First Session - ICSID Additional Facility Conciliation (2022 Rules)
Following the constitution of the Commission and the filing of the initial written statements, the Commission holds a first session with the parties (Additional Facility Conciliation Rule 39).
The first session allows the Commission and the parties to establish the procedure to be followed in the conciliation. The Commission will ascertain the parties’ agreements or separate views on procedural questions such as the applicable conciliation rules, language(s) to be used, place of meetings, and the procedural calendar. The first session could also consider any agreement between the parties not to initiate or pursue any other proceeding in respect of the dispute subject of the conciliation and the application of prescription or limitation periods. The outcome of a first session is recorded in Summary Minutes (Additional Facility Conciliation Rule 39(6)).
The first session should be held within 60 days after the constitution of the Commission, unless the parties agree otherwise (Additional Facility Conciliation Rule 39(3)). As soon as each conciliator is appointed, ICSID ascertains their availability in the next 60 days to ensure a timely first session. Once the Commission is constituted, the Secretary of the Commission then contacts the parties with proposed date(s) and the method of holding the first session (in person or remotely).
Organizing the First Session
A first session can be held in person, by telephone or by videoconference.
Most first sessions are held by videoconference to reduce costs and travel time. This decision is taken by the Commission and the parties considering factors such as the number of outstanding issues.
If the Commission and the parties decide to hold an in-person first session, it can be held at any location, provided that the Commission approves such venue and there are suitable facilities. The Commission often proposes a venue for the parties’ consideration.
Issues to be Discussed
The first session addresses any matters of procedure that the parties and the Commission wish to establish at the outset of the proceeding.
The Secretary of the Commission circulates draft summary minutes, approved by the Commission, to the parties for their comments well in advance of the first session. This acts as an agenda for the first session. The summary minutes have been developed by the Centre taking into account usual procedural items, many of which are listed in Additional Facility Conciliation Rule 39(4). It provides guidance to the parties in reaching agreements on specific issues.
At the first session or shortly thereafter, each party is asked to
- identify a person or entity authorized to negotiate and settle the dispute on its behalf and
- describe the process that would be followed to conclude and implement a settlement agreement (Additional Facility Conciliation Rule 39(5)).
This ensures that the subsequent negotiations during the conciliation are conducted by individuals with negotiation authority. In addition, this allows conciliation participants to be aware of any approval processes that may be required when finalizing an eventual settlement agreement.
The agreements reached by the parties and the decisions made by the Commission are included in summary minutes which are signed by the President of the Commission and circulated to the parties by the Secretary of the Commission promptly after the first session (Additional Facility Conciliation Rule 39(6)).