Termination of the Conciliation - ICSID Additional Facility Conciliation (2022 Rules)
A conciliation may terminate with the issuance of the Report by the Commission (Additional Facility Conciliation Rules 43 to 45) or with a discontinuance order issued prior to the Commission’s constitution (Additional Facility Conciliation Rule 42). The conciliation may also terminate if the parties fail to pay the required advances (Additional Facility Administrative and Financial Regulation 8).
Termination before the Commission’s constitution
If, prior to the constitution of the Commission, the parties jointly request the discontinuance of the conciliation, or if one party requests the discontinuance and the other party does not object, the Secretary-General discontinues the conciliation (Additional Facility Conciliation Rule 42). If both parties abandon the conciliation and do not take any steps towards the Commission’s constitution for more than 150 days, the Secretary-General is authorized to discontinue the conciliation following the procedure in Additional Facility Conciliation Rule 42(3).
Termination after the Commission’s constitution
Following the Commission’s constitution, the instrument terminating the conciliation is called a “Report”. The types of Reports a Commission may issue include:
- A Report noting the parties’ agreement on some or all of the issues in dispute (Additional Facility Conciliation Rule 43(1))
If the parties reach an agreement on all or some issues and wish to discontinue the conciliation, they will notify the Commission. The parties may provide the Commission with the complete and signed text of their agreement and jointly request the Commission to embody the same in its Report. This provision is aligned with the formal requirements in the Singapore Convention on Mediation in the event parties wish to avail themselves of that framework for enforcement.
- A Report determining that there is no likelihood of an agreement between the parties or noting that the parties have agreed to discontinue the conciliation (Additional Facility Conciliation Rule 44)
If the Commission determines that a mutually agreeable resolution is unlikely or the parties agree to discontinue the conciliation, the conciliation is terminated by the Commission.
- A Report recording one party’s failure to appear or participate (Additional Facility Conciliation Rule 45)
The parties’ active participation in the conciliation proceeding is essential. Without it, the Commission cannot fulfill its role to assist the parties in reaching an amicable resolution of the disputed issues and must terminate the conciliation.
- A Report concluding that the dispute does not meet the requirements of Article 2 of the Additional Facility Rules or is otherwise not within the competence of the Commission (Additional Facility Conciliation Rule 41(5))
The Commission may find that it lacks jurisdiction on its own initiative or on the basis of a preliminary objection (Additional Facility Conciliation Rule 41). In such case, the Commission will terminate the conciliation (Additional Facility Conciliation Rule 41(5)).
The Commission’s Report must include:
- a precise designation of each party
- the names of the representatives
- a description of the method of constitution of the Commission and its members
- a brief summary of the procedure, including dates of meetings and a statement of costs (Additional Facility Conciliation Rule 46)
Additional Facility Conciliation Rule 18 states that unless the parties otherwise agree, a party may not rely, in any other proceeding, on any positions taken, offers of settlement made during the conciliation or on the Report of the Commission. The Commission’s Report therefore also includes any agreement of the parties regarding the use of information from the conciliation in other proceedings (Additional Facility Conciliation Rule 46(1)(i)).