Investor Decision Tree
Should I mediate an ISDS dispute?
Does the Treaty (or
investment agreement)
contain any provisions on
mediation?
YES
NO
Is the mediation provision in the Treaty or investment agreement defective? 1
NO
YES
Is mediation mandatory under the Treaty or investment agreement? 2
YES
NO
Has the mediation obligation under the Treaty or investment agreement been exhausted? 2
YES
NO
Is now a good time to mediate? 3
Has the claim been formulated and served on the State? 4
Revisit mediation once the claim is clear and has been served on the state
YES
NO
Are the claim and the remedy sought clear? 4
YES
NO
Is jurisdiction to hear the claim accepted by the State? 5
Revisit mediation once the claim is clear and has been served on the state
YES
NO
Is urgent interim relief being sought by the Investor 6
YES
NO
Is the State prepared to agree to interim relief on a temporary basis while mediation is attempted? 6
Revisit mediation once the threshold jurisdiction issue is accepted or decided
YES
NO
Other factors regarding the readiness to mediate
Are more documents or information needed to evaluate the merits of the State's defence?
YES
NO
Is any funder supportive of mediation and has agreement been reached about the approach to it? 7
YES
NO
Revisit mediation once this is available
Are issues of remedy and/or enforcement relevant to the decision?
Is the Investor's preferred solution one that an arbitral tribunal could order? 8
YES
NO
Are there concerns about the State's willingness to pay any award, and the ability to enforce such an award?
YES
NO
Is the State a signatory to the Singapore Convention? 9
YES
NO
Are there other reciprocal arrangements, or a domestic regime, that will assist with enforcement of a settlement agreement? 10
YES
NO
Has the Arbitration been commenced and, if so, is it accepted that the arbitrators are willing to record any settlement reached in an Award?
YES
NO
Are there concerns about the State's ability or intention to perform any settlement agreement?
YES
If there is a risk that the settlement agreement is unenforceable, the Investor may prefer an Award to maximise the ability to recover
State Decision Tree
Should I mediate an ISDS dispute?
Does the Treaty (or
investment agreement)
contain any provisions on
mediation?
YES
NO
Is the mediation provision in the Treaty or investment agreement defective? 1
NO
YES
Is mediation mandatory under the Treaty or investment agreement? 2
YES
NO
Has the mediation obligation under the Treaty or investment agreement been exhausted? 2
YES
NO
Is now a good time to mediate? 3
Has the claim been formulated and served on the State? 4
Revisit mediation once the claim is clear and has been served on the state
YES
NO
Are the claim and the remedy sought clear? 4
YES
NO
Is the State prepared to agree to interim relief on a temporary basis while mediation is attempted? 5
Revisit mediation once the threshold jurisdiction issue is accepted or decided
YES
NO
Is urgent interim relief being sought by the Investor 6
YES
NO
Is the State prepared to agree to interim relief on a temporary basis while mediation is attempted? 6
Revisit Imediation once the interim relief application is resolved
YES
NO
Other factors regarding the readiness to mediate
Does the State need more information or documents to evaluate the merits of the Investor's claim?
YES
NO
Does the State have clear advice on the assessment of the Investor's claim?
YES
NO
Can budget be made available for participation by the State in a mediation? 7
NO
YES
Revisit mediation once this is available
Are the measures being challenged suitable for mediation?
Is the remedy sought purely monetary damages? 8
YES
NO
Is the non-monetary remedy something the State can bring about? 9
YES
NO
Revisit mediation once the Investor indicates it would accept monetary or another non-monetary remedy
What confidentiality/transparency issues are involved?
Is the existence of the Investor's claim public? 10
YES
NO
Does the State need to make details of the mediation process public? 11
YES
NO
Would any settlement steps require public scrutiny?
YES
NO
Would any settlement steps require public scrutiny?
YES
NO
Mediation is unlikely to be suitable if the lack of confidentiality will make it difficult to move from a public position and/or agree on a compromise. If this is the case, consider some other alternative dispute resolution (ADR) process such as non-binding early neutral evaluation. 12

Decision Trees PDF

The Decision Trees have been produced with the aim of providing a helpful tool for parties to a live or prospective investment dispute to consider whether they should attempt to mediate the dispute and the factors that may influence such a decision.

The Decision Trees are the product of a Working Group of the IPBA Investment Arbitration Sub-Committee (IASC) of the IPBA Dispute Resolution and Arbitration Committee (DRAC). The IASC was convened in 2020 under the leadership of Lars Markert and Kshama Loya. In 2023, Kshama was succeeded as Co-Chair by Mariel Dimsey. Nicholas Peacock served as the chair of the Working Group.

A PDF of the Decision Trees can be downloaded by clicking the following image:

To download a PDF of the accompanying Notes to the Decision Trees, please click the following image: