Expanding the Dispute Resolution Toolbox for Investment Disputes: Opportunities for Dispute Prevention and Mediation in the Western Balkans
摘要
The multiple ongoing reform processes of investment law and investor-State dispute settlement (ISDS) opened the space to reconsider the default reliance on investment arbitration and to reimagine the role of dispute prevention and amicable settlement mechanisms in this space. Such mechanisms entail several benefits for States, including cost and time efficiency, more leverage and control in the course and outcome of disputes, and the restoration of trust in ISDS more broadly. Dispute prevention mechanisms and mediation have emerged as viable reform options, gaining growing support from States (including the EU and its Member States), investors, and international organizations (UNCITRAL, the World Bank Group, etc.) alike. While dispute prevention mechanisms take different shapes and forms in different countries, amicable settlement (including negotiations, conciliation and mediation) has been available in international investment treaties for decades, in the so-called “cooling-off” period. Nevertheless, it has not been effectively used in ISDS, due to a variety of factors, ranging from the preference for third-party adjudication, motivated by the desire of the competent authorities to avoid personal liability resulting from settlements with foreign investors, and/or a lack of capacities. The Western Balkans governments, navigating the ISDS reform process, while progressing on their path to EU accession, are a good case study for the challenges and opportunities of integrating dispute prevention and mediation into the State toolbox for investment dispute resolution. This chapter will address the regional and international, as well as legal and institutional frameworks for dispute prevention and mediation, the obstacles and challenges in the Western Balkans, and the emerging new structures and best practices, which establish a promising model for the region, with tailored solutions for each State. The chapter will offer perspectives for dispute prevention and mediation as staples of the investment protection frameworks in the Western Balkans on their path to the EU, and as future EU Member States.