SMU SIDRA Survey Report 2020

5.1.2 Despite arbitration’s dominance in investor-state dispute resolution, other dispute settlement mechanisms also come into play. Users’ experience shows that international courts (23%) and local courts (22%) were next in line in terms of usage, followed by mediation and hybrid dispute resolution mechanisms. Ad hoc mediation (14%) was more frequently used compared to institutional mediation (7%). This may reflect the fact that mediation occurs on an ad hoc basis within the framework of institutional arbitration. Point of Interest Mediation and other non-adversarial dispute settlement mechanisms are slowly but surely increasing their status in multilateral and bilateral investment treaties. The European Union (the ‘EU’) has been actively promoting non-adversarial dispute settlement means in its recent free trade and investment agreements. By way of example, chapter 3 of the EU-Singapore Investment Protection Agreement, which was signed on 19 October 2018 and at the time of writing has not come into force, provides for mediation as one of the voluntary mechanisms that is available for resolving investor-state disputes. Similarly, the EU-Vietnam Investment Protection Agreement, which was signed on 30 June 2019 and at the time of writing has not come into force, provides for mediation as a voluntary means for settlement of investment disputes. The adoption of the Singapore Convention can potentially accelerate the use of mediation as a flexible alternative to arbitration and increase the number of mediated cases in this field. The use of mediation and other non-adversarial dispute settlement mechanisms will largely depend on the type of incentives or requirements attached to such dispute settlement mechanisms in investment treaties. Exhibit 5.1.2 Choice of Dispute Resolution Mechanism by Respondent User Profile The charts refer to Client Users and Legal Users’ usage of dispute resolution mechanisms in Investor-State Disputes. Client Users Legal Users Institutional arbitration Ad hoc arbitration International Court Ad hoc mediation Institutional mediation Hybrid Others Local Court 85% 55% 22% 22% 9% 4% 4% 3% Institutional arbitration Ad hoc mediation Ad hoc arbitration International Court Local Court Hybrid Others Institutional mediation 60% 47% 33% 27% 27% 20% 13% 7% SIDRA INTERNATIONAL DISPUTE RESOLUTION SURVEY 17