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

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.