International Centre for the
Settlement of Investment Disputes (ICSID)
Convention on the
Settlement of Investment Disputes
Between States and Nationals of Other States
(Washington Convention)
continued
CHAPTER III
Conciliation
Section 1
Request for Conciliation
Article 28
Any Contracting State or any national of a Contracting State wishing
to institute conciliation proceedings shall address a request to that effect in writing to
the Secretary-General who shall send a copy of the request to the other party.
The request shall contain information concerning the issues in
dispute, the identity of the parties and their consent to conciliation in accordance with
the rules of procedure for the institution of conciliation and arbitration proceedings.
The Secretary-General shall register the request unless he finds, on
the basis of the information contained in the request, that the dispute is manifestly
outside the jurisdiction of the Centre. He shall forthwith notify the parties of
registration or refusal to register.
Section 2
Constitution of the Conciliation Commission
Article 29
The Conciliation Commission (hereinafter called the Commission) shall be
constituted as soon as possible after registration of a request pursuant to Article 28.
The Commission shall consist of a sole conciliator or any uneven number of
conciliators appointed as the parties shall agree.
Where the parties do not agree upon the number of conciliators and the
method of their appointment, the Commission shall consist of three conciliators, one
conciliator appointed by each party and the third, who shall be the president of the
Commission, appointed by agreement of the parties.
Article 30
If the Commission shall not have been constituted within 90 days after
notice of registration of the request has been dispatched by the Secretary-General in
accordance with paragraph (3) of Article 28, or such other period as the parties may
agree, the Chairman shall, at the request of either party and after consulting both
parties as far as possible, appoint the conciliator or conciliators not yet appointed.
Article 31
Conciliators may be appointed from outside the Panel of
Conciliators, except in the case of appointments by the Chairman pursuant to Article 30.
Conciliators appointed from outside the Panel of Conciliators shall
possess the qualities stated in paragraph (1) of Article 14.
Section 3
Conciliation Proceedings
Article 32
The Commission shall be the judge of its own competence.
Any objection by a party to the dispute that that dispute is not
within the jurisdiction of the Centre, or for other reasons is not within the competence
of the Commission, shall be considered by the Commission which shall determine whether to
deal with it as a preliminary question or to join it to the merits of the dispute.
Article 33
Any conciliation proceeding shall be conducted in accordance with the
provisions of this Section and, except as the parties otherwise agree, in accordance with
the Conciliation Rules in effect on the date on which the parties consented to
conciliation. If any question of procedure arises which is not covered by this Section or
the Conciliation Rules or any rules agreed by the parties, the Commission shall decide the
question.
Article 34
It shall be the duty of the Commission to clarify the issues in
dispute between the parties and to endeavour to bring about agreement between them upon
mutually acceptable terms. To that end, the Commission may at any stage of the proceedings
and from time to time recommend terms of settlement to the parties. The parties shall
cooperate in good faith with the Commission in order to enable the Commission to carry out
its functions, and shall give their most serious consideration to its recommendations.
If the parties reach agreement, the Commission shall draw up a
report noting the issues in dispute and recording that the parties have reached agreement.
If, at any stage of the proceedings, it appears to the Commission that there is no
likelihood of agreement between the parties, it shall close the proceedings and shall draw
up a report noting the submission of the dispute and recording the failure of the parties
to reach agreement. If one party fails to appear or participate in the proceedings, the
Commission shall close the proceedings and shall draw up a report noting that party's
failure to appear or participate.
Article 35
Except as the parties to the dispute shall otherwise agree, neither party
to a conciliation proceeding shall be entitled in any other proceeding, whether before
arbitrators or in a court of law or otherwise, to invoke or rely on any views expressed or
statements or admissions or offers of settlement made by the other party in the
conciliation proceedings, or the report or any recommendations made by the Commission.
CHAPTER IV
Arbitration
Section I
Request for Arbitration
Article 36
Any Contracting State or any national of a Contracting State wishing
to institute arbitration proceedings shall address a request to that effect in writing to
the Secretary-General who shall send a copy of the request to the other party.
The request shall contain information concerning the issues in
dispute, the identity of the parties and their consent to arbitration in accordance with
the rules of procedure for the institution of conciliation and arbitration proceedings.
The Secretary-General shall register the request unless he finds, on
the basis of the information contained in the request, that the dispute is manifestly
outside the jurisdiction of the Centre. He shall forthwith notify the parties of
registration or refusal to register.
Section 2
Constitution of the Tribunal
Article 37
The Arbitral Tribunal (hereinafter called the Tribunal) shall be
constituted as soon as possible after registration of a request pursuant to Article 36.
The Tribunal shall consist of a sole arbitrator or any uneven number of
arbitrators appointed as the parties shall agree.
Where the parties do not agree upon the number of arbitrators and the
method of their appointment, the Tribunal shall consist of three arbitrators, one
arbitrator appointed by each party and the third, who shall be the president of the
Tribunal, appointed by agreement of the parties.
Article 38
If the Tribunal shall not have been constituted within 90 days after
notice of registration of the request has been dispatched by the Secretary-General in
accordance with paragraph (3) of Article 36, or such other period as the parties may
agree, the Chairman shall, at the request of either party and after consulting both
parties as far as possible, appoint the arbitrator or arbitrators not yet appointed.
Arbitrators appointed by the Chairman pursuant to this Article shall not be nationals of
the Contracting State party to the dispute or of the Contracting State whose national is a
party to the dispute.
Article 39
The majority of the arbitrators shall be nationals of States other than
the Contracting State party to the dispute and the Contracting State whose national is a
party to the dispute; provided, however, that the foregoing provisions of this Article
shall not apply if the sole arbitrator or each individual member of the Tribunal has been
appointed by agreement of the parties.
Article 40
Arbitrators may be appointed from outside the Panel of Arbitrators,
except in the case of appointments by the Chairman pursuant to Article 38.
Arbitrators appointed from outside the Panel of Arbitrators shall
possess the qualities stated in paragraph (1) of Article 14.
Section 3
Powers and Functions of the Tribunal
Article 41
The Tribunal shall be the judge of its own competence.
Any objection by a party to the dispute that that dispute is not
within the jurisdiction of the Centre, or for other reasons is not within the competence
of the Tribunal, shall be considered by the Tribunal which shall determine whether to deal
with it as a preliminary question or to join it to the merits of the dispute.
Article 42
The Tribunal shall decide a dispute in accordance with such rules of
law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall
apply the law of the Contracting State party to the dispute (including its rules on the
conflict of laws) and such rules of international law as may be applicable.
The Tribunal may not bring in a finding of non liquet on the ground
of silence or obscurity of the law.
The provisions of paragraphs (1) and (2) shall not prejudice the
power of the Tribunal to decide a dispute ex aequo et bono if the parties so agree.
Article 43
Except as the parties otherwise agree, the Tribunal may, if it deems it
necessary at any stage of the proceedings,
call upon the parties to produce documents or other evidence, and
visit the scene connected with the dispute, and conduct such inquiries
there as it may deem appropriate.
Article 44
Any arbitration proceeding shall be conducted in accordance with the
provisions of this Section and, except as the parties otherwise agree, in accordance with
the Arbitration Rules in effect on the date on which the parties consented to arbitration.
If any question of procedure arises which is not covered by this Section or the
Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the
question.
Article 45
Failure of a party to appear or to present his case shall not be
deemed an admission of the other party's assertions.
If a party fails to appear or to present his case at any stage of
the proceedings the other party may request the Tribunal to deal with the questions
submitted to it and to render an award. Before rendering an award, the Tribunal shall
notify, and grant a period of grace to, the party failing to appear or to present its
case, unless it is satisfied that that party does not intend to do so.
Article 46
Except as the parties otherwise agree, the Tribunal shall, if requested by
a party, determine any incidental or additional claims or counterclaims arising directly
out of the subject-matter of the dispute provided that they are within the scope of the
consent of the parties and are otherwise within the jurisdiction of the Centre.
Article 47
Except as the parties otherwise agree, the Tribunal may, if it considers
that the circumstances so require, recommend any provisional measures which should be
taken to preserve the respective rights of either party.
Section 4
The Award
Article 48
The Tribunal shall decide questions by a majority of the votes of
all its members.
The award of the Tribunal shall be in writing and shall be signed by
the members of the Tribunal who voted for it.
The award shall deal with every question submitted to the Tribunal,
and shall state the reasons upon which it is based.
Any member of the Tribunal may attach his individual opinion to the
award, whether he dissents from the majority or not, or a statement of his dissent.
The Centre shall not publish the award without the consent of the
parties.
Article 49
The Secretary-General shall promptly dispatch certified copies of
the award to the parties. The award shall be deemed to have been rendered on the date on
which the certified copies were dispatched.
The Tribunal upon the request of a party made within 45 days after
the date on which the award was rendered may after notice to the other party decide any
question which it had omitted to decide in the award, and shall rectify any clerical,
arithmetical or similar error in the award. Its decision shall become part of the award
and shall be notified to the parties in the same manner as the award. The periods of time
provided for under paragraph (2) of Article 51 and paragraph (2) of Article 52 shall run
from the date on which the decision was rendered.
Section 5
Interpretation, Revision and Annulment of the Award
Article 50
If any dispute shall arise between the parties as to the meaning or
scope of an award, either party may request interpretation of the award by an application
in writing addressed to the Secretary-General.
The request shall, if possible, be submitted to the Tribunal which
rendered the award. If this shall not be possible, a new Tribunal shall be constituted in
accordance with Section 2 of this Chapter. The Tribunal may, if it considers that the
circumstances so require, stay enforcement of the award pending its decision.
Article 51
Either party may request revision of the award by an application in
writing addressed to the Secretary-General on the ground of discovery of some fact of such
a nature as decisively to affect the award, provided that when the award was rendered that
fact was unknown to the Tribunal and to the applicant and that the applicant's ignorance
of that fact was not due to negligence.
The application shall be made within 90 days after the discovery of
such fact and in any event within three years after the date on which the award was
rendered.
The request shall, if possible, be submitted to the Tribunal which
rendered the award. If this shall not be possible, a new Tribunal shall be constituted in
accordance with Section 2 of this Chapter.
The Tribunal may, if it considers that the circumstances so require,
stay enforcement of the award pending its decision. If the applicant requests a stay of
enforcement of the award in his application, enforcement shall be stayed provisionally
until the Tribunal rules on such request.
Article 52
Either party may request annulment of the award by an application in
writing addressed to the Secretary-General on one or more of the following grounds:
that the Tribunal was not properly constituted;
that the Tribunal has manifestly exceeded its powers;
that there was corruption on the part of a member of the Tribunal;
that there has been a serious departure from a fundamental rule of
procedure; or
that the award has failed to state the reasons on which it is based.
The application shall be made within 120 days after the date on which the
award was rendered except that when annulment is requested on the ground of corruption
such application shall be made within 120 days after discovery of the corruption and in
any event within three years after the date on which the award was rendered.
On receipt of the request the Chairman shall forthwith appoint from the
Panel of Arbitrators an ad hoc Committee of three persons. None of the members of the
Committee shall have been a member of the Tribunal which rendered the award, shall be of
the same nationality as any such member, shall be a national of the State party to the
dispute or of the State whose national is a party to the dispute, shall have been
designated to the Panel of Arbitrators by either of those States, or shall have acted as a
conciliator in the same dispute. The Committee shall have the authority to annul the award
or any part thereof on any of the grounds set forth in paragraph (1).
The provisions of Articles 41-45, 48, 49, 53 and 54, and of Chapters VI and
VII shall apply mutatis mutandis to proceedings before the Committee.
The Committee may, if it considers that the circumstances so require, stay
enforcement of the award pending its decision. If the applicant requests a stay of
enforcement of the award in his application, enforcement shall be stayed provisionally
until the Committee rules on such request.
If the award is annulled the dispute shall, at the request of either party,
be submitted to a new Tribunal constituted in accordance with Section 2 of this Chapter.
Section 6
Recognition and Enforcement of the Award
Article 53
The award shall be binding on the parties and shall not be subject
to any appeal or to any other remedy except those provided for in this Convention. Each
party shall abide by and comply with the terms of the award except to the extent that
enforcement shall have been stayed pursuant to the relevant provisions of this Convention.
For the purposes of this Section, "award" shall include
any decision interpreting, revising or annulling such award pursuant to Articles 50, 51 or
52.
Article 54
Each Contracting State shall recognize an award rendered pursuant to
this Convention as binding and enforce the pecuniary obligations imposed by that award
within its territories as if it were a final judgment of a court in that State. A
Contracting State with a federal constitution may enforce such an award in or through its
federal courts and may provide that such courts shall treat the award as if it were a
final judgment of the courts of a constituent state.
A party seeking recognition or enforcement in the territories of a
Contracting State shall furnish to a competent court or other authority which such State
shall have designated for this purpose a copy of the award certified by the
Secretary-General. Each Contracting State shall notify the Secretary-General of the
designation of the competent court or other authority for this purpose and of any
subsequent change in such designation.
Execution of the award shall be governed by the laws concerning the
execution of judgments in force in the State in whose territories such execution is
sought.
Article 55
Nothing in Article 54 shall be construed as derogating from the law in
force in any Contracting State relating to immunity of that State or of any foreign State
from execution.
CHAPTER V
Replacement and Disqualification of Conciliators and Arbitrators
Article 56
After a Commission or a Tribunal has been constituted and
proceedings have begun, its composition shall remain unchanged; provided, however, that if
a conciliator or an arbitrator should die, become incapacitated, or resign, the resulting
vacancy shall be filled in accordance with the provisions of Section 2 of Chapter III or
Section 2 of Chapter IV.
A member of a Commission or Tribunal shall continue to serve in that
capacity notwithstanding that he shall have ceased to be a member of the Panel.
If a conciliator or arbitrator appointed by a party shall have
resigned without the consent of the Commission or Tribunal of which he was a member, the
Chairman shall appoint a person from the appropriate Panel to fill the resulting vacancy.
Article 57
A party may propose to a Commission or Tribunal the disqualification of
any of its members on account of any fact indicating a manifest lack of the qualities
required by paragraph (1) of Article 14. A party to arbitration proceedings may, in
addition, propose the disqualification of an arbitrator on the ground that he was
ineligible for appointment to the Tribunal under Section 2 of Chapter IV.
Article 58
The decision on any proposal to disqualify a conciliator or arbitrator
shall be taken by the other members of the Commission or Tribunal as the case may be,
provided that where those members are equally divided, or in the case of a proposal to
disqualify a sole conciliator or arbitrator, or a majority of the conciliators or
arbitrators, the Chairman shall take that decision. If it is decided that the proposal is
well-founded the conciliator or arbitrator to whom the decision relates shall be replaced
in accordance with the provisions of Section 2 of Chapter III or Section 2 of Chapter IV.
CHAPTER VI
Cost of Proceedings
Article 59
The charges payable by the parties for the use of the facilities of the
Centre shall be determined by the Secretary-General in accordance with the regulations
adopted by the Administrative Council.
Article 60
Each Commission and each Tribunal shall determine the fees and
expenses of its members within limits established from time to time by the Administrative
Council and after consultation with the Secretary-General.
Nothing in paragraph (1) of this Article shall preclude the parties
from agreeing in advance with the Commission or Tribunal concerned upon the fees and
expenses of its members.
Article 61
In the case of conciliation proceedings the fees and expenses of
members of the Commission as well as the charges for the use of the facilities of the
Centre, shall be borne equally by the parties. Each party shall bear any other expenses it
incurs in connection with the proceedings.
In the case of arbitration proceedings the Tribunal shall, except as
the parties otherwise agree, assess the expenses incurred by the parties in connection
with the proceedings, and shall decide how and by whom those expenses, the fees and
expenses of the members of the Tribunal and the charges for the use of the facilities of
the Centre shall be paid. Such decision shall form part of the award.
CHAPTER VII
Place of Proceedings
Article 62
Conciliation and arbitration proceedings shall be held at the seat of the
Centre except as hereinafter provided.
Article 63
Conciliation and arbitration proceedings may be held, if the parties so
agree,
at the seat of the Permanent Court of Arbitration or of any other
appropriate institution, whether private or public, with which the Centre may make
arrangements for that purpose; or
at any other place approved by the Commission or Tribunal after
consultation with the Secretary-General.
CHAPTER VIII
Disputes Between Contracting States
Article 64
Any dispute arising between Contracting States concerning the
interpretation or application of this Convention which is not settled by negotiation shall
be referred to the International Court of Justice by the application of any party to such
dispute, unless the States concerned agree to another method of settlement.
CHAPTER IX
Amendment
Article 65
Any Contracting State may propose amendment of this Convention. The text
of a proposed amendment shall be communicated to the Secretary-General not less than 90
days prior to the meeting of the Administrative Council at which such amendment is to be
considered and shall forthwith be transmitted by him to all the members of the
Administrative Council.
Article 66
If the Administrative Council shall so decide by a majority of
two-thirds of its members, the proposed amendment shall be circulated to all Contracting
States for ratification, acceptance or approval. Each amendment shall enter into force 30
days after dispatch by the depositary of this Convention of a notification to Contracting
States that all Contracting States have ratified, accepted or approved the amendment.
No amendment shall affect the rights and obligations under this
Convention of any Contracting State or of any of its constituent subdivisions or agencies,
or of any national of such State arising out of consent to the jurisdiction of the Centre
given before the date of entry into force of the amendment.
CHAPTER X
Final Provisions
Article 67
This Convention shall be open for signature on behalf of States members of
the Bank. It shall also be open for signature on behalf of any other State which is a
party to the Statute of the International Court of Justice and which the Administrative
Council, by a vote of two-thirds of its members, shall have invited to sign the
Convention.
Article 68
This Convention shall be subject to ratification, acceptance or
approval by the signatory States in accordance with their respective constitutional
procedures.
This Convention shall enter into force 30 days after the date of
deposit of the twentieth instrument of ratification, acceptance or approval. It shall
enter into force for each State which subsequently deposits its instrument of
ratification, acceptance or approval 30 days after the date of such deposit.
Article 69
Each Contracting State shall take such legislative or other measures as
may be necessary for making the provisions of this Convention effective in its
territories.
Article 70
This Convention shall apply to all territories for whose international
relations a Contracting State is responsible, except those which are excluded by such
State by written notice to the depositary of this Convention either at the time of
ratification, acceptance or approval or subsequently.
Article 71
Any Contracting State may denounce this Convention by written notice to
the depositary of this Convention. The denunciation shall take effect six months after
receipt of such notice.
Article 72
Notice by a Contracting State pursuant to Articles 70 or 71 shall not
affect the rights or obligations under this Convention of that State or of any of its
constituent subdivisions or agencies or of any national of that State arising out of
consent to the jurisdiction of the Centre given by one of them before such notice was
received by the depositary.
Article 73
Instruments of ratification, acceptance or approval of this Convention and
of amendments thereto shall be deposited with the Bank which shall act as the depositary
of this Convention. The depositary shall transmit certified copies of this Convention to
States members of the Bank and to any other State invited to sign the Convention.
Article 74
The depositary shall register this Convention with the Secretariat of the
United Nations in accordance with Article 102 of the Charter of the United Nations and the
Regulations thereunder adopted by the General Assembly.
Article 75
The depositary shall notify all signatory States of the following:
signatures in accordance with Article 67;
deposits of instruments of ratification, acceptance and approval in
accordance with Article 73;
the date on which this Convention enters into force in accordance with
Article 68;
exclusions from territorial application pursuant to Article 70;
the date on which any amendment of this Convention enters into force in
accordance with Article 66; and
denunciations in accordance with Article 71.
DONE at Washington, in the English, French and Spanish languages, all
three texts being equally authentic, in a single copy which shall remain deposited in the
archives of the International Bank for Reconstruction and Development, which has indicated
by its signature below its agreement to fulfil the functions with which it is charged
under this Convention.
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