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The Additional Facility Rules were approved by the Administrative Council of ICSID in 1978. Under these Rules, the Secretariat of the Centre is authorized to administer the following types of proceedings between States (or subdivisions or agencies of States) and nationals of other States which fall outside the scope of the Convention: a) conciliation and arbitration proceedings for the settlement of investment disputes between parties one of which is not a Contracting State or a national of a Contracting State; b) conciliation and arbitration proceedings between parties at least one of which is a Contracting State or a national of a Contracting State for the settlement of disputes that do not directly arise out of an investment; and c) fact-finding proceedings. A. Additional Facility Conciliation/Arbitration According to Article 4 of the Additional Facility Rules, 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 of the Centre. The parties may apply for such approval at any time prior to the institution of proceedings, but it is advisable that such agreements be submitted for approval before they are concluded. In practice, agreements providing for Additional Facility conciliation or arbitration are most commonly concluded in respect of investment disputes which cannot be brought under the Convention because either the host or the home State of the investor is not a Contracting State. For such cases, Article 4 of the Additional Facility Rules requires that the Secretary-General give his approval of the agreement for recourse to Additional Facility conciliation or arbitration only if the parties also consent to have recourse to conciliation or arbitration under the Convention (in lieu of the Additional Facility) if, by the time that proceedings are instituted, both the host and the home States are Contracting States. 17 The latter type of consent may conveniently be coupled with the reference to the Additional Facility in a single clause. An arbitration clause of this type might read as follows. (a) the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (hereinafter the "Convention") if the Host State and the Home State have both become parties to the Convention at the time when any proceeding hereunder is instituted, or (b) the Arbitration (Additional Facility) Rules of the Centre if the jurisdictional requirements ratione personae of Article 25 of the Convention remain unfulfilled at the time specified in (a) above. B. Additional Facility Fact-Finding Additional Facility fact-finding is intended as a mechanism for preventing, rather than settling, disputes. Under Article 16 of the Fact-Finding (Additional Facility) Rules, the proceeding ends with a report that is "limited to findings of fact." The report has no binding character and must not even contain recommendations. Fact-finding can, however, provide parties with impartial assessments of facts which, if accepted by them, may prevent differences of view on specific factual issues from escalating into legal disputes. Also in contrast to the position with regard to conciliation and arbitration under the Additional Facility, any State and national of any other State (irrespective of whether these be Contracting States) may have recourse to Additional Facility fact-finding and the parties' agreement in this respect is not subject to approval by the Secretary-General of the Centre. Such an agreement might read as follows. 17 - For cases not involving an investment, Article 4 of the Additional Facility Rules requires that the Secretary-General give his approval only if he is satisfied that the underlying transaction has features that distinguish it from an "ordinary commercial transaction."
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