CPR award for Ana Ubilava’s JWIT 2020 article on amicable settlement of international investor-state disputes

At their AGM on 27 January 2021, the CPR Institute for Dispute Resolution awarded Sydney Law School PhD student Ana Ubilava the Joseph T. McLaughlin 2020 Outstanding Student Article Award. The commendation was presented by the Hon. Elizabeth S. Stong, US Bankruptcy Court Judge (EDNY), with remarks reproduced below with permission.

“For many years, it has been my great pleasure, and my great honor, to serve as one of the judges in the annual CPR awards competitions, and in particular, to serve as a judge in the Outstanding Student Article category.  The Student Article recognition is given to an article or paper written by a student on events or issues in ADR. 

The articles in this category reflect the best of young scholarship, the most creative new thinking, and the most innovative approaches to research in and about ADR.  The articles also often challenge our assumptions, our common knowledge, our received wisdom, all those things that “everybody knows” but sometimes, somebody questions. 

It’s my pleasure to announce that the Joseph T. McLaughlin 2020 Outstanding Student Article award is presented to Ana Ubilava.  We recognize her for her article entitled “Amicable Settlements in Investor-State Disputes:  Empirical Analysis of Patterns and Perceived Problems,” which is a chapter from her thesis that was published this year in the Journal of World Investment and Trade.

Ana holds an LLM from the University of Manchester and a Bachelor’s in Law from Ivane Javakhishvili Tbilisi State University in Tblisi, Georgia.  She is currently a Ph.D. candidate at the University of Sydney Law School (Australia). 

Ana’s paper is the fourth in a series that she has written on the resolution of investor-state disputes.  In her work, she notes potential advantages to using compulsory mediation together with arbitration in investor-state disputes, and she observes that major concerns about compulsory mediation are unsupported by the available empirical evidence.  With little source material on the voluntary mediation of these disputes available, Ana turned to data from the pre-hearing settlement of cases in which a demand for arbitration had been filed.  She reasons that these cases were presumably resolved using mediation-like techniques – including negotiation or conciliation – or actual mediation, and therefore, they can be used as proxies for what might happen if parties were required to mediate.  

Using case outcome information from the International Centre for Settlement of Investment Disputes or ICSID database, the United Nations Conference on Trade and Development or UNCTAD database, the Investment Arbitration Reporter, and italaw.com, Ana was able to collect data on and evaluate more than 500 disputes.

She looked at four key questions about amicable settlement: 

  • First, are certain types of investor-state disputes unsuitable to be settled amicably?
  • Second, do amicable settlements impede transparency?
  • Third, do amicable settlements pay less compared to when investors win in arbitration? And
  • Fourth, is the non-enforceability of settlement agreements a problem in practice?

Ana concludes that the available evidence suggests these problems might not be as common or as severe as conventional wisdom may suggest.  She also recognizes the limits of the data, and the opportunity for further study.  She has set forth an empirical basis for taking a fresh look at many of the conventional objections to the imposition of investor-state mediation as a prerequisite to arbitration.  And for the quality of her questions, the quality of her research and analysis, and – as I like to say – based on the entire record, CPR is proud to award Ana Ubilava the Joseph T. McLaughlin 2020 Outstanding Student Article award. 

Ana, congratulations!