be relatively objective and unemotional, but who has a thorough knowledge of the facts. It will be helpful for the representatives of the parties to relate well to each other and to be experienced negotiators. Each representative should be a decision maker authorised to negotiate and enter into or recommend a settlement.19

As regards legal representatives in investment mediation, the ECT Guide suggests that their roles are two-fold: counselling and preparation, and participation in mediation proceedings.20 In terms of counselling and preparation, this would include, among other things, advice on whether settlement and mediation is recommended, helping to select a mediator and ensuring that the process is confidential. As regards participation in mediation proceedings, a legal representative's role might include, among other things, advocating in a manner that presents a reasonable position in the matter and avoiding any pitfalls for the client in the event that mediation fails.

Enforcement of the settlement agreement

The ECT Guide suggests three potential channels to enforce a settlement agreement:

  1. as binding contracts, with which both parties must comply;
  2. if arbitration proceedings have been initiated under the ECT, the settlement may allow the parties to request the arbitral tribunal to incorporate the settlement agreement in the award; and
  3. to request in the agreement a first demand bank guarantee (which can be directly enforced if the settlement agreement is breached) or liquidated damages (to compensate the injured party in the event of a specific breach) – or both – as well as a dispute resolution clause.

The ECT Guide also considers that enforcement of a settlement may apply if permitted by domestic procedural rules. Even before arbitration proceedings commence, some mediation rules allow parties, 'subject to the consent of the mediator, to agree to appoint the mediator as an arbitrator and request him/her to confirm the settlement agreement in an arbitral award'.21

Barriers to settlement

Finally, the ECT Guide helpfully summarises common barriers to settlement, 'should be identified and addressed in the investment mediation proceeding':

  1. differing perceptions;
  2. extrinsic pressures, linkage;
  3. process failures;
  4. delay considered advantageous;
  5. parties;
  6. information; and
  7. fear of potential allegations of corruption.22

These barrier can often be overcome with the help of the mediator.

ii The ECT model instrument on management of investment disputes (2018)

In 2017, the ESC 'conducted a survey and analysed the domestic legislation of several contracting parties and observers to identify potential obstacles that may still hinder the effectiveness of investment mediation'.23

The main findings of the research showed that most government officials were concerned by the lack of a clear domestic legal framework resulting in ambiguous authority to settle an International Investment Dispute (or even to enter into discussions with foreign investors), fears of potential allegations of corruption and abuse of power leading to potential liability and lack of funding for the process. The research also pointed out the lack of an early, independent assessment of the dispute to ascertain the best (most effective) course of action (including the possibility of solving the dispute by negotiation or mediation).24

Having identified potential obstacles that may hinder the effectiveness of investment mediation, the ECS drafted the ECT Model Instrument on Management of Investment Disputes (with explanatory note) (the ECT Model Instrument) for states to use when implementing a domestic framework or as guidance on legal and practical issues for consideration towards achieving 'an effective and comprehensive management of international investment disputes'.

The intention is for the ECT Model Instrument to be useful both to states without  an effective framework for managing investment disputes and to states that already have a framework that they wish to update.

The ECT Model Instrument was developed with the support of the Investor-State Mediation Task Force of the International Mediation Institute (IMI) based on existing documents (Chile, Costa Rica, Croatia, Dominican Republic, Latvia, Peru, Poland, Slovak Republic and Vietnam), and on discussions with international institutions and government officials that deal with investment dispute resolution.

The authors are of the view that although the ECT Guide on Investment Mediation and the ECT Model Instrument on Management of Investment Dispute are drafted in the context of the ECT, these two instruments are very well thought out and together they can provide not only the framework for investment mediation processes but also all the key considerations, especially for states and state entities, to assess and prepare for investor-state mediation from the perspective of both policy and execution.

V International mediation institute

The IMI Competency Criteria for Investor-State Mediators (2016)

In 2016, the IMI adopted the Competency Criteria for Investor-State Mediators (the IMI Criteria),25 as proposed by its Investor State Task Force.

The aim of the IMI Criteria is to provide information and guidance to help with the selection of one or more suitable mediators to resolve disagreements involving private sector organisations and states.

The IMI Criteria emphasise that (1) 'investment disputes are particular, as they involve private parties on the one hand, and States on the other, and, therefore, may involve issues of public interest, public international law or sovereignty'; and (2) 'mediation is as much an art as a science, and Investor-State mediators should be not only competent but also suitable for each dispute'.26

According to the IMI Criteria, ideally, investor-state mediators should have satisfactory levels of knowledge and experience in each of the following areas:

  1. understanding of investor-state issues;
  2. experience in mediation and other dispute resolution processes;
  3. experience with different forms of negotiation, mediation and conciliation;
  4. understanding of arbitration and adjudication;
  5. intercultural competency; and
  6. other competencies.27

Additionally, the IMI Criteria recognise the importance of investor-state mediators' soft skills, which can help participants to communicate more effectively, reduce costs and save time. The guidance also suggests that an additional benefit would be to have familiarity with issues arising from third-party funding. However, although familiarity with the relevant industry may be helpful, this need not be an essential criterion when appointing a mediator.

Last but not least, the IMI Criteria underlie that co-mediation or expert participation could bring additional know-how to an investor-state mediation.

VI International Bar Association

IBA Rules for Investor-State Mediation (2012)

The International Bar Association (IBA) Council adopted the IBA Rules for Investor-State Mediation (the IBA Rules)28 on 4 October 2012.

It has been reported that the IBA Rules were applied for the first time in an ICSID conciliation case, Republic of Equatorial Guinea v. CMS Energy Corporation and others.29 In another case reported in 2016 by Investment Arbitration Reporter, the Philippines and a French engineering and consulting services company, Systra SA, agreed to try mediation to resolve a dispute arising under the France–Philippines bilateral investment treaty pursuant to the IBA Rules and under the auspices of the ICC International Centre for Alternative Dispute Resolution.

Scope of application

As stipulated in Article 1, the IBA Rules are used for mediation of disputes relating to investments that involve states or state entities. The parties to the dispute can agree to apply the Rules. Alternatively, the Rules can be adopted by a mediator or other authorised entity.

IBA investor-state mediation process

Article 2, Paragraph 4 explicitly states that 'mediation under these rules may take place at any time, regardless of whether court, arbitration or other dispute resolution proceedings have been initiated'.

The date on which mediation shall be deemed to have commenced differs depending on whether or not the parties agreed to mediation under the IBA Rules before the dispute arose. Article 2(3) sets out the content requirements for the request to mediate.

Article 9 suggests that the selected mediator should hold a 'mediation management conference' as soon as possible, using whichever means of telecommunication is practicable. Any party that has agreed to mediation under the IBA Rules undertakes to take part in this conference (Article 9(4)).

Under these rules, a party may withdraw from the mediation once the conference has taken place but must first notify the mediator and the other parties of the intention to withdraw, ideally stating the reasons. The mediator will then hold a meeting with all parties, using whichever means of telecommunications is suitable.

The authors are of the view that the IBA Rules are largely in line with general facilitative-style commercial mediation, although Article 8(7) does provide that 'if requested by the parties, the mediator may make recommendations concerning an appropriate resolution of the differences or disputes', which would be a conciliatory approach as opposed to purely facilitative. This is of no surprise, especially since Article 1(2) confirms that 'the parties may agree to exclude or vary any of these rules at any time' and that the 'rules apply unless otherwise agreed or derogated from by the parties'.

VII Centre for effective dispute resolution

CEDR Investor-State Mediation Guide for Lawyers and their Clients (2022)

The Centre for Effective Dispute Resolution (CEDR) has recently launched an investor-state mediation web page30 and created an advisory group of globally diverse leading investor-state dispute settlement (ISDS) practitioners to identify critical issues in ISDS mediation and a range of possible options and approaches to investor-state mediation, mainly from practitioners' perspectives. CEDR has also produced an Investor-State Mediation Guide for Lawyers and their Clients.31

VIII Expected trends

From the reviews and summaries of the key institutions and their efforts in promoting the use of investor-state mediation to resolve investor-state disputes in a peaceful and amicable manner, as set out in this chapter, it can be seen that a carefully considered and practice-driven investor-state mediation regime has been developed over the past 10 years.

The authors believe that despite all the doubts and perceived difficulties in bringing investors and states to the mediation table, investor-state mediation will become an increasingly popular alternative to arbitration in resolving international investment disputes, and the number of investor-state mediation cases will continue to climb.


Footnotes

1 Fan Yang and Andrew Rigden Green are partners at Stephenson Harwood LLP.

2 International Centre for Settlement of Investment Disputes (ICSID), Working Paper #5: Proposals for Amendment of the ICSID Rules (ICSID WP5), available at https://icsid.worldbank.org/sites/default/files/documents/WP%205-Volume1-ENG-FINAL.pdf (last accessed 22 Apr. 2022).

4 ICSID WP5, op. cit. note 2, above, at p. 206.

5 ibid., p. 209.

6 Those requirements are that 'if no step has been taken by the parties to appoint a mediator within 120 consecutive days after the date of registration, or such other period as the parties may agree, the Secretary-General shall notify the parties that the mediation is terminated'.

9 ICSID, 'Overview of Investment Treaty Clauses on Mediation', Introduction, p. 1.

10 ibid., p. 2.

13 See UNCITRAL Notes on Mediation (2021), 'Purpose of the Notes', at p. 1 (Introduction: Purpose of the Notes).

15 Energy Charter Secretariat (ECS), 'Guide on Investment Mediation', 2.1.

16 Mohammad Ammar Al-Bahloul v. The Republic of Tajikistan, SCC Case No. 064/2008, Partial Award on Jurisdiction and Liability (2 Sep. 2009), at paras. 154–56, available at http://www.energycharter.org/fileadmin/DocumentsMedia/Disputes/ISDSC-020pa.pdf.

17 ČEZ v. Albania (2013), Slovak Gas Holding BV et al v. Slovak Republic (2012), Türkiye Petrolleri Anonim Ortaklığı v. Kazakhstan (2011), Vattenfall v. Germany (2011), EVN AG v. The Former Yugoslav Republic of Macedonia (2010), Barmek Holding A.S. v. Azerbaijan (2006), Alstom Power Italia SpA, Alstom SpA v. Mongolia (2004) and AES Summit Generation Ltd (UK subsidiary of US-based AES Corporation) v. Hungary (2002).

18 ECS, 'Guide on Investment Mediation', 5.3(a).

19 ibid., 6.

20 id.

21 ibid., 13.

22 See ibid., 14.

23 See ECS, 'Model Instrument on Management of Investment Disputes', Explanatory Note at p. 20, available at https://www.energychartertreaty.org/model-instrument/ (last accessed 25 Apr. 2022).

24 id.

26 International Mediation Institute, 'Competency Criteria for Investor-State Mediators', p. 1.

27 ibid., pp. 1–4.

29 ICSID Case No. CONC(AF)/12/2.

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