Conduct of the Conciliation After the First Session - ICSID Additional Facility Conciliation (2022 Rules)

The role of the Commission is to clarify the issues in dispute between the parties and to assist the parties in reaching a mutually acceptable resolution of all or part of the dispute (Additional Facility Conciliation Rule 32(1)). ICSID conciliation is thus a form of amicable dispute resolution, with notable differences from mediation, such as for example the scope of application, number of conciliators, the default appointment procedure, the powers of the Commission).

The parties must cooperate with the Commission in good faith to achieve this goal (Additional Facility Conciliation Rule 37(1)). The Commission must conduct the conciliation in good faith and in an expeditious and cost-effective manner (Additional Facility Conciliation Rule 33(1)), treat the parties equally, and provide each party with a reasonable opportunity to appear and participate (Additional Facility Conciliation Rule 33(2)).

To assist the parties in reaching a mutually acceptable resolution, the Commission may communicate with the parties jointly or separately (Additional Facility Conciliation Rule 32(4)(b)), request information and further written statements from either party (Additional Facility Conciliation Rule 32(4)(a), and 38(2)), and visit any place connected with the dispute (Additional Facility Conciliation Rule 32(4)(c)).

Throughout the conciliation, the Commission will issue procedural orders required for the conduct of the conciliation and must apply any agreement of the parties on procedural matters to the extent that it does not conflict with a provision of law from which the parties cannot derogate and the Additional Facility Administrative and Financial Regulations (Additional Facility Conciliation Rule 34(4)).

The Commission may meet with the parties either jointly or separately (‘shuttle diplomacy’) (Additional Facility Conciliation Rule 40(1)) to assist the parties in finding a mutually acceptable resolution.

During a conciliation, the Commission may, after consulting the parties, recommend that the parties refrain from taking specific action that might aggravate the dispute or recommend specific terms of settlement (Additional Facility Conciliation Rule 32(2)). Such recommendations may be made orally or in writing and either party may request that the Commission provide reasons. (Additional Facility Conciliation Rule 32(3)).