Termination of the Conciliation - ICSID Convention Conciliation (2022)
A conciliation may terminate with the issuance of the Report by the Commission (Article 34 of the Convention, Conciliation Rule 35 to 37) or with a discontinuance order issued prior to the Commission’s constitution (Conciliation Rule 34). The conciliation may also terminate if the parties fail to pay the required advances (Administrative and Financial Regulation 16).
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 (Conciliation Rule 34). 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 Conciliation Rule 34(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 (Article 34(2) of the Convention; Conciliation Rule 35(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 of the agreement.
- 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
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
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 25 of the Convention or is otherwise not within the competence of the Commission
The Commission may find that it lacks jurisdiction on its own initiative or on the basis of a preliminary objection (Article 32 of the Convention; Conciliation Rule 33). In such case, the Commission will terminate the conciliation.
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 (Conciliation Rule 38)
Article 35 of the Convention 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 (Conciliation Rule 38).