There are two steps necessary to commence conciliation under the Additional Facility: (i) the Secretary-General’s approval of an agreement to access the Additional Facility; and (ii) the registration of a request for conciliation. ICSID will first determine whether access to the Additional Facility can be granted before determining whether a request for conciliation can be registered.
Review of Application for Access
As soon as a party has filed an application for access to the Additional Facility, ICSID sends the application to the other party and determines whether access can be approved in respect of an existing or future dispute. This process is outlined in Article 4 of the Additional Facility Rules.
- If the application concerns Article 2(a), the Secretary-General must determine whether (i) the requirements of that provision are fulfilled and (ii) both parties have given their consent to the jurisdiction of the Centre under Article 25 of the ICSID Convention in the event that the jurisdictional requirements rationae personae of that Article have been met at the time proceedings are instituted (Article 2(a) and Article 4(2) of the Additional Facility Rules).
- If the application concerns Article 2(b), the Secretary-General must determine whether (i) the requirements of that provision are fulfilled; and (ii) the underlying dispute has features which distinguish it from an ordinary commercial transaction.
The Secretary-General notifies the parties as soon as possible of the approval or disapproval of the application for access to the Additional Facility.
Screening of a Request and Registration
As soon as a party has filed a request for conciliation in respect of an existing dispute with the prescribed lodging fee, ICSID sends the request to the other party and determines whether it can be registered. This process is outlined in Article 4 of the Conciliation (Additional Facility) Rules.
The Secretary-General of ICSID will register the request if satisfied that all the requirements set forth in Articles 2 and 3 of the Conciliation (Additional Facility) Rules have been met. This determination is made on the basis of the information contained in the request. A prior approval of access to the Additional Facility is required (Article 3(1)(d) of the Conciliation (Additional Facility) Rules).
The decision to register the request is without prejudice to the powers of the Commission with regard to jurisdiction, competence and the merits (Article 5(d) of the Conciliation (Additional Facility) Rules).
The notice of registration is sent to the parties and basic case details are posted on ICSID’s website. All significant steps in the proceeding are subsequently recorded under “Procedural Details” of that case.
The parties are invited to inform ICSID of any agreement as to the number of conciliators and the method of their appointment and to constitute a Commission as soon as possible. The date of registration triggers time limits for agreeing on a method to constitute the Commission (60 days) and to appoint the members of a Commission (90 days).
The screening process for the application for access and request for conciliation, cumulatively, takes on average three weeks.