Comment

(i) This provision defines the scope of the Additional Facility by specifying three categories of proceedings which may be administered by the Secretariat of the Centre. There is a common requirement of all three categories, namely that the parties to the proceedings be a State (or a constituent subdivision or agency of a State) on the one hand and a national of another State on the other. The three categories of proceedings also share a common negative feature namely that they are not within the jurisdiction of the Centre, either because the requirements ratione personae are not met or because the dispute is not an investment dispute or, finally, because the type of proceeding, namely fact-finding is not provided for in the Convention.

(ii) It should be noted that in the case of conciliation and arbitration proceedings under (a) and (b) either the State party to the dispute or the State whose national is the other party to the dispute must be a Contracting State.

(iii) Paragraph (b) should be read in conjunction with Article 4(3) and (4).

Article 3
Convention Not Applicable

Since the proceedings envisaged by Article 2 are outside the jurisdiction of the Centre, none of the provisions of the Convention shall be applicable to them or to recommendations, awards, or reports which may be rendered therein.

Comment

This is an explicit reminder that the provisions of the Convention are not applicable to Additional Facility proceedings. With respect to arbitration proceedings this means, e.g., that awards, unlike awards rendered pursuant to the Convention, are not insulated from national law and that their recognition and enforcement will be governed by the law of the forum, including applicable international conventions.

Article 4

Access to the Additional Facility in Respect of Conciliation and Arbitration Proceedings Subject to Secretary-General's Approval

(1) Any agreement providing for conciliation or arbitration proceedings under the Additional Facility in respect of existing or future disputes requires the approval of the Secretary-General. The parties may apply for such approval at any time prior to the institution of proceedings by submitting to the Secretariat a copy of the agreement concluded or proposed to be concluded between them together with other relevant documentation and such additional information as the Secretariat may reasonably request.

(2) In the case of an application based on Article 2 (a), the Secretary-General shall give his approval only if (a) he is satisfied that the requirements of that provision are fulfilled at the time, and (b) both parties give their consent to the jurisdiction of the Centre under Article 25 of the Convention (in lieu of the Additional Facility) in the event that the jurisdictional requirements ratione personae of that Article shall have been met at the time when proceedings are instituted.

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