Chapter I
Establishment of the
Commission
Rule 1
General
Obligations
(1) Upon notification of the registration of
the request for conciliation, the parties shall, with all possible
dispatch, proceed to constitute a Commission, with due regard to
Section 2 of Chapter III of the Convention.
(2) Unless such information is provided in
the request, the parties shall communicate to the Secretary-General
as soon as possible any provisions agreed by them regarding the
number of conciliators and the method of their
appointment.
Rule 2
Method of Constituting Commission in
the Absence of Previous Agreement
(1) If the parties, at the time of the
registration of the request for conciliation, have not agreed upon
the number of conciliators and the method of their appointment,
they shall, unless they agree otherwise, follow the following
procedure:
(a) the requesting party shall, within 10
days after the registration of the request, propose to the other
party the appointment of a sole conciliator or of a specified
uneven number of conciliators and specify the method proposed for
their appointment;
(b) within 20 days after receipt of the
proposals made by the requesting party, the other party
shall:
(i) accept such proposals; or
(ii) make other proposals regarding the
number of conciliators and the method of their
appointment;
(c) within 20 days after receipt of the reply
containing any such other proposals, the requesting party shall
notify the other party whether it accepts or rejects such
proposals.
(2) The communications provided for in
paragraph (1) shall be made or promptly confirmed in writing and
shall either be transmitted through the Secretary-General or
directly between the parties with a copy to the Secretary-General.
The parties shall promptly notify the Secretary-General of the
contents of any agreement reached.
(3) At any time 60 days after the
registration of the request, if no agreement on another procedure
is reached, either party may inform the Secretary-General that it
chooses the formula provided for in Article 29(2)(b) of the
Convention. The Secretary-General shall thereupon promptly inform
the other party that the Commission is to be constituted in
accordance with that Article.
Rule 3
Appointment of Conciliators to a
Commission Constituted in Accordance with Convention Article
29(2)(b)
(1) If the Commission is to be constituted in
accordance with Article 29(2)(b) of the Convention:
(a) either party shall, in a communication to
the other party:
(i) name two persons, identifying one of them
as the conciliator appointed by it and the other as the conciliator
proposed to be the President of the Commission; and
(ii) invite the other party to concur in the
appointment of the conciliator proposed to be the President of the
Commission and to appoint another conciliator;
(b) promptly upon receipt of this
communication the other party shall, in its reply:
(i) name a person as the conciliator
appointed by it; and
(ii) concur in the appointment of the
conciliator proposed to be the President of the Commission or name
another person as the conciliator proposed to be
President;
(c) promptly upon receipt of the reply
containing such a proposal, the initiating party shall notify the
other party whether it concurs in the appointment of the
conciliator proposed by that party to be the President of the
Commission.
(2) The communications provided for in this
Rule shall be made or promptly confirmed in writing and shall
either be transmitted through the Secretary-General or directly
between the parties with a copy to the
Secretary-General.
Rule 4
Appointment of Conciliators by the
Chairman of the Administrative Council
(1) If the Commission is not constituted
within 90 days after the dispatch by the Secretary-General of the
notice of registration, or such other period as the parties may
agree, either party may, through the Secretary-General, address to
the Chairman of the Administrative Council a request in writing to
appoint the conciliator or conciliators not yet appointed and to
designate a conciliator to be the President of the
Commission.
(2) The provision of paragraph 1 shall apply
mutatis mutandis in the event that the parties have agreed that the
conciliators shall elect the President of the Commission and they
fail to do so.
(3) The Secretary-General shall forthwith
send a copy of the request to the other party.
(4) The Chairman shall, with due regard to
Article 31(1) of the Convention, and after consulting both parties
as far as possible, comply with that request within 30 days after
its receipt.
(5) The Secretary-General shall promptly
notify the parties of any appointment or designation made by the
Chairman.
Rule 5
Acceptance of
Appointments
(1) The party or parties concerned shall
notify the Secretary-General of the appointment of each conciliator
and indicate the method of his appointment.
(2) As soon as the Secretary-General has been
informed by a party or the Chairman of the Administrative Council
of the appointment of a conciliator, he shall seek an acceptance
from the appointee.
(3) If a conciliator fails to accept his
appointment within 15 days, the Secretary-General shall promptly
notify the parties, and if appropriate the Chairman, and invite
them to proceed to the appointment of another conciliator in
accordance with the method followed for the previous
appointment.
Rule 6
Constitution of the
Commission
(1) The Commission shall be deemed to be
constituted and the proceeding to have begun on the date the
Secretary-General notifies the parties that all the conciliators
have accepted their appointment.
(2) Before or at the first session of the
Commission, each conciliator shall sign a declaration in the
following form:
"To the best of my knowledge there is no
reason why I should not serve on the Conciliation Commission
constituted by the International Centre for Settlement of
Investment Disputes with respect to a dispute between . . . and . .
.
"I shall keep confidential all information
coming to my knowledge as a result of my participation in this
proceeding, as well as the contents of any report drawn up by the
Commission.
"I shall not accept any instruction or
compensation with regard to the proceeding from any source except
as provided in the Convention on the Settlement of Investment
Disputes and in the Regulations and Rules made pursuant
thereto.
"A statement of my past and present
professional, business and other relationships (if any) with the
parties is attached hereto."
Any conciliator failing to sign such a
declaration by the end of the first session of the Commission shall
be deemed to have resigned.
Rule 7
Replacement of
Conciliators
At any time before the Commission is
constituted, each party may replace any conciliator appointed by it
and the parties may by common consent agree to replace any
conciliator. The procedure of such replacement shall be in
accordance with Rules 1, 5 and 6.
Rule 8
Incapacity or Resignation of
Conciliators
(1) If a conciliator becomes incapacitated or
unable to perform the duties of his office, the procedure in
respect of the disqualification of conciliators set forth in Rule 9
shall apply.
(2) A conciliator may resign by submitting
his resignation to the other members of the Commission and the
Secretary-General. If the conciliator was appointed by one of the
parties, the Commission shall promptly consider the reasons for his
resignation and decide whether it consents thereto. The Commission
shall promptly notify the Secretary-General of its
decision.
Rule 9
Disqualification of
Conciliators
(1) A party proposing the disqualification of
a conciliator pursuant to Article 57 of the Convention shall
promptly, and in any event before the Commission first recommends
terms of settlement of the dispute to the parties or when the
proceeding is closed (whichever occurs earlier), file its proposal
with the Secretary-General, stating its reasons
therefor.
(2) The Secretary-General shall
forthwith:
(a) transmit the proposal to the members of
the Commission and, if it relates to a sole conciliator or to a
majority of the members of the Commission, to the Chairman of the
Administrative Council; and
(b) notify the other party of the
proposal.
(3) The conciliator to whom the proposal
relates may, without delay, furnish explanations to the Commission
or the Chairman, as the case may be.
(4) Unless the proposal relates to a majority
of the members of the Commission, the other members shall promptly
consider and vote on the proposal in the absence of the conciliator
concerned. If those members are equally divided, they shall,
through the Secretary-General, promptly notify the Chairman of the
proposal, of any explanation furnished by the conciliator concerned
and of their failure to reach a decision.
(5) Whenever the Chairman has to decide on a
proposal to disqualify a conciliator, he shall take that decision
within 30 days after he has received the proposal.
(6) The proceeding shall be suspended until a
decision has been taken on the proposal.
Rule 10
Procedure during a Vacancy on the
Commission
(1) The Secretary-General shall forthwith
notify the parties and, if necessary, the Chairman of the
Administrative Council of the disqualification, death, incapacity
or resignation of a conciliator and of the consent, if any, of the
Commission to a resignation.
(2) Upon the notification by the
Secretary-General of a vacancy on the Commission, the proceeding
shall be or remain suspended until the vacancy has been
filled.
Rule 11
Filling Vacancies on the
Commission
(1) Except as provided in paragraph (2), a
vacancy resulting from the disqualification, death, incapacity or
resignation of a conciliator shall be promptly filled by the same
method by which his appointment had been made.
(2) In addition to filling vacancies relating
to conciliators appointed by him, the Chairman of the
Administrative Council shall appoint a person from the Panel of
Conciliators:
(a) to fill a vacancy caused by the
resignation, without the consent of the Commission, of a
conciliator appointed by a party; or
(b) at the request of either party, to fill
any other vacancy, if no new appointment is made and accepted
within 30 days of the notification of the vacancy by the
Secretary-General.
(3) The procedure for filling a vacancy shall
be in accordance with Rules 1, 4(4), 4(5), 5 and, mutatis mutandis,
6(2).
Rule 12
Resumption of Proceeding after
Filling a Vacancy
As soon as a vacancy on the Commission has
been filled, the proceeding shall continue from the point it had
reached at the time the vacancy occurred. The newly appointed
conciliator may, however, require that any hearings be repeated in
whole or in part.
Chapter II
Working of the
Commission
Rule 13
Sessions of the
Commission
(1) The Commission shall hold its first
session within 60 days after its constitution or such other period
as the parties may agree. The dates of that session shall be fixed
by the President of the Commission after consultation with its
members and the Secretary-General. If upon its constitution the
Commission has no President because the parties have agreed that
the President shall be elected by its members, the
Secretary-General shall fix the dates of that session. In both
cases, the parties shall be consulted as far as
possible.
(2) The dates of subsequent sessions shall be
determined by the Commission, after consultation with the
Secretary-General and with the parties as far as
possible.
(3) The Commission shall meet at the seat of
the Centre or at such other place as may have been agreed by the
parties in accordance with Article 63 of the Convention. If the
parties agree that the proceeding shall be held at a place other
than the Centre or an institution with which the Centre has made
the necessary arrangements, they shall consult with the
Secretary-General and request the approval of the Commission.
Failing such approval, the Commission shall meet at the seat of the
Centre.
(4) The Secretary-General shall notify the
members of the Commission and the parties of the dates and place of
the sessions of the Commission in good time.
Rule 14
Sittings of the
Commission
(1) The President of the Commission shall
conduct its hearings and preside at its deliberations.
(2) Except as the parties otherwise agree,
the presence of a majority of the members of the Commission shall
be required at its sittings.
(3) The President of the Commission shall fix
the date and hour of its sittings.
Rule 15
Deliberations of the
Commission
(1) The deliberations of the Commission shall
take place in private and remain secret.
(2) Only members of the Commission shall take
part in its deliberations. No other person shall be admitted unless
the Commission decides otherwise.
Rule 16
Decisions of the
Commission
(1) Decisions of the Commission shall be
taken by a majority of the votes of all its members. Abstention
shall count as a negative vote.
(2) Except as otherwise provided by these
Rules or decided by the Commission, it may take any decision by
correspondence among its members, provided that all of them are
consulted. Decisions so taken shall be certified by the President
of the Commission.
Rule 17
Incapacity of the
President
If at any time the President of the
Commission should be unable to act, his functions shall be
performed by one of the other members of the Commission, acting in
the order in which the Secretary-General had received the notice of
their acceptance of their appointment to the Commission.
Rule 18
Representation of the
Parties
(1) Each party may be represented or assisted
by agents, counsel or advocates whose names and authority shall be
notified by that party to the Secretary-General, who shall promptly
inform the Commission and the other party.
(2) For the purposes of these Rules, the
expression "party" includes, where the context so admits, an agent,
counsel or advocate authorized to represent that party.
Chapter III
General Procedural
Provisions
Rule 19
Procedural Orders
The Commission shall make the orders required
for the conduct of the proceeding.
Rule 20
Preliminary Procedural
Consultation
(1) As early as possible after the
constitution of a Commission, its President shall endeavor to
ascertain the views of the parties regarding questions of
procedure. For this purpose he may request the parties to meet him.
He shall, in particular, seek their views on the following
matters:
(a) the number of members of the Commission
required to constitute a quorum at its sittings;
(b) the language or languages to be used in
the proceeding;
(c) the evidence, oral or written, which each
party intends to produce or to request the Commission to call for,
and the written statements which each party intends to file, as
well as the time limits within which such evidence should be
produced and such statements filed;
(d) the number of copies desired by each
party of instruments filed by the other; and
(e) the manner in which the record of the
hearings shall be kept.
(2) In the conduct of the proceeding the
Commission shall apply any agreement between the parties on
procedural matters, except as otherwise provided in the Convention
or the Administrative and Financial Regulations.
Rule 21
Procedural
Languages
(1) The parties may agree on the use of one
or two languages to be used in the proceeding, provided that, if
they agree on any language that is not an official language of the
Centre, the Commission, after consultation with the
Secretary-General, gives its approval. If the parties do not agree
on any such procedural language, each of them may select one of the
official languages (i.e. English, French and Spanish) for this
purpose.
(2) If two procedural languages are selected
by the parties, any instrument may be filed in either language.
Either language may be used at the hearings, subject, if the
Commission so requires, to translation and interpretation. The
recommendations and the report of the Commission shall be rendered
and the record kept in both procedural languages, both versions
being equally authentic.
Chapter IV
Conciliation
Procedures
Rule 22
Functions of the
Commission
(1) In order to clarify the issues in dispute
between the parties, the Commission shall hear the parties and
shall endeavor to obtain any information that might serve this end.
The parties shall be associated with its work as closely as
possible.
(2) In order to bring about agreement between
the parties, the Commission may, from time to time at any stage of
the proceeding, make-orally or in writing-recommendations to the
parties. It may recommend that the parties accept specific terms of
settlement or that they refrain, while it seeks to bring about
agreement between them, from specific acts that might aggravate the
dispute; it shall point out to the parties the arguments in favor
of its recommendations. It may fix time limits within which each
party shall inform the Commission of its decision concerning the
recommendations made.
(3) The Commission, in order to obtain
information that might enable it to discharge its functions, may at
any stage of the proceeding:
(a) request from either party oral
explanations, documents and other information;
(b) request evidence from other persons;
and
(c) with the consent of the party concerned,
visit any place connected with the dispute or conduct inquiries
there, provided that the parties may participate in any such visits
and inquiries.
Rule 23
Cooperation of the
Parties
(1) The parties shall cooperate in good faith
with the Commission and, in particular, at its request furnish all
relevant documents, information and explanations as well as use the
means at their disposal to enable the Commission to hear witnesses
and experts whom it desires to call. The parties shall also
facilitate visits to and inquiries at any place connected with the
dispute that the Commission desires to undertake.
(2) The parties shall comply with any time
limits agreed with or fixed by the Commission.
Rule 24
Transmission of the
Request
As soon as the Commission is constituted, the
Secretary-General shall transmit to each member a copy of the
request by which the proceeding was initiated, of the supporting
documentation, of the notice of registration and of any
communication received from either party in response
thereto.
Rule 25
Written
Statements
(1) Upon the constitution of the Commission,
its President shall invite each party to file, within 30 days or
such longer time limit as he may fix, a written statement of its
position. If, upon its constitution, the Commission has no
President, such invitation shall be issued and any such longer time
limit shall be fixed by the Secretary-General. At any stage of the
proceeding, within such time limits as the Commission shall fix,
either party may file such other written statements as it deems
useful and relevant.
(2) Except as otherwise provided by the
Commission after consultation with the parties and the
Secretary-General, every written statement or other instrument
shall be filed in the form of a signed original accompanied by
additional copies whose number shall be two more than the number of
members of the Commission.
Rule 26
Supporting
Documentation
(1) Every written statement or other
instrument filed by a party may be accompanied by supporting
documentation, in such form and number of copies as required by
Administrative and Financial Regulation 30.
(2) Supporting documentation shall ordinarily
be filed together with the instrument to which it relates, and in
any case within the time limit fixed for the filing of such
instrument.
Rule 27
Hearings
(1) The hearings of the Commission shall take
place in private and, except as the parties otherwise agree, shall
remain secret.
(2) The Commission shall decide, with the
consent of the parties, which other persons besides the parties,
their agents, counsel and advocates, witnesses and experts during
their testimony, and officers of the Commission may attend the
hearings.
Rule 28
Witnesses and
Experts
(1) Each party may, at any stage of the
proceeding, request that the Commission hear the witnesses and
experts whose evidence the party considers relevant. The Commission
shall fix a time limit within which such hearing shall take
place.
(2) Witnesses and experts shall, as a rule,
be examined before the Commission by the parties under the control
of its President. Questions may also be put to them by any member
of the Commission.
(3) If a witness or expert is unable to
appear before it, the Commission, in agreement with the parties,
may make appropriate arrangements for the evidence to be given in a
written deposition or to be taken by examination elsewhere. The
parties may participate in any such examination.
Chapter V
Termination of the
Proceeding
Rule 29
Objections to
Jurisdiction
(1) Any objection that the dispute is not
within the jurisdiction of the Centre or, for other reasons, is not
within the competence of the Commission shall be made as early as
possible. A party shall file the objection with the
Secretary-General no later than in its first written statement or
at the first hearing if that occurs earlier, unless the facts on
which the objection is based are unknown to the party at that
time.
(2) The Commission may on its own initiative
consider, at any stage of the proceeding, whether the dispute
before it is within the jurisdiction of the Centre and within its
own competence.
(3) Upon the formal raising of an objection,
the proceeding on the merits shall be suspended. The Commission
shall obtain the views of the parties on the objection.
(4) The Commission may deal with the
objection as a preliminary question or join it to the merits of the
dispute. If the Commission overrules the objection or joins it to
the merits, it shall resume consideration of the latter without
delay.
(5) If the Commission decides that the
dispute is not within the jurisdiction of the Centre or not within
its own competence, it shall close the proceeding and draw up a
report to that effect, in which it shall state its
reasons.
Rule 30
Closure of the
Proceeding
(1) If the parties reach agreement on the
issues in dispute, the Commission shall close the proceeding and
draw up its report noting the issues in dispute and recording that
the parties have reached agreement. At the request of the parties,
the report shall record the detailed terms and conditions of their
agreement.
(2) If at any stage of the proceeding it
appears to the Commission that there is no likelihood of agreement
between the parties, the Commission shall, after notice to the
parties, close the proceeding and draw up its report noting the
submission of the dispute to conciliation and recording the failure
of the parties to reach agreement.
(3) If one party fails to appear or
participate in the proceeding, the Commission shall, after notice
to the parties, close the proceeding and draw up its report noting
the submission of the dispute to conciliation and recording the
failure of that party to appear or participate.
Rule 31
Preparation of the
Report
The report of the Commission shall be drawn
up and signed within 30 days from the closure of the
proceeding.
Rule 32
The Report
(1) The report shall be in writing and shall
contain, in addition to the material specified in paragraph (2) and
in Rule 30:
(a) a precise designation of each
party;
(b) a statement that the Commission was
established under the Convention, and a description of the method
of its constitution;
(c) the names of the members of the
Commission, and an identification of the appointing authority of
each;
(d) the names of the agents, counsel and
advocates of the parties;
(e) the dates and place of the sittings of
the Commission; and
(f) a summary of the proceeding.
(2) The report shall also record any
agreement of the parties, pursuant to Article 35 of the Convention,
concerning the use in other proceedings of the views expressed or
statements or admissions or offers of settlement made in the
proceeding before the Commission or of the report or any
recommendation made by the Commission.
(3) The report shall be signed by the members
of the Commission; the date of each signature shall be indicated.
The fact that a member refuses to sign the report shall be recorded
therein.
Rule 33
Communication of the
Report
(1) Upon signature by the last conciliator to
sign, the Secretary-General shall promptly:
(a) authenticate the original text of the
report and deposit it in the archives of the Centre; and
(b) dispatch a certified copy to each party,
indicating the date of dispatch on the original text and on all
copies.
(2) The Secretary-General shall, upon
request, make available to a party additional certified copies of
the report.
(3) The Centre shall not publish the report
without the consent of the parties.
Chapter VI
General
Provisions
Rule 34
Final Provisions
(1) The texts of these Rules in each official
language of the Centre shall be equally authentic.
(2) These Rules may be cited as the
"Conciliation Rules" of the Centre.