Proceedings under the Additional Facility are not governed by the ICSID Convention. In accordance with Article 5 of the Additional Facility Rules, however, certain provisions of the Administrative and Financial Regulations of ICSID apply mutatis mutandis in respect of proceedings under the Additional Facility. The Administrative and Financial Regulations are reprinted in ICSID Convention, Regulations and Rules, Document ICSID/15 (April 2006).
RULES GOVERNING THE ADDITIONAL FACILITY
FOR THE ADMINISTRATION OF PROCEEDINGS
BY THE SECRETARIAT OF THE
INTERNATIONAL CENTRE FOR SETTLEMENT
OF INVESTMENT DISPUTES
(ADDITIONAL FACILITY RULES)
(1) "Convention" means the Convention on the Settlement of
Investment Disputes between States and Nationals of Other States, submitted
to Governments by the Executive Directors of the International Bank for
Reconstruction and Development on March 18, 1965, which entered into force
on October 14, 1966.
(2) "Centre" means the International Centre for Settlement
of Investment Disputes established pursuant to Article 1 of the Convention.
(3) "Secretariat" means the Secretariat of the Centre.
(4) "Contracting State" means a State for which the Convention
has entered into force.
(5) "Secretary-General" means the Secretary-General of the
Centre or his deputy.
(6) "National of another State" means a person who is not,
or whom the parties to the proceeding in question have agreed not to treat
as, a national of the State party to that proceeding.
Additional Facility Rules
The Secretariat of the Centre is hereby authorized to administer, subject
to and in accordance with these Rules, proceedings between a State (or
a constituent subdivision or agency of a State) and a national of another
State, falling within the following categories:
(a) conciliation and arbitration proceedings for the settlement of
legal disputes arising directly out of an investment which are not within
the jurisdiction of the Centre because either the State party to the
dispute or the State whose national is a party to the dispute is not
a Contracting State;
(b) conciliation and arbitration proceedings for the settlement of
legal disputes which are not within the jurisdiction of the Centre because
they do 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 a Contracting State; and
(c) fact-finding proceedings.
The administration of proceedings authorized by these Rules is hereinafter
referred to as the Additional Facility.
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
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.
(3) In the case of an application based on Article 2(b), the Secretary-General
shall give his approval only if he is satisfied (a) that the requirements
of that provision are fulfilled, and (b) that the underlying transaction
has features which distinguish it from an ordinary commercial transaction.
(4) If in the case of an application based on Article 2(b) the jurisdictional
requirements ratione personae of Article 25 of the Convention shall
have been met and the Secretary-General is of the opinion that it is likely
that a Conciliation Commission or Arbitral Tribunal, as the case may be,
will hold that the dispute arises directly out of an investment, he may
make his approval of the application conditional upon consent by both
parties to submit any dispute in the first instance to the jurisdiction
of the Centre.
(5) The Secretary-General shall as soon as possible notify the parties
whether he approves or disapproves the agreement of the parties. He may
hold discussions with the parties or invite the parties to a meeting with
the officials of the Secretariat either at the parties' request or at
his own initiative. The Secretary-General shall, upon the request of the
parties or any of them, keep confidential any or all information furnished
to him by such parties or party in connection with the provisions of this
(6) The Secretary-General shall record his approval of an agreement pursuant
to this Article together with the names and addresses of the parties in
a register to be maintained at the Secretariat for that purpose.
Administrative and Financial Provisions
The responsibilities of the Secretariat in operating the Additional Facility
and the financial provisions regarding its operation shall be as those
established by the Administrative and Financial Regulations of the Centre
for conciliation and arbitration proceedings under the Convention. Accordingly,
Regulations 14 through 16, 22 through 30 and 34(1) of the Administrative
and Financial Regulations of the Centre shall apply, mutatis mutandis,
in respect of fact-finding, conciliation and arbitration proceedings under
the Additional Facility.
Fact-finding, conciliation and arbitration proceedings under the Additional
Facility shall be conducted in accordance with the respective Fact-finding
(Additional Facility), Conciliation (Additional Facility) and Arbitration
(Additional Facility) Rules set forth in Schedules A, B and C.