Dispute resolution

Associate Professor Kun Fan’s paper presented at the ASCL 2019 Annual Meeting Program Plenary Session

Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre Member Associate Professor Kun Fan’s paper was presented at a plenary session of the American Society of Comparative Law (ASCL) 2019 Annual Meeting Program on 18 October 2019.

The ASCL 2019 annual program featured with two plenary sessions, which aimed to provide an overview of comparative law in international dispute resolution. The sessions were also intended to give recommendations and forecasts for the future of the field.

Associate Professor Fan’s paper, titled “International and Comparative Mediation: An Overview”, gave an overview of the comparative mediation, with a focus on investor-state mediation. 

According to Associate Professor Fan, mediation regained its momentum as a method of resolving investor-state disputes (ISD) considering increasing distrust by some Governments and NGOs of investor-state arbitration. This could be proved by the inclusion of mediation in the dispute settlement provisions of a growing number of investment treaties and the recent Singapore Convention on Mediation that has been signed by 46 nations so far including China and the US since its open for signature in August 2019. Although the Convention only applied to commercial mediation, the spirit and mechanism embodied in the Convention could apply with equal force to ISD. 

In this context, what are the challenges and values to use mediation to resolve ISD? What is the existing framework with respect to the use of mediation in ISD?  What will the future look like?

In her paper, Associate Professor Fan addressed these questions in turn and presented her treaty survey of the existing framework relates to investor-state mediation. She argued that mediation may offer a “soft” opening of the otherwise increasingly formalized and proceduralized arbitration proceedings, and the issue of increased use of mediation for resolving ISD is not a matter of ‘whether’ or ‘when’, but, rather, ‘how”. 

This paper will be published in the Journal of Dispute Resolution in Spring 2020. 

The ASCL was founded in 1951 and it now has over 100 institutional sponsor members. It is the leading organization in the US promoting the comparative study of law.