Overview of Conciliation under the ICSID Additional Facility (2022 Rules)

The role 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.   A Conciliation Commission is composed of a Sole Conciliator or any uneven number of conciliators. During a conciliation, the Commission may request explanations, documents or other information, communicate with the parties jointly or separately, and visit any place connected with the dispute. The parties to a conciliation must cooperate with one another and with the Commission, and provide all relevant explanations, documents or other information and facilitate site visits.

An ICSID Additional Facility conciliation proceeding is governed by:

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

The ICSID Additional Facility Rules

The ICSID Additional Facility Rules define the scope of the Facility. Article 2 indicates that the Centre is authorized to administer conciliation proceedings for the settlement of legal disputes arising out of an investment between a State or a Regional Economic Integration Organization (REIO) on the one hand, and a national of another State on the other hand, which the parties consent in writing to submit to the Centre, if:

  • none of the parties to the dispute is a Contracting State to the ICSID Convention or a national of a Contracting State
  • either the State party to the dispute, or the State whose national is a party to the dispute, but not both, is a Contracting State or
  • an REIO is a party to the dispute.

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

The applicable Rules are those in force on the date of the filing of the Request for conciliation, unless the parties agree otherwise (Article 4 of the Additional Facility Rules). The current Additional Facility Rules came into effect on July 1, 2022.

The ICSID Additional Facility Conciliation Rules

The Additional Facility Conciliation Rules govern the entire conciliation process from the filing of the Request for conciliation onward. They explain how to institute an Additional Facility conciliation proceeding, including the form and contents of the Request for conciliation and the registration process.

If a provision of the Additional Facility Conciliation Rules or any agreement of the parties conflicts with a mandatory provision of the applicable law, that law prevails (Additional Facility Conciliation Rule 1(3)).

The applicable ICSID Additional Facility Conciliation Rules are those in force on the date of filing the Request for conciliation, unless the parties agree otherwise (Additional Facility Conciliation Rule 1(4)). The current Conciliation Rules came into effect on July 1, 2022.

The ICSID Additional Facility Administrative and Financial Regulations

The Additional Facility Administrative and Financial Regulations contain provisions concerning:

  • the costs of the proceeding (Regulations 6 to 10)
  • functions with respect to individual proceedings, including the ICSID Secretariat’s services (Regulations 2 to 5)
  • official languages (Regulation 12)
  • prohibition of testimony and limitation of liability for the arbitrators (Regulation 13)

The applicable Regulations are those in force on the date of filing the Request for conciliation pursuant to the ICSID Additional Facility Rules (Regulation 1(2)). The current Regulations came into effect on July 1, 2022.