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).
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- 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)