How to file an Application for Access and a Request - Additional Facility Conciliation (2006 Rules)

There are two steps necessary to commence conciliation under the Additional Facility. A party must: (i) request and obtain the Secretary-General’s approval of an agreement to access the Additional Facility (Application for Access); and (ii) submit a request for conciliation to the Secretary-General (the Request for Conciliation). A party can take these two steps at the same time or in separate phases.

Application for Access

The conditions for access to the Additional Facility are contained in Article 2 and Article 4 of the rules governing the administration of proceedings under the Additional Facility by the ICSID Secretariat (Additional Facility Rules).

The process of filing the Application for Access is governed by Article 4 of the Additional Facility Rules.

Formal Requirements, Information and Documentation

The Application for Access to the Additional Facility must comply with Article 4 of the Additional Facility Rules.

The Application for Access must be:

• written in one of the official languages of the Centre (English, French or Spanish) (Administrative and Financial Regulation 34);
• dated; and
• signed by the requesting party or its duly authorized representative. If the request is signed by a representative, it must enclose proof of the authorization, e.g., a power of attorney or a letter of engagement.

The Application for Access must include:

• Name and contact details of all parties (including mailing address, telephone and fax numbers and e-mail if available).
• A copy of an agreement concluded or proposed to be concluded providing for consent to conciliation proceedings under the Additional Facility in respect of existing or future disputes.
• A provision in such agreement that contemplates a legal dispute between a State (or a constituent subdivision or agency of a State) and a national of another State, which is not within the jurisdiction of the Centre under the ICSID Convention. The Rules contemplate two different scenarios:
  • Article 2(a) of the Additional Facility Rules: the dispute arises out of an investment, but either the State party to the dispute or the State whose national is a party to the dispute is not an ICSID Member State. In this case, both parties must give their consent to the jurisdiction of the Centre under Article 25 of the ICSID Convention if the jurisdictional requirements rationae personae of that Article have been met at the time proceedings are instituted (Article 2(a) and Article 4(2) of the Additional Facility Rules); or
  • Article 2(b) of the Additional Facility Rules: the dispute does not arise directly out of an investment, provided that either the State party to the dispute or the State whose national is a party to the dispute is an ICSID Member State. In this case, (a)  the underlying transaction must have features which distinguish it from an ordinary commercial transaction (Article 2(b) and Article 4(3) of the Additional Facility Rules); and (b) the jurisdictional requirements rationae personae of Article 25 of the ICSID Convention must be met

The Request for Conciliation

Once the Application for Access has been approved, a party may commence a conciliation under the Additional Facility by submitting a Request for Conciliation to the Secretary-General. Alternatively, the Request for Conciliation can be submitted concurrently with an Application for Access in respect of an existing dispute.

The process of filing the request is governed by Articles 2 and 3 of the Conciliation (Additional Facility) Rules and the Administrative and Financial Regulations (Regulations 16, 30 and 34(1)).

Formal Requirements, Information and Documentation

The Request for Conciliation must comply with Articles 2 and 3 of the Conciliation (Additional Facility) Rules.

The request must be:

• written in one of the official languages of the Centre (English, French or Spanish) (Administrative and Financial Regulation 34);
• dated; and
• signed by the requesting party or its duly authorized representative. If the request is signed by a representative, it must enclose proof of the authorization, e.g., a power of attorney or a letter of engagement.

The request must include:

• Name and contact details of all parties (including mailing address, telephone and fax numbers and e-mail if available).
• Date of approval of access by the Secretary-General.
• The relevant provisions of the instruments recording the parties’ consent to refer the dispute to conciliation.
• If the consent is in a contract, the request must enclose a copy of the signed contract and its effective date.
• If the consent is in a treaty or law, the request must enclose copies of such instruments and evidence of their entry into force (e.g., an extract of the domestic law showing the date);
• Information concerning the issues in dispute.
• If the requesting party is a juridical person, a statement that it has taken all necessary internal actions to authorize the request. The statement must be supported by evidence, e.g., a resolution of the board of directors.

Optional Information: The request may include any agreement or proposal by the parties regarding the number of conciliators and the method of their appointment, and any other agreements concerning the settlement of the dispute (Article 3(2) of the Conciliation (Additional Facility) Rules).

Lodging Fee: The request must be accompanied by a non-refundable fee, which is US$25,000 under the current Schedule of Fees. The fee is payable by the party filing the request or by both parties if the request is made jointly.

The fee should be paid by wire transfer.  Wire transfer instructions may be obtained by contacting the ICSID Secretariat.  A copy of the wire transfer order should be filed with the request.