Investor Presentaiton
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INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
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As discussed above, non-binding ADR methods, such as
conciliation and mediation, seek not to apply the law in a rigid
manner but to find a solution to a dispute that would be acceptable
to both parties.
ADR methods can help to save time and money, find a mutually
acceptable solution, prevent escalation of the dispute and preserve a
workable relationship between the disputing parties. However, there
is no guarantee that an ADR procedure will lead to the resolution of
the dispute; an unsuccessful procedure could simply increase the
costs involved. Also, depending on the nature of a State act
challenged by an investor (e.g., a law of general application), ADR
may not always be acceptable to the government. A pre-condition
for an effective ADR system is an adequate institutional
arrangement within a government that allows relevant officials and
agencies to propose, conduct and implement the ADR procedures.
ADR could go hand in hand with the strengthening of dispute
prevention and management policies at the national level. Such
policies aim to create effective channels of communication and
improve institutional arrangements between investors and respective
agencies (for example, investment aftercare policies) and between
different ministries dealing with investment-related issues. An
investment ombudsman office, or a specifically assigned agency that
takes the lead should a conflict with an investor arise, can help
resolve investment disputes early on, as well as assess the prospects
of, and, if necessary, prepare for international arbitration. 227
In terms of implementation, this approach is relatively
straightforward, and much has already been done by some countries.
Importantly, given that most ADR and DPP efforts are implemented
at the national level, individual countries can proceed without the
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Section II.C.5.
See further UNCTAD, 2010a; UNCTAD, 2011a.
UNCTAD Series on International Investment Agreements IIView entire presentation