Study On The Linkage Between Arbitration And Mediation In International Investment Dispute Settlement

At present,investment disputes between investors and host states are often resolved by the Investor-State Dispute Settlement(ISDS)mechanism,with arbitration as its main body.However,the tendency of ISDS to protect private property at the expense of national sovereignty and public interest has been questioned,and the ISDS mechanism led by the International Centre for Settlement of Investment Disputes(ICSID)is facing a "legitimacy crisis".In the reform of the ISDS mechanism,mediation has gradually been emphasized as a complementary dispute resolution method.Many countries have proposed mediation as one of the directions of the reform program.Considering the characteristics of mediation itself,most scholars believe that the most advantageous way to utilize mediation is to use it as a supplementary and complementary mechanism to "fill in the gap".Since the incorporation of mediation in international investment arbitration is emerging in the field of international investment dispute settlement,the linkage between arbitration and mediation has become a key issue in international investment dispute settlement.Firstly,although the current international investment dispute settlement mechanism is equipped with both arbitration rules and mediation rules,the lack of interaction between the two causes a disconnection between arbitration and mediation linkage rules.Secondly,the linkage of arbitration and mediation will inevitably involve the issue of the neutral in the proceedings,i.e.,whether the arbitrators in the previous proceedings can be transformed into mediators.Finally,one of the directions of reform of the international investment arbitration regime is transparency reform.However,confidentiality,which is the essential feature and original advantage of the mediation mechanism,is contradictory to some extent to the trend towards transparency in international investment arbitration.In the context of international investment dispute settlement,how to deal with the transparency of arbitration and the confidentiality of mediation in the linkage between arbitration and mediation has become one of the key challenges for the mechanism.By sorting out the current arbitration and mediation rules in the field of international investment arbitration and analyzing the responses of different arbitration and mediation models to the aforementioned problems,the future improvement measures of the arbitration-mediation linkage in international investment disputes should be carried out in three aspects,i.e.,rules,personnel and institutions.First of all,the rules of arbitration and mediation linkage in BITs and ICSID should be optimized,and the use of different institutional rules under the ICSID mechanism should be promoted in order to enrich the linkage rules and improve the linkage process.At the same time,the confidentiality and transparency of arbitration and mediation should be balanced through specific rule design.Secondly,the values of efficiency and fairness in the selection of neutrals should be balanced on the basis of respecting the party autonomy.Finally,ICSID should play an important management role in the arbitrationmediation linkage by increasing the interaction and participation of the parties in the arbitration-mediation linkage process and innovating the interface role of institutions.