Overview of Conciliation under the Additional Facility

Conciliation is a cooperative, non-adversarial dispute resolution process. The goal of the Conciliation Commission is to clarify the issues in dispute between the parties and to endeavor to bring about agreement on mutually acceptable terms. To that end, a Conciliation Commission may request relevant documents, hear witnesses, make site visits and issue recommendations to assist the parties in reaching mutually acceptable terms to resolve their dispute. Parties to conciliation proceedings are expected to cooperate in good faith with the Commission and seriously consider its recommendations.

An Additional Facility conciliation proceeding is governed by:

The main steps in an Additional Facility conciliation are depicted in the following flow chart.

 Conduct of an Additional Facility Conciliation

The ICSID Additional Facility Rules define the scope of the Facility.  Disputes eligible for conciliation under the Facility are:

  • investment disputes between parties, one of which is not an ICSID Member State or a national of an ICSID Member State; or
  • disputes that do not directly arise out of an investment between parties at least one of which is an ICSID Member State or a national of an ICSID Member State.

Because such disputes are not covered by the ICSID Convention (see Article 25(1) of the ICSID Convention), none of the provisions of the ICSID Convention is applicable to Additional Facility proceedings (Article 3 of the Additional Facility Rules).

An agreement to conciliate under the Additional Facility Rules is subject to approval by the Secretary-General under the Additional Facility Rules (Article 3) before proceedings can commence.

The Conciliation (Additional Facility) Rules

The Conciliation (Additional Facility) Rules govern the conciliation process from the filing of the request for conciliation onward. Approval of access to the Additional Facility Rules must have been granted before the request for conciliation can be registered under the Arbitration (Additional Facility) Rules.

The Administrative and Financial Regulations

The Administrative and Financial Regulations contain provisions concerning:

These provisions apply mutatis mutandis to conciliation proceedings under the Additional Facility Rules (Article 5 of the Additional Facility Rules). 

  • ICSID Review—Foreign Investment Law Journal, Vol. 29, No. 1 – Special Focus Issue on Alternative Dispute Resolution in Investment Disputes (2014)
    • Anna Joubin-Bret, and Barton Legum, A Set of Rules Dedicated to Investor-State Mediation: the IBA Investor-State Mediation Rules, pp. 17-24
    • Susan D. Franck, Using Investor–State Mediation Rules to Promote Conflict Management: An Introductory Guide, pp. 66-89
    • Jeremy Lack, Michael Leathes and Wolf Juergen von Kumberg, Enabling Early Settlement in Investor-State Arbitration - The Time to Introduce Mediation Has Come, pp. 133-141
    • Frauke Nitschke, The IBA’s Investor–State Mediation Rules and the ICSID Dispute Settlement Framework, pp. 112-132
  • Fatma Khalifa, Mediation use in ISDS, Transnational Dispute Management, No. 1 (2014)
  • Antonio R. Parra, The History of ICSID, Oxford University Press, pp. 35-36, 60-61, 71-73, 83-86, 108-111 (2012)
  • Gabriel Bottini and Veronica Lavista, Conciliation and BITs, Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2009 (A. Rovine ed.), Brill, pp. 358-373 (2010)
  • Christoph H. Schreuer, Loretta Malintoppi, August Reinisch & Anthony Sinclair, Chapter III- Conciliation, The ICSID Convention: A Commentary (2nd ed.), Cambridge University Press, p. 430 (2009)
  • Jack J. Coe, Toward a Complementary Use of Conciliation in Investor-State Disputes-A Preliminary Sketch, Transnational Dispute Management, No. 1 (2007)
  • Nassib G. Ziadé, ICSID Conciliation, News from ICSID, Vol. 13, No. 2, p. 3 (1996)
  • Lester Nurick and Stephen J. Schnably, The First ICSID Conciliation: Tesoro Petroleum Corporation v. Trinidad and Tobago, ICSID Review—Foreign Investment Law Journal, Vol. 1, p. 340 (1986)