Investor–state mediation: From IBA to ICSID – the road ahead

Mauro Rubino-Sammartano is a Chartered Arbitrator and is admitted to the Italian and to the Paris Bar. He chairs the European Court of Arbitration and the International School of Arbitration and Mediation for the Mediterranean and the Middle East. He sits as an arbitrator, appears as counsel in arbitral proceedings and in court proceedings for challenges against awards. He is a paladin of the full right of a party to call evidence and to examine witnesses without undue interference. He has been a visiting professor at the Milan and Padua Universities and has chaired the Union Internationale des Avocats, the IBA’s International Construction Committee T, the IBA International Sales Committee and the IBA Mediation Committee. His main textbooks are Arbitrage International, Droit et Pratique (Larcier 2019) (4th edition), International Arbitration : Law and Practice (3rd Edition, Juris 2014), Il Diritto dell’Arbitrato (Arbitration Law, 6th Edition, Cedam, 2010), and Appalti di Opere e Contratti di Servizi (Construction Law and Contracts for Services, Cedam 2006). His articles include A Continuous Search for New Horizons (ARIA 2012, Vol. 23, No. 2), The Arbitrator's Pledge Launched by the European Court of Arbitration (ARIA 2015, Vol. 26, No. 4) and A Second (Quasi-Perfect) Storm Also in Arbitration (JOIA, Vol. 34, 6, 2017).

Ximena Bustamante is founding partner of PACTUM Dispute Resolution Consulting and a full time mediator with experience in over 1.000 cases, including highly complex disputes and controversies with the public sector, both in Ecuador and abroad. She is a Professor at San Francisco de Quito University and has taught several courses and seminars on mediation both in Ecuador and internationally.

Ximena was ranked as one of the top three mediators of the country by Leaders League in 2021 and 2022. She is a senior fellow for the Weinstein International Foundation, Membership Officer of the IBA Mediation Committee, part of the Expert Group on Mediation at the UNCITRAL and neutral for the United Nations Global Mediation Panel. Ximena has served as National Director of Mediation at the Attorney General Office, Deputy Director at the Arbitration and Mediation Center of the Quito´s Chamber of Commerce, and Director of the Project for the Development of Mediation in Ecuador for MBB and the JAMS Foundation. In the U.S. she worked as an assistant mediator at the Weinstein Group and a mediator in the courts of Los Angeles. She completed and Internship at the ICC International Centre for ADR. Ximena graduated as a lawyer, first of her class, at San Francisco de Quito University and holds an LL.M. for Dispute Resolution from Pepperdine University.

Bart Legum is a founding partner of Honlet Legum Arbitration.  He concentrates on international arbitration, both commercial and investor-State.  He has over 30 years of experience as arbitrator, counsel and expert witness.  Civil law, common law and public international law have governed in cases he addressed.  His case experience spans a wide variety of different sectors.  These include energy, mining, construction, pharmaceuticals, banking, manufacturing, telecommunications and others.  He is frequently appointed in cases involving States or state enterprises as well as business-business disputes.  He has acted as conciliator as well as arbitrator.
Bart is a member of the Board of the Arbitration Institute of the Stockholm Chamber of Commerce.  He is a Past Chair of the American Bar Association’s Section of International Law, a professional organization with over 20,000 members in 90 countries.   The President of the World Bank designated him as a member of the ICSID Panel of Conciliators.
In addition to decades of private practice at prominent international law firms, Bart’s career has included years of government service.  He has served both as a law clerk to a US federal court of appeals judge and in the Office of the Legal Adviser of the US State Department.  In that latter role, he acted as lead counsel for the US Government in defending the first arbitrations against it under the investment chapter of the North American Free Trade Agreement.  The US won every case heard under his tenure.
Bart also serves as editor of two publications:  International Litigation Strategies and Practice, an ABA publication now going into its third edition; and The Investment Treaty Arbitration Review, a Law and Business publication going into its seventh edition.
 

With over 30 years of practice in Paris, France as a business lawyer in commercial litigation, international arbitration and negotiations, I work exclusively as commercial mediator on the resolution of complex and emotional legal conflicts, mainly in transnational and intercultural environments. I am a certified (IMI, in Germany, in France IFCM) and experienced mediator with a legal background in intellectual property, IT, licences, distribution, competition, complex industrial projects, and international business law. I have been involved in investment mediations in the telecommunications, oil and gas sectors. From 1988 to 2019, I practiced as founding partner at BMH AVOCATS, Paris. I am a member of the Munich (Rechtsanwalt) and Paris (avocat honoraire) Bars. www.martinhausermediation.com

Federico Antich has been practicing Law in Italy since 1997, being licensed to practice throughout the Country and before Italy’s Supreme Court. He is based in Firenze where assists foreign clients in Italy and Italians with interests abroad in both judicial and extrajudicial matters. His main fields of practice (both domestic and international) are: litigation and alternative dispute resolution, debit collections, contracts, intellectual property, bankruptcy. He has also been employed as a Translator and Interpreter English – Italian during court proceedings. Mr. Antich mediated more than 5.000 cases, under the rules of different Institutions, with an average success rate above 80%. Several of them had an International character.

Maude Lebois is a founding partner of Gaillard Banifatemi Shelbaya Disputes and is recognized “for her impressive work handling Africa-related disputes”. Prior to founding Gaillard Banifatemi Shelbaya Disputes she was a partner at Shearman & Sterling LLP where she practiced for more than fifteen years.

Maude has represented States, State-owned entities and companies in international commercial and investment treaty arbitrations, ad hoc (including under UNCITRAL Rules) and under the Rules of the ICC and ICSID. An important part of Maude’s work also consists of contract and claim management within the firm’s construction practice. She also acts as arbitrator. Maude features in Who’s Who Legal: Arbitration – Future Leaders 2020, which notes that “she is held in high esteem by sources who say she really ‘fights for her clients and is always courteous with opposing counsel’. Maude is also recommended in Who’s Who Legal: France 2020 which reports that “Maude Lebois is a ‘highly effective counsel’ who ‘masterfully fights for her clients and remains courteous with opposing counsel at the same time’”. The 2019 edition noted that Maude “is a well-recognised name in the French arbitration market where she stands out for her impressive work handling Africa-related disputes”. She is recognized as a “next generation lawyer” in The Legal 500: Algeria – Foreign Firms 2019 and 2020. She also features in Jeune Afrique’s ranking of the 50 most influential business lawyers in francophone Africa in 2018.

Frauke Nitschke is a Senior Counsel at the International Centre for Settlement of Investment Disputes (ICSID). Frauke serves as the team lead for ICSID staff handling proceedings in English.

Frauke also serves as Secretary of tribunals, conciliation commissions and ad hoc committees in investor-State proceedings conducted pursuant to the ICSID Convention and the ICSID Additional Facility Rules involving a variety of economic sectors and legal instruments.

Frauke further leads ICSID’s investor-State mediation activities, including the drafting of the ICSID Mediation Rules and amendments to ICSID’s conciliation frameworks. Frauke has conducted investment mediation skills trainings for mediators and government officials.

Frauke regularly speaks at international conferences on investment mediation and recently chaired ICSID’s Investment Mediation Insights seminars.

Prior to joining ICSID, Frauke served in the World Bank’s Legal Vice Presidency and the Inspection Panel.

Frauke is an accredited mediator and admitted to the D.C. and New York State Bar. She holds a law degree from the Freie Universität Berlin, an LLM from Georgetown University Law Center, and a master’s degree in psychology from the FernUniversität Hagen.

Anna Joubin-Bret is the Secretary of the United Nations Commission on International Trade Law (UNCITRAL) and the Director of the International Trade Law Division in the Office of Legal Affairs of the United Nations, which functions as the substantive secretariat for UNCITRAL. She is the ninth Secretary of the Commission since it was established by the General Assembly in 1966.

Prior to her appointment on 24 November 2017, Ms. Joubin-Bret practiced law in Paris, specializing in International Investment Law and Investment Dispute Resolution. She focused on serving as counsel, arbitrator, mediator and conciliator in international investment disputes. She served as arbitrator in several ICSID, UNCITRAL and ICC disputes. Prior to 2011 and for 15 years, Ms. Joubin-Bret was the Senior Legal Adviser for the United Nations Conference on Trade and Development (UNCTAD). She edited and authored seminal research and publications on international investment law, notably the Sequels to UNCTAD IIA Series and co-edited with Jean Kalicki a book on Reform of Investor-State Dispute Settlement in 2015.

Ms. Joubin-Bret holds a post-graduate degree (DEA) in Private International Law from the University of Paris I, Panthéon-Sorbonne, a Masters Degree in International Economic Law from University Paris I and in Political Science from Institut d'Etudes Politiques. She was Legal Counsel in the legal department of the Schneider Group, General Counsel of the KIS Group and Director-Export of Pomagalski S.A. She was appointed judge at the Commercial Court in Grenoble (France) and was elected Regional Counsellor of the Rhône-Alpes Region in 1998.

James Claxton has 15 years of experience in international dispute resolution including roles as mediator, arbitrator, attorney, and academic. He is currently Associate Professor of Law at Waseda University and Mediation Training Expert at the Office of the Ombudsman for United Nations Funds and Programmes.

James is a member of mediation committees of the International Mediation Institute and the International Bar Association. He has worked with the United States Agency for International Development and the International Finance Corporation on mediation capacity-building projects. His publications on mediation appear in the Asian Journal on Mediation, The Journal of World Trade, and the Pepperdine Dispute Resolution Law Journal. A Fellow in the Chartered Institute of Arbitrators, James began his career as an attorney specializing in international arbitration in Paris and was legal counsel at the International Centre for Settlement of Investment Disputes of the World Bank in Washington.