Diagnosing for Appropriateness of Mediation in Investment Disputes

1. Diagnosing for Appropriateness of Mediation in Investment Disputes Laurence Boulle Director, Mandela Institute for Global Economic Law Johannesburg

2. The Coelacanth and ADR

3. Developed Countries FDI Statistics, 2007-2009

4. Developing Countries FDI Statistics, 2007-2009

5. Case Study I – Remedial Indigenisation Policies in South Africa • The mining industry in South Africa • Post-apartheid policy on black economic empowerment (BEE) • The requirements of South African mining legislation • The impacts on the value of investments • Dispute resolution through ICSID • The unfolding of law, policy and economics

6. Case Study II – Redistributive Land Policies in Zimbabwe • Land policies • Zimbabwean courts • South African courts • The SADC tribunal • SA Constitutional Court • Future forums? • ADR in investor- host country disputes? • The RSA-Zim bilateral agreement

7. Factors in Mediation Appropriateness • Mediation and power relations • Mediation and access to information • Mediation and future business relations

8. Principles of ADR Development • The changing political economy • Substantive redesign of investment agreements • Rule-based dispute resolution • Cultural awareness • Using existing precedents

10. Incremental Steps Towards Investment Mediation • Change of ideas and thinking about investment mediation • Develop local and regional supportive infrastructure • Protocols for mediators, participants, advisers, experts • Identification of skills and techniques required of mediators • Identification of mediators (individuals, organisations, states) • Norms on conduct and behaviour for participation in mediation • Time-lines for completion of discrete aspects of mediation process. • Sanctions for inappropriate conduct in mediation • Arrangements for converting mediated settlements into arbitral awards • Promotion of principle of pilot projects.

11. The Lexington Manifesto?