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Cross-Fertilisation in International Commercial Arbitration, Investor–State Arbitration and Mediation: The Good, The Bad and the Ugly?

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journal contribution
posted on 2025-06-14, 08:21 authored by Luke Nottage

International commercial arbitration (‘ICA’) has proliferated worldwide, often cross-fertilising with investor–state arbitration (‘ISA’). Yet costs and delays are resurgent. Little cross-fertilisation with international mediation has occurred in the form of Arb-Med (arbitrators themselves acting as mediators). There has been growth instead in Med-Arb (separate mediation before arbitration), albeit not uniformly and not yet in ISA. Cross-fertilisation from ISA to ICA is evident in assessing whether noncompliance with agreed pre-arbitration steps generally goes to jurisdiction of the arbitral tribunal or merely admissibility of claims. This article urges more attention to these and other possible examples of cross-fertilisation among ICA, ISA and mediation, especially as such interactions may or may not effectively reduce costs and delays in cross-border dispute resolution.

History

Publication Date

2024

Volume

50

Issue

3

Type

Journal Article

Pages

1–38

AGLC Citation

Luke Nottage, 'Cross-Fertilisation in International Commercial Arbitration, Investor–State Arbitration and Mediation: The Good, The Bad and the Ugly?' (2024) 50(3) Monash University Law Review (advance).

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