Mediation as a Mandatory Pre-condition to Arbitration
portes grátis
Mediation as a Mandatory Pre-condition to Arbitration
Alternative Dispute Resolution in Investor-State Dispute Settlement
Ubilava, Ana
Brill
11/2022
256
Dura
Inglês
9789004532533
15 a 20 dias
580
Descrição não disponível.
????Foreword??
List of Figures and Tables??
Abbreviations??
1???Introduction??
2???Mediation to Address Drawbacks of Domestic and International Commercial Arbitration??
?2.1?Introduction
?2.2?Popularisation of Arbitration
?2.2.1?Early Days of Arbitration??
?2.2.2?International Commercial Arbitration??
?2.2.3?Court-Annexed Arbitration??
?2.3?Spread of Mediation
?2.3.1?History of Mediation??
?2.3.2?Court-Annexed Mediation??
?2.3.3?Commercial Mediation??
?2.3.4?International Commercial Mediation??
?2.3.4.1?Enforcement as Contracts
?2.3.4.2?Enforcement as Court Orders or through Notaries
?2.3.4.3?Enforcement as Consent Arbitral Awards
?2.4?Conclusion
3???Mediation to Address Drawbacks of Arbitration in the Investor-State Dispute Settlement Regime??
?3.1?Introduction
?3.2?Investor-State Arbitration
?3.2.1?Promotion of Investor-State Arbitration??
?3.2.2?Investor-State Arbitration Drawbacks??
?3.2.2.1?Arbitration Costs
?3.2.2.2?Delays
?3.2.2.3?Legitimacy Crisis
?3.2.2.3.1?Unpredictable and Inconsistent Awards??
?3.2.2.3.2?Lack of Transparency??
?3.2.2.3.3?Constraints on Sovereignty and Allegations of 'Regulatory Chill'??
?3.2.3?Current ?isds? Reform Proposals??
?3.2.4?Summary??
?3.3?Current Role of Investor-State Mediation
?3.3.1?Definition??
?3.3.2?Benefits of Investor-State Mediation??
?3.3.3?Promoting Mediation/Conciliation in ?isds???
?3.3.3.1?iba
?3.3.3.2?International Investment Agreements
?3.3.3.3?Singapore Convention on Mediation
?3.3.3.4?icsid Mediation Rules
?3.4?Conclusion
4???Underutilisation of ?adr? in ?isds? - A 'Fork in The Road'???
?4.1?Introduction
?4.2?Formulation of isds Clauses and Problems with Interpretation
?4.2.1?The First Stage??
?4.2.2?The Second Stage??
?4.3?Choosing between Conciliation and Arbitration
?4.4?Possible Solutions
?4.4.1?Making changes to the Convention and Rules??
?4.4.2?Making Changes to ?iia????s??
?4.5?Conclusion
5???Empirical Analysis of the Validity of Arguments against Mandatory ?ism???
?5.1?Introduction
?5.2?Previous Empirical Studies
?5.3?Data and Methodology
?5.4?Common Critiques of Investor-State Mediation - Findings and Discussion
?5.4.1?Would Mandatory Investor-State Mediation Be Futile because Amicable Dispute Settlement Mechanisms Are Unsuitable for Certain Types of Investor-State Disputes???
?5.4.1.1?Settling a Case Would Make a State Look Weak and Indicate an Admission of Guilt
?5.4.1.2?Difficulty Determining an Authority to Settle on Behalf of a State
?5.4.1.3?Shifting the Blame to an Arbitrator Rather than Being Accountable for Settlement Terms
?5.4.1.4?Mediation Not Suitable for Disputes with Non-Pecuniary Claims
?5.4.2?Would Mandatory Investor-State Mediation Contribute to Secret Outcomes because Amicable Settlements Impede Transparency???
?5.4.3?Would Mandatory Investor-State Mediation Be a Waste of Time Because Settlements Pay Less Compared to What Investors Are Awarded When They Win???
?5.4.4?Has the Non-enforceability of Settlement Agreements Been a Problem in Practice???
?5.5?Conclusion
6???General Conclusions and Recommendations??
?6.1?Three Key Findings
?6.2?Three Avenues for ism Reform
?6.2.1?Mandatory Mediation in Multi-Tier Dispute Resolution Clauses for New ?iia????s??
?6.2.1.1?The Unilaterally Mandatory Mediation Step
?6.2.1.2?Integrating Mandatory Mediation into the Existing Cooling-Off Periods
?6.2.1.3?Detailed Provisions for Mandatory Mediation Procedures
?6.2.1.4?mfn Clause with isds Carve-Out
?6.2.2?Amendments to ?icsid? with Additional Mandatory Mediation Step for All Types of Investor-State Arbitration Cases??
?6.2.3?Mauritius Convention Style Multilateral Treaty??
Annexes??
Bibliography??
Index??
List of Figures and Tables??
Abbreviations??
1???Introduction??
2???Mediation to Address Drawbacks of Domestic and International Commercial Arbitration??
?2.1?Introduction
?2.2?Popularisation of Arbitration
?2.2.1?Early Days of Arbitration??
?2.2.2?International Commercial Arbitration??
?2.2.3?Court-Annexed Arbitration??
?2.3?Spread of Mediation
?2.3.1?History of Mediation??
?2.3.2?Court-Annexed Mediation??
?2.3.3?Commercial Mediation??
?2.3.4?International Commercial Mediation??
?2.3.4.1?Enforcement as Contracts
?2.3.4.2?Enforcement as Court Orders or through Notaries
?2.3.4.3?Enforcement as Consent Arbitral Awards
?2.4?Conclusion
3???Mediation to Address Drawbacks of Arbitration in the Investor-State Dispute Settlement Regime??
?3.1?Introduction
?3.2?Investor-State Arbitration
?3.2.1?Promotion of Investor-State Arbitration??
?3.2.2?Investor-State Arbitration Drawbacks??
?3.2.2.1?Arbitration Costs
?3.2.2.2?Delays
?3.2.2.3?Legitimacy Crisis
?3.2.2.3.1?Unpredictable and Inconsistent Awards??
?3.2.2.3.2?Lack of Transparency??
?3.2.2.3.3?Constraints on Sovereignty and Allegations of 'Regulatory Chill'??
?3.2.3?Current ?isds? Reform Proposals??
?3.2.4?Summary??
?3.3?Current Role of Investor-State Mediation
?3.3.1?Definition??
?3.3.2?Benefits of Investor-State Mediation??
?3.3.3?Promoting Mediation/Conciliation in ?isds???
?3.3.3.1?iba
?3.3.3.2?International Investment Agreements
?3.3.3.3?Singapore Convention on Mediation
?3.3.3.4?icsid Mediation Rules
?3.4?Conclusion
4???Underutilisation of ?adr? in ?isds? - A 'Fork in The Road'???
?4.1?Introduction
?4.2?Formulation of isds Clauses and Problems with Interpretation
?4.2.1?The First Stage??
?4.2.2?The Second Stage??
?4.3?Choosing between Conciliation and Arbitration
?4.4?Possible Solutions
?4.4.1?Making changes to the Convention and Rules??
?4.4.2?Making Changes to ?iia????s??
?4.5?Conclusion
5???Empirical Analysis of the Validity of Arguments against Mandatory ?ism???
?5.1?Introduction
?5.2?Previous Empirical Studies
?5.3?Data and Methodology
?5.4?Common Critiques of Investor-State Mediation - Findings and Discussion
?5.4.1?Would Mandatory Investor-State Mediation Be Futile because Amicable Dispute Settlement Mechanisms Are Unsuitable for Certain Types of Investor-State Disputes???
?5.4.1.1?Settling a Case Would Make a State Look Weak and Indicate an Admission of Guilt
?5.4.1.2?Difficulty Determining an Authority to Settle on Behalf of a State
?5.4.1.3?Shifting the Blame to an Arbitrator Rather than Being Accountable for Settlement Terms
?5.4.1.4?Mediation Not Suitable for Disputes with Non-Pecuniary Claims
?5.4.2?Would Mandatory Investor-State Mediation Contribute to Secret Outcomes because Amicable Settlements Impede Transparency???
?5.4.3?Would Mandatory Investor-State Mediation Be a Waste of Time Because Settlements Pay Less Compared to What Investors Are Awarded When They Win???
?5.4.4?Has the Non-enforceability of Settlement Agreements Been a Problem in Practice???
?5.5?Conclusion
6???General Conclusions and Recommendations??
?6.1?Three Key Findings
?6.2?Three Avenues for ism Reform
?6.2.1?Mandatory Mediation in Multi-Tier Dispute Resolution Clauses for New ?iia????s??
?6.2.1.1?The Unilaterally Mandatory Mediation Step
?6.2.1.2?Integrating Mandatory Mediation into the Existing Cooling-Off Periods
?6.2.1.3?Detailed Provisions for Mandatory Mediation Procedures
?6.2.1.4?mfn Clause with isds Carve-Out
?6.2.2?Amendments to ?icsid? with Additional Mandatory Mediation Step for All Types of Investor-State Arbitration Cases??
?6.2.3?Mauritius Convention Style Multilateral Treaty??
Annexes??
Bibliography??
Index??
Este título pertence ao(s) assunto(s) indicados(s). Para ver outros títulos clique no assunto desejado.
????Foreword??
List of Figures and Tables??
Abbreviations??
1???Introduction??
2???Mediation to Address Drawbacks of Domestic and International Commercial Arbitration??
?2.1?Introduction
?2.2?Popularisation of Arbitration
?2.2.1?Early Days of Arbitration??
?2.2.2?International Commercial Arbitration??
?2.2.3?Court-Annexed Arbitration??
?2.3?Spread of Mediation
?2.3.1?History of Mediation??
?2.3.2?Court-Annexed Mediation??
?2.3.3?Commercial Mediation??
?2.3.4?International Commercial Mediation??
?2.3.4.1?Enforcement as Contracts
?2.3.4.2?Enforcement as Court Orders or through Notaries
?2.3.4.3?Enforcement as Consent Arbitral Awards
?2.4?Conclusion
3???Mediation to Address Drawbacks of Arbitration in the Investor-State Dispute Settlement Regime??
?3.1?Introduction
?3.2?Investor-State Arbitration
?3.2.1?Promotion of Investor-State Arbitration??
?3.2.2?Investor-State Arbitration Drawbacks??
?3.2.2.1?Arbitration Costs
?3.2.2.2?Delays
?3.2.2.3?Legitimacy Crisis
?3.2.2.3.1?Unpredictable and Inconsistent Awards??
?3.2.2.3.2?Lack of Transparency??
?3.2.2.3.3?Constraints on Sovereignty and Allegations of 'Regulatory Chill'??
?3.2.3?Current ?isds? Reform Proposals??
?3.2.4?Summary??
?3.3?Current Role of Investor-State Mediation
?3.3.1?Definition??
?3.3.2?Benefits of Investor-State Mediation??
?3.3.3?Promoting Mediation/Conciliation in ?isds???
?3.3.3.1?iba
?3.3.3.2?International Investment Agreements
?3.3.3.3?Singapore Convention on Mediation
?3.3.3.4?icsid Mediation Rules
?3.4?Conclusion
4???Underutilisation of ?adr? in ?isds? - A 'Fork in The Road'???
?4.1?Introduction
?4.2?Formulation of isds Clauses and Problems with Interpretation
?4.2.1?The First Stage??
?4.2.2?The Second Stage??
?4.3?Choosing between Conciliation and Arbitration
?4.4?Possible Solutions
?4.4.1?Making changes to the Convention and Rules??
?4.4.2?Making Changes to ?iia????s??
?4.5?Conclusion
5???Empirical Analysis of the Validity of Arguments against Mandatory ?ism???
?5.1?Introduction
?5.2?Previous Empirical Studies
?5.3?Data and Methodology
?5.4?Common Critiques of Investor-State Mediation - Findings and Discussion
?5.4.1?Would Mandatory Investor-State Mediation Be Futile because Amicable Dispute Settlement Mechanisms Are Unsuitable for Certain Types of Investor-State Disputes???
?5.4.1.1?Settling a Case Would Make a State Look Weak and Indicate an Admission of Guilt
?5.4.1.2?Difficulty Determining an Authority to Settle on Behalf of a State
?5.4.1.3?Shifting the Blame to an Arbitrator Rather than Being Accountable for Settlement Terms
?5.4.1.4?Mediation Not Suitable for Disputes with Non-Pecuniary Claims
?5.4.2?Would Mandatory Investor-State Mediation Contribute to Secret Outcomes because Amicable Settlements Impede Transparency???
?5.4.3?Would Mandatory Investor-State Mediation Be a Waste of Time Because Settlements Pay Less Compared to What Investors Are Awarded When They Win???
?5.4.4?Has the Non-enforceability of Settlement Agreements Been a Problem in Practice???
?5.5?Conclusion
6???General Conclusions and Recommendations??
?6.1?Three Key Findings
?6.2?Three Avenues for ism Reform
?6.2.1?Mandatory Mediation in Multi-Tier Dispute Resolution Clauses for New ?iia????s??
?6.2.1.1?The Unilaterally Mandatory Mediation Step
?6.2.1.2?Integrating Mandatory Mediation into the Existing Cooling-Off Periods
?6.2.1.3?Detailed Provisions for Mandatory Mediation Procedures
?6.2.1.4?mfn Clause with isds Carve-Out
?6.2.2?Amendments to ?icsid? with Additional Mandatory Mediation Step for All Types of Investor-State Arbitration Cases??
?6.2.3?Mauritius Convention Style Multilateral Treaty??
Annexes??
Bibliography??
Index??
List of Figures and Tables??
Abbreviations??
1???Introduction??
2???Mediation to Address Drawbacks of Domestic and International Commercial Arbitration??
?2.1?Introduction
?2.2?Popularisation of Arbitration
?2.2.1?Early Days of Arbitration??
?2.2.2?International Commercial Arbitration??
?2.2.3?Court-Annexed Arbitration??
?2.3?Spread of Mediation
?2.3.1?History of Mediation??
?2.3.2?Court-Annexed Mediation??
?2.3.3?Commercial Mediation??
?2.3.4?International Commercial Mediation??
?2.3.4.1?Enforcement as Contracts
?2.3.4.2?Enforcement as Court Orders or through Notaries
?2.3.4.3?Enforcement as Consent Arbitral Awards
?2.4?Conclusion
3???Mediation to Address Drawbacks of Arbitration in the Investor-State Dispute Settlement Regime??
?3.1?Introduction
?3.2?Investor-State Arbitration
?3.2.1?Promotion of Investor-State Arbitration??
?3.2.2?Investor-State Arbitration Drawbacks??
?3.2.2.1?Arbitration Costs
?3.2.2.2?Delays
?3.2.2.3?Legitimacy Crisis
?3.2.2.3.1?Unpredictable and Inconsistent Awards??
?3.2.2.3.2?Lack of Transparency??
?3.2.2.3.3?Constraints on Sovereignty and Allegations of 'Regulatory Chill'??
?3.2.3?Current ?isds? Reform Proposals??
?3.2.4?Summary??
?3.3?Current Role of Investor-State Mediation
?3.3.1?Definition??
?3.3.2?Benefits of Investor-State Mediation??
?3.3.3?Promoting Mediation/Conciliation in ?isds???
?3.3.3.1?iba
?3.3.3.2?International Investment Agreements
?3.3.3.3?Singapore Convention on Mediation
?3.3.3.4?icsid Mediation Rules
?3.4?Conclusion
4???Underutilisation of ?adr? in ?isds? - A 'Fork in The Road'???
?4.1?Introduction
?4.2?Formulation of isds Clauses and Problems with Interpretation
?4.2.1?The First Stage??
?4.2.2?The Second Stage??
?4.3?Choosing between Conciliation and Arbitration
?4.4?Possible Solutions
?4.4.1?Making changes to the Convention and Rules??
?4.4.2?Making Changes to ?iia????s??
?4.5?Conclusion
5???Empirical Analysis of the Validity of Arguments against Mandatory ?ism???
?5.1?Introduction
?5.2?Previous Empirical Studies
?5.3?Data and Methodology
?5.4?Common Critiques of Investor-State Mediation - Findings and Discussion
?5.4.1?Would Mandatory Investor-State Mediation Be Futile because Amicable Dispute Settlement Mechanisms Are Unsuitable for Certain Types of Investor-State Disputes???
?5.4.1.1?Settling a Case Would Make a State Look Weak and Indicate an Admission of Guilt
?5.4.1.2?Difficulty Determining an Authority to Settle on Behalf of a State
?5.4.1.3?Shifting the Blame to an Arbitrator Rather than Being Accountable for Settlement Terms
?5.4.1.4?Mediation Not Suitable for Disputes with Non-Pecuniary Claims
?5.4.2?Would Mandatory Investor-State Mediation Contribute to Secret Outcomes because Amicable Settlements Impede Transparency???
?5.4.3?Would Mandatory Investor-State Mediation Be a Waste of Time Because Settlements Pay Less Compared to What Investors Are Awarded When They Win???
?5.4.4?Has the Non-enforceability of Settlement Agreements Been a Problem in Practice???
?5.5?Conclusion
6???General Conclusions and Recommendations??
?6.1?Three Key Findings
?6.2?Three Avenues for ism Reform
?6.2.1?Mandatory Mediation in Multi-Tier Dispute Resolution Clauses for New ?iia????s??
?6.2.1.1?The Unilaterally Mandatory Mediation Step
?6.2.1.2?Integrating Mandatory Mediation into the Existing Cooling-Off Periods
?6.2.1.3?Detailed Provisions for Mandatory Mediation Procedures
?6.2.1.4?mfn Clause with isds Carve-Out
?6.2.2?Amendments to ?icsid? with Additional Mandatory Mediation Step for All Types of Investor-State Arbitration Cases??
?6.2.3?Mauritius Convention Style Multilateral Treaty??
Annexes??
Bibliography??
Index??
Este título pertence ao(s) assunto(s) indicados(s). Para ver outros títulos clique no assunto desejado.
