The disputes that arise between host states and investors in the energy sector put a high number of valuable and vital projects in the countries at risk. Investment treaty arbitration mechanisms, as the traditional remedy, have provided a solution to these problems for decades. However, as the number of disputes increases, the sufficiency of arbitration in responding to disputes became questionable in addition to the long-lasting and costly cases. Accordingly, ADR mechanisms outside the arbitration cannon have triggered growing interest among practitioners. Despite the attraction and the apparent benefits of ADR such as being cheaper, faster and with better outcomes compared to arbitration, there are also hurdles in front that hinder the application of ADR. This has lead to the underuse of ADR in appropriate contexts. This study has been conducted to research the gap for the applicability of the ADR methods for investment disputes in the energy sector with the doctrinal analysis of the existing literature either promoting or opposing ADR. Its findings provide guidance for alternative dispute resolution practitioners on when to use ADR, how to use ADR and on what disputes ADR to be used to resolve conflicts in International Energy Investment.
CHAPTER I – INTRODUCTION
Background
Rationale Behind the Emergence of ADR
Criticism and Justification
CHAPTER II - ALTERNATIVE DISPUTE RESOLUTION MECHANISMS
Introduction
Historical Background of ADR
Definition of ADR
Purpose of the ADR
Positive Sides of ADR
Challenges and Threats to the Practice of ADR
Negotiation
Mediation
Conciliation
Expert Determination
Neutral Evaluation
Fact-finding
Mini-trial
Ombudsman
Dispute Review Boards
Enquiry
CHAPTER III - ADR IN CURRENT INVESTMENT LAW REGIME
International Investment Treaties
Investment Contracts
Domestic Dispute Resolution Mechanisms
CHAPTER IV – DRAWBACKS of ISDS SYSTEM
History of ISDS
A General View to ISDS
Diplomatic Protection
Court Litigation
Negative Impacts of the Arbitration on the Parties
Discontinued and Settled Arbitration Cases
Assistive Procedures to Arbitration
Seeking a Way Out: Hybrid Methods
CHAPTER V - INSTITUTIONAL ADR RULES
Conciliation
Mediation
Expert Determination
Fact-finding Rules (ICSID Additional Facility)
Early Neutral Evaluation Agreement - CEDR Model
Dispute Board Rules of CIArb
CHAPTER VI – ADR IN ENERGY INVESTMENT DISPUTES
Fundamentals of Energy Investment Disputes
Type of the Disputes
Stages of the Disputes
Amount of the Dispute
Critiques and Challenges to the Application of ADR
CHAPTER VII: CONCLUSION
Overview
How Can ADR Succeed?
Host State Approach
Closure
BIBLIOGRAPHY
Biography
Mustafa Oğuz Tuna is a legal practitioner at GSI Attorney Partnership Law Firm. Supervising international energy contracts and dispute proceedings.
