By a variety of metrics, investor-state arbitration has grown remarkably in recent years. The ICSID docket alone has enlarged twenty fold over the last dozen years, reflecting an unprecedented number of parties to the ICSID Convention, correspondingly high levels of treatybased commitments to arbitrate, and world events generating—in some instances—multiple claims against a single state. With the many tests of the prevailing disputes architecture, seeming weaknesses became evident; the various design adjustments effected in response have been intended to promote transparency, discourage feckless claims, and alleviate jurisprudential discord. Concurrently, the considerable costs associated with investor-state arbitrations have prompted interest in alternative methodologies, including mediation, as means of handling investment disputes.
In considering mediation one may start from the premise that investor-state disputes often end in settlement, without the aid of any nonarbitral third party procedure. Taking settlement as on balance something to be promoted, the cluster of questions that arise are whether, through the auxiliary use of mediation, settlement might be achieved more frequently, more quickly, or more cheaply than under the present regime.