First Session, Fact-Finding Protocol and Conduct of the Proceeding – ICSID Fact-Finding Rules (2022)

Initial Written Statements

Fifteen days after the constitution of the Committee, each party is to file a brief initial written statement (Fact-Finding Rule 12(1)). The statement is an opportunity for each party to share its views on the mandate of the Committee, the scope of the inquiry, relevant documents, persons to be interviewed, site visits and any other relevant matters.

First Session

The first session should be held within 30 days after the constitution of the Committee unless the parties agree to a different timeline (Fact-Finding Rule 12(2)).

A first session can be held in person, by telephone or by videoconference.

The objective of the first session is to determine the protocol for conducting the proceeding (Fact-Finding Rule 12(3)).  

Matters to be discussed include:

  • the mandate of the Committee
  • the procedure for the conduct of the proceeding
    • procedural languages
    • method of communication
    • place of sessions
    • whether a session will be held in person or remotely
    • next steps in the proceeding
    • treatment of information and documents
    • persons to be interviewed
    • site visits
    • any other procedural and administrative matters.
  • whether the Committee’s Report will be binding on the parties
  • whether the Committee should make any recommendations in its Report.

Fact-Finding Protocol

The agreements reached at the first session are included in a Fact-Finding Protocol (Fact-Finding Rule 12(3)) issued by the Committee. The proceeding will be conducted on the basis of the agreed Protocol (Fact-Finding Rule 12(4)).

Any matters not provided for in the Rules or not previously agreed to by the parties in the Protocol will be determined by agreement of the parties or, failing such agreement, by the Committee (Fact-Finding Rule 12(5)).

Conduct of the proceeding

The Committee must treat the parties equally and provide each party with a reasonable opportunity to participate in the proceeding (Fact-Finding Rule 13(1)).

It must conduct the proceeding in an expeditious and cost-effective manner and must consult regularly with the parties on the conduct of the proceeding (Fact-Finding Rule 13(1)).

Conversely, the parties must cooperate with the Committee and with one another and shall conduct the proceeding in good faith and in an expeditious and cost-effective manner (Fact-Finding Rule 13(2)).

The parties must endeavor to provide all relevant explanations, documents or other information requested by the Committee, participate in the sessions of the Committee and use best efforts to facilitate the Committee’s inquiry (Fact-Finding Rule 13(2)).