99083 Panama Ratifies the ICSID Convention On April 8, 1996, Panama ratified the ICSID Convention. In accordance with its Article 68, the Convention entered into force for Panama 30 days later, on May 8, 1996. This brought to 20 the num- ber of Contracting States from the Latin American and Caribbean Region, the other nineteen being Argentina, Bahamas, Barbados, Bolivia, Chile, Costa Rica, Ecuador, El Salvador, Grenada, Guyana, Honduras, Jamaica, Nicaragua, Paraguay, Peru, St. Kitts and Nevis, St. Lucia, Trinidad and Tobago and Venezuela. In total, there are now 139 signatories of the Convention and 126 Con tracting States. The current list of Contracting States and other signatories of the ICSID Convention is set out at pages 10-11 of this issue . Thirteenth Joint ICSID/ Joint Conference on the AAA/ICC International Resolution of International Court of Arbitration Trade and Investment Colloquium on Interna- Disputes in Africa, tional Arbitration, New York, Johannesburg, November 15, 1996 March 6-7, 1997 ICSID, the American Arbitration Association As mentioned in the last issue of News from (AAA) and the International Chamber of Commerce ICSID, ICSID, the Association of Arbitrators (ICC) International Court of Arbitration will this (Southern Africa), the International Chamber of year be co-sponsoring the thirteenth in their se- Commerce (ICC) International Court of Arbitra- ries of joint colloquia on international arbitration. tion and the London Court of International Ar- bitration will be jointly sponsoring a conference The thirteenth colloquium, which will address on the resolution of international trade and in- the topic of "the role of party autonomy in interna- tional arbitration," will be hosted by the AAA. It vestment disputes in Africa. The conference will wilLtake place on Noveihher 15, 1996 at the Hotel take place on March 6-7, 1997 in the Crowne Inter-Continental New York, 111East48th Street, Plaza Hotel, Conference Centre Sandton in New York, NY 10017. Further details on the Johannesburg, South Africa. More details on this colloquium are provided at page 9. conference are provided at page 9. 2 Disputes Before the Centre • Leaf Tobacco A. Michaelides S.A. and Greek Albanian Leaf Tobacco & Co. S.A. v. Republic of Albania (Case ARB/95/1) • American Manufacturing & Trading, Inc. v. June 10, 1996 Republic of Zaire (Case ARB/93/1) The Claimants inform the Centre that they choose the formula provided for in June 20, 1996 Article 37(2)(b) of the Convention for the The Tribunal appoints an expert to prepare a constitution of an Arbitral Tribunal, that report regarding damages. is, one arbitrator appointed by each party September 5, 1996 and a third, presiding, arbitrator appointed The expert submits his report. by agreement of the parties. • Seditex Engineering Beratungsgesell- • Cable Television of Nevis, Ltd. and Cable schaft fiir die Textilindustrie m.b.H. v. Gov- Television of Nevis Holdings, Ltd. v. Fed- ernment of Madagascar (Case CONC/94/1) eration of St. Kitts and Nevis (Case ARB/ 95/2) May20, 1996 The Conciliation Commission meets with the April 2, 1996 parties in Paris. The Claimants file their Response to the June 20, 1996 Objections to Jurisdiction. The Conciliation Commission closes the pro- April 23, 1996 ceeding. The Respondent files its Observations on July 19, 1996 the Claimants' Response to the Objections to The Conciliation Commission draws up its re- Jurisdiction. port. July 1-2, 1996 • Philippe Gruslin v. Government of Malaysia The Tribunal meets with the parties in Barba- (Case ARB/94/1) dos. April 24, 1996 • Al)toine Goetz and others v. Republic of The Order of the Sole Arbitrator taking note Burundi (Case ARB/95/3) of the discontinuance of the proceeding is noti- June 26, 1996 fied to the parties. The Tribunal is constituted. Its members • Tradex Bellas S.A. v. Republic of Albania are: Professor Prosper Weil (French), Presi- (Case ARB/94/2) dent, Judge Mohammed Bedjaoui (Algerian) and Professor Jean-Denis Bredin (French). April 10, 1996 The Tribunal holds its first session with the • Compaiiia del Desarrollo de Santa Elena parties in Frankfurt. S.A. v. Government of Costa Rica (Case ARB/96/1) April 19, 1996 The Respondent files its Objections to Juris- Since the publication of the last issue of diction. News from ICSID, there have been no devel- opments to report in this case. June 10, 1996 The parties file their Observations on the Ob- • Misima Mines Pty. Ltd. v. Independent jections to Jurisdiction. State of Papua New Guinea (Case ARB/ 96/2) August 1, 1996 The Claimant files its further Observations on April 29, 1996 the Objections to Jurisdiction. The Secretary-General registers a request for the institution of arbitration proceedings. August 9, 1996 The Respondent files its further Observations • Fedax N.V. v. Republic of Venezuela on the Objections to Jurisdiction. (Case ARB/96/3) September 10, 1.996 June 26, 1996 The Tribunal meets with the parties in The Secretary-General registers a request London. for the institution of arbitration proceedings. 3 The Conciliation Commission in SEDITEX v. Madagascar (JCSID Case CONG 19411). Pictured from right to left are Professor Dominique Carreau, Conciliator; Mr. Andre Faures, President of the Conciliation Com- mission and Judge Raymond Ranjeva, Conciliator. Also pictured to the left is Mr. Nassib G. Ziade, Secre- tary of the Commission and Counsel, ICSID. ICSID Conciliation by Nassib G. Ziade, Counsel, ICSID Introduction of Investment Disputes between Host States of Arab Investments and Nationals of Other Arab The International Centre for Settlement of States, an Arab multilateral treaty which is other- Investment Disputes (ICSID or the Centre) is es- wise closely modeled on the ICSID Convention). tablished under a multilateral treaty, the 1965 Con- In such a case, however, unless the parties other- vention on the Settlement of Investment Disputes wise agree, neither may in the·arbitration proceed- between States and Nationals of Other States (the ing "invoke or rely on any views expressed or ICSID Convention). Under the ICSID Convention statements or admissions or offers of settlement and the various rules adopted pursuant to it, the made by the other party in the conciliation pro- Centre provides facilities for the settlement by ar- ceedings, or the report or any recommendations bitration of investment disputes between States made by the Commission," as stated in Article 35 parties to the Convention (Contracting States) and ofthe ICSID Convention. Furthermore, ICSIDAr- investors who qualify as nationals of other Contract- bitration Rule 1(4) prevents any person who has ing States. It also provides facilities for conciliation acted as a conciliator in the conciliation proceeding proceedings in respect of these disputes. In both from being appointed as a member of the Arbitral cases, for recourse to arbitration or to conciliation, Tribunal. The first provision is designed to ensure the parties must have consented in writing to sub- parties to conciliation proceedings that their pro- mit their disputes to such procedures. posals or disclosures to the other side in the course of the conciliation for the sole purpose of reaching The ICSID Convention does not prevent the par- an amicable settlement will not be relied upon to ties, if they so desire, from agreeing to resort first their detriment in any subsequent arbitration pro- to conciliation and, should they fail to teach a settle- ceeding. The second provision is intended to ensure ment, to submit their dispute to arbitration (though that the arbitrator will come to the arbitration pro- the ICSID Convention does not make recourse to ceeding without any pre-conception and that he will conciliation a prerequisite to recourse to arbitra- not use in arbitration the privileged knowledge of tion as doesthe 1974 Convention on the Settlement the dispute that he has acquired in the conciliation 4 proceeding. Both provisions are aimed at fostering as those that govern arbitration. As in the case of an environment of free and uninhibited negotiations the arbitration proceedings, the machinery is set in conciliation proceedings under which either party in motion by a written conciliation request submit- would not be restrained by the fear of prejudicing ted, in accordance with Rule 1 of the ICSID Rules itself should the conciliation prove to be fruitless. of Procedure for the Institution of Conciliation and Arbitration Proceedings (ICSID Institution Rules), While much literature has been devoted to arbi- by either party or both parties to the ICSID Secre- tration under the ICSID Convention, few writings tary-General. The request must, pursuant to Ar- have addressed the ICSID system of conciliation. As ticle 28(2) of the ICSID Convention and ICSID detailed below, this system is, in some respects, simi- Institution Rule 2, designate the parties to the dis- lar to arbitration under the ICSID Convention and, pute, state their addresses, contain information con- in other respects, similar to such other systems of cerning the issues in dispute indicating that the conciliation as the conciliation under the auspices of dispute is a legal one arising directly out of an in- the International Chamber of Commerce (ICC) and vestment and state with the appropriate documen- the conciliation under the Conciliation Rules of the tation that the other jurisdictional requirements United Nations Commission on International Trade under the ICSID Convention are met. After ac- Law (UNCITRAL). knowledging the receipt of the conciliation request, according to ICSID Institution Rule 5(l)(a), the Distinctive Features of the JCSID Conciliation System ICSID Secretary-General has two possible courses of action. First, he may, consistently with Article The main distinctive feature of consent to ICSID 28(3) of the ICSID Convention and ICSID Institu- conciliation-and one that it shares with ICSID tion Rule 6(l)(a), register the request in the Con- arbitration-is the binding character of such con- ciliation Register and, on the same day, notify the sent. Once the parties have consented to resort to parties of the registration. In such case, he will also ICSID conciliation, they are, as in the case of the invite them to proceed to constitute the Concilia- arbitration proceedings, bound to carry out their tion Commission, as required by ICSID Institution undertaking. Consent to have recourse to ICSID Rule 7 (d). Secondly, however, if the Secretary- conciliation is irrevocable and cannot be withdrawn General "finds, on the basis of the information con- unilaterally by a party. In contrast, in the case of tained in the [conciliation] request, that the dispute ICC and UNCITRAL conciliation, a party may pre- is manifestly outside the jurisdiction of the vent conciliation from going forward even if both Centre," then he must refuse registration, pursu- parties had previously agreed to resort to such con- ant to Article 28(3) of the ICSID Convention and ciliation. This, of course, allows for the early termi- ICSID Institution Rule 6(1) (b), with the conse- nation of proceedings thought to be fruitless. In quence that the request will not reach a Concilia- comparison, the approach followed by the ICSID tion Commission. As in the case of arbitration system of conciliation has the merit of giving a requests, the Secretary-General's refusal to regis- greater opportunity for the conciliation mechanism ter a conciliation request is not appealable. On the to work. .other hand, again as in the case of arbitration, reg- istration of a request by the Secretary-General does From the initiation of the proceeding through the not at a later stage preclude a Conciliation Com- constitution of the Commission or Tribunal, the mission, in accordance with Article 32 of the ICSID procedures for ICSID conciliation and for ICSID Convention and ICSID Conciliation Rule 29, from arbitration are almost identical. In regard to the finding that the dispute is outside the jurisdiction stages following the constitution of the Conciliation of the Centre. Commission, the rules applicable to ICSID concili- ation proceedings, while similar to the rules of other Upon registration of the request, the parties conciliation systems such as those of the ICC and should proceed to constitute a Conciliation Com- the UNCITRAL, differ from the rules applicable to mission as soon as possible. Although the ICSID ICSID arbitration proceedings. Convention and Conciliation Rules give the parties wide latitude in respect of the constitution of a Con- Similarities between ICSID Conciliation and ICSID ciliation Commission, they also assure that a fail- Arbitration ure of the parties to agree or cooperate with each other will not frustrate the proceedings. In this re- In keeping perhaps with the binding character spect also, the arrangements for ICSID conciliation of the undertaking to resort to ICSID conciliation, proceedings are similar to those applicable to arbi- the rules that govern the institution and registra- tration proceedings. The ICSID Convention and tion of an ICSID conciliation request are the same Conciliation Rules give the parties the opportunity 5 both tq agree on the number of conciliators (subject Rule 6(2), conciliators furthermore undertake to to the requirement provided for by Article 29{2){a) keep confidential "all information" coming to their of the ICSID Convention that the number be one or kiiowledge as a result of their participation in the uneven), on the method of their appointment and proceeding, "as well as the contents of any report on the actual appointment of conciliators. If the par- drawn up by the Commissign." All of these arrange- ties cannot themselves succeed in forming such a ments duplicate the corresponding provisions on Conciliation Commission, fallback provisions of the arbitration proceedings in the ICSID Convention ICSID Convention and Conciliation Rules can be and the rules adopted pursuant to it (except that in brought into play to ensure a timely constitution of the case of conciliation, unlike arbitration, there are the Commission. Thus, Article 29(2)(b) of the ICSID no restrictions as to appointment of co-nationals of Convention and ICSID Conciliation Rule 2 (3) pro- the parties). vide that in the absence of party agreement on the method of constitution of the Commission within Some of the features of ICSID conciliation can sixty dfl_ys after registration of the conciliation re- be found in other public international law concilia- quest, either party may require that the Concilia- tion systems. For instance, the 1982 United Nations tion Commission comprise three conciliators, one Convention on the Law of the Sea (UN CLOS) pro- appointed by each party and a third, presiding, con- vides for the "compulsory" submission to concilia- ciliator, appointed by agreement of the parties. Ar- tion procedure of certain disputes relating to marine ticle 30 of the ICSID Convention and ICSID scientific research in the coastal State's exclusive Conciliation Rule 4 further provide that if the Com- economic zone or on its continental shelf, of certain mission is not constituted within ninety days after disputes relating to the living resources of the registration of the conciliation.request, or such other coastal State's exclusive economic zone and, in cer- period as the parties may agree, the Chairman of tain cases, of disputes relating to sea boundary de- the ICSID Administrative Council (the President limitations or involving historic bays or titles. Any of the World Bank) will, at the request of either party which is notified by the other party to the party, make the necessary appointments. The Chair- dispute shall, pursuant to Section 2 of Annex V of man is restricted by Article 31(1) of the ICSID Con- the UN CLOS, be "obliged" to submit to the concili- vention in his choice of conciliators to members of ation proceeding, even though "[t]he report of the the Panel of Conciliators maintained by the Cen- commission, including its conclusions or recommen- tre,-whereas the parties may, but need not,_ appoint dations, shall not be binding upon the parties." As conciliators from the Panel. Should the parties de- explained below, the ICSID system of conciliation cide to appoint conciliators from outside the ICSID differs, however, from the UNCLOS system insofar Panel of Conciliators, the appointees must, accord- as the latter provides that the failure of a party to ing to Article 31(2) of the ICSID Convention, pos- submit to such conciliation proceedings "shall not sess the same qualifications as persons serving in constitute a bar to the proceedings." the Panel. Article 14(1) of the ICSID Convention provides that Panel members "shall be persons of Differences between ICSID Conciliation and ICSID . high moral character and recognized competence Arbitration in the fields oflaw, commerce, industry or finance, who may be relied upon to exercise independent Following the constitution of the Conciliation judgment." In whichever way the conciliators have Commission, there are marked differences between been appointed, they must confirm that they pos- the rules applicable to ICSID conciliation proceed- sess those qualities in relation to the case before ings and the rules applicable to ICSID arbitration them. In this respect, conciliators are required by proceedings. The differences reflect the basic dis- Conciliation Rule 6(2) to sign, no later than at the tinction between conciliation, which seeks to bring end of the first session of the Commission, a decla- the parties to an agreed settlement, and arbitra- ration stating that they will "not accept any instruc- tion, which is intended to lead to a binding and tion or compensation with regard to the proceeding enforceable determination of the dispute by the from any source except as provided i_n the Conven- Arbitral Tribunal. tion on the Settlement of Investment Disputes and in the Regulations and Rules made pursuant As in other conciliation systems, ICSID con- thereto." In their declaration pursuant to Concilia- ciliation may result in no more than a recommen- tion Rule 6(2), conciliators are also required to dis- dation to the parties of terms for the settlement close any previous or subsisting "professional, of their dispute. An IC SID Conciliation Commis- business and other relationships" between them and sion has, unlike an ICSID Arbitral Tribunal, the parties that might call into question their inde- no power to impose on the parties a decision.re- pendence. In their declaration under Conciliation garding their dispute. Its duty is instead, under 6 Article 34(1) of the ICSID Convention, "to clarify Other provisions of the ICSID Conciliation Rules the issues in dispute between the parties and to reflect the flexible and informal character of ICSID endeavour to bring about agreement between them conciliation procedures. Thus, while, under ICSID upon mutually acceptable terms." In one concilia- Arbitration Rule 29, an ICSID arbitration proceed- tion case submitted to ICSID, the sole conciliator ing comprises, unless the parties otherwise agree, stated in his recommendation that he conceived his separate written and oral phases of procedure, the task as being Conciliation Rules allow the intermixing of the two procedures. Though ICSID Conciliation Rule 25(1) to examine the contentions raised by the par- requires the President of the Conciliation Commis- ties, to clarify the issues, and to endeavour to sion to invite each party to file, within thirty days evaluate their respective merits and the like- upon the constitution of the Commission or such lihood of their being accepted, or rejected, in longer time limit as he may fix, a written statement Arbitration or Court proceedings, in the hope of its position, the same provision authorizes either that such evaluation may assist the parties in party "at any stage of the proceeding" to "file such reaching an agreed settlement. other written statements as it deems useful and rel- evant." As to the oral procedure, the Commission may, If the parties reach such an agreed settlement, consistently with ICSID Conciliation Rule 22(3), re- the Commission shall, pursuant to Article 34(2) of quest, at any stage of the proceeding, "from either the ICSID Convention and ICSID Conciliation Rule party oral explanations, documents and other infor- 30(1), close the proceedings and draw up a report mation" as well as "evidence from other persons" and, noting the issues in dispute and recording that the pursuant to ICSID Conciliation Rule 23, may call parties have reached agreement. ICSID Concilia- witnesses and experts. ICSID Conciliation Rule 28(1) tion Rule 30( 1) further provides that the parties may likewise provides that either party may "at any stage request that the report record the detailed terms of the proceeding, request that the Commission hear and conditions of their agreement. Parties are nor- the witnesses and experts whose evidence the party mally bound by such an agreement, though the considers relevant." The sequence of the written state- ICSID Convention, unlike Article 13(3) of the ments and the oral evidence is therefore solely deter- UNCITRAL Conciliation Rules and Article 7(a) of mined by the progress of the settlement discussions the ICC Rules of Optional Conciliation, does not and the close association of the parties to the work of provide for this expressly nor does it require, un- the Commission. like the two other instruments, that the parties sign a settlement agreement. Another difference between ICSID arbitration proceedings and ICSID conciliation proceedings In order to enable the Conciliation Commission which stems from the latter's non-adversarial char- to perform its task efficiently, the ICSID Conven- acter is that, while under ICSID Arbitration Rule tion and Conciliation Rules set forth a flexible con- 35(2) and (3), witnesses and experts are obliged to ciliation procedure. Thus, Article 34(1) of the ICSID make solemn declarations upon their honour and Convention and ICSID Conciliation Rule 22(2) do conscience before giving their evidence or state- not require the Conciliation Commission to make ment, witnesses and experts called in conciliation its recommendations, if any, after completing the proceedings are exempted from such a requirement. examination of the issues. The Commission may 'lb contribute further to easing a settlement and instead make such recommendations "at any stage creating a less adversarial proceeding, Article 61(1) of the proceeding." Moreover, it may repeat its ef- of the ICSID Convention requires for all concilia- forts "from time to time." For the sake of the infor- tion proceedings that fees and expenses of mem- mality and the speedy progress of the proceeding, bers of the Commission as well as the charges for Paragraphs (1) and (2) ofICSID Conciliation Rule the use of the facilities of the Centre be borne 22 allow the Commission to make its recommenda- equally by the parties. The same approach is tions "orally or in writing" to the parties who "shall adopted by Article 17 of the UNCITRAL Concilia- be associated with its work as closely as possible." tion Rules and Article 9 of the ICC Rules of Op- These provisions are comparable to Article 7 of the tional Conciliation. This is not the case of arbitration UNCITRAL Conciliation Rules, according to which proceedings where, in accordance with Article 61(2) the conciliator, while taking into account "the wishes of the ICSID C~nvention, the Tribunal shall, sub- the parties may express," may "at any stage of the ject to a contrary agreement of the parties, decide conciliation proceedings, make proposals for a how and by whom, "the expenses incurred by the settlement of the dispute/' proposals which "need parties in connection with the proceedings" as well not be in writing." as "the fees and expenses of the members of the 7 Tribunal and the charges for the use of the facili- the pursuit of the arbitration proceeding and the ties of the Centre shall be paid/' rendition of the award. In addition, Article 53(1) of the ICSID Convention provides that the award ren- While the parties' undertaking to submit their dered by an Arbitral Tribunal is "binding" on the dispute to ICSID conciliation is binding on them, parties who must "abide by and comply with" its the parties are not bound to comply with the terms. Commission's recommendations. The provisions of the ICSID Convention with respect to conciliation Blending Conciliation and Arbitration Features proceedings strike a balance between these two con- siderations. On the one hand, parties to an ICSID It has been suggested (Broches, The Convention conciliation are, pursuant to Article 34(1) of the on the Settlement oflnvestment Disputes between ICSID Convention, under the obligation to "coop- States and Nationals of Other States, 136 Recueil erate in good faith with the Commission in order des cours 331, 337 (1972)) that parties to a con- to enable the Commission to carry out its func- ciliation proceeding may always agree in advance tions." ICSID Conciliation Rule 23 elaborates on to accept the Commission's recommendation as the implications of such a commitment. In addi- a binding determination of their dispute. Such tion to providing it with all relevant documents, an agreement will not, however, bestow on the information and explanations, parties must enable Commission's recommendation the status of an the Commission to hear such witnesses or experts arbitral award and will not extend to its recom- as it may desire. and to visit any place connected mendation the benefit of Article 54(1) of the with the dispute. They must also comply with any ICSID Convention. According to this provision, time limits agreed with or fixed by the Commis- each Contracting State, whether or not it or one sion. Similar obligations are provided for by Article of its nationals has been a party to the proceed- 11 of the UNCITRAL Conciliation Rules which ing, undertakes to recognize the final and bind- reads that "[t]he parties will in good faith co-oper- ing character of an ICSID arbitral award and to ate with the conciliator and, in particular, will enforce within its territories the pecuniary obli- endeavour to comply with requests by the concilia- gations imposed by that award "as if it were a tor to submit written materials, provide evidence final judgment of a court in that State." and attend meetings." On the other hand, if, at any stage of the ICSID conciliation proceeding, one While conciliation proceedings are distinct un- party fails to appear or participate in the proceed- der the ICSID system from arbitration proceed- ing or it appears to the Conciliation Commission ings, arbitrators may, at the request of the that there is no likelihood of agreement between parties, assist them in reaching a settlement to the parties, the Commission must, in accordance their dispute. In fact, under the 1984 ICSID Ar- with Article 34(2) of the ICSID Convention and bitration Rules, a pre-hearing conference may be ICSID Conciliation Rule 30(2) and (3), close the held between the Arbitral Tribunal and the par- proceeding and draw up a report recording the ties to facilitate an early amicable settlement. outcome. Furthermore, while Article 34(1) of the Whether or not as a result of such a pre-hearing ICSID Convention requires parties to give "their conference, the parties to arbitration proceedings most serious consideration" to the Commission's have reached settlement agreements during the recommendations and while the Preamble to the arbitral proceedings in the majority of cases ICSID Convention states that "due consider- which have been submitted to the Centre. In one ation" shall be given by the parties to the such case, the parties requested the Arbitral Tri- Commission's recommendations, parties are, as bunal to embody their settlement in an award. mentioned above, under no obligation to accept them. This contrasts with the situation that char- The true meaning of some of the terms used to acterizes an ICSID arbitration proceeding. There, refer to dispute-settlement mechanisms may be the neither the default and lack of cooperation by one source of difficulties. In this respect, some societies of the parties nor the inability of both parties to which have a cultural inclination towards concilia- reach an agreement may constitute an obstacle to tion may confuse this concept with arbitration. It is 8 therefore necessary for parties from different cul- New ICSID Publications tural backgrounds who are negotiating a dispute- settlement agreement to agree in advance in detail about the rules of the game, to understand their implications and to abide by them. New publications of the Centre include the Spring 1996 issue of the ICSID Review-Foreign Conclusion Investment Law Journal. The issue features the fol- lowing articles: "The Promotion and Protection of Providing for a compulsory means of dispute German Foreign Investment Abroad," by Joachim settlement which ends at most with a non-binding Karl; "Decisions ExAequo et Bono Under the ICSID recommendation may at first sight appear question- Convention," by Christoph Schreuer; and "The able, if not paradoxical. There are, however, a num- Implementation ofICSID ArbitrationAgreements," ber of reasons in favor of this approach. by Carolyn B. Lamm and Abby Cohen Smutny. Afirst_ reason is that a party, having consented initially to resort to a specific means of dispute The issue also includes a review by Alejandro A. settlement, should not be allowed to disregard Escobar of Recent Treaties for the Promotion and its commitment at a later stage. As the expres- Protection oflnvestment Concluded by Latin Ameri- sion of the initial wish of the parties, the dis- can States. Fourteen such treaties are also pub- pute-settlement clause is sometimes a "package lished in the issue. deal" carefully negotiated and agreed upon by the parties, which ought to be observed in good faith. Jan Paulsson and C.F. Amerasinghe provide For instance, when the parties agree in their con- the issue's reviews of The World Bank in a Chang- tract to submit future disputes to conciliation, ing World: Selected Essays and Lectures, Volume or to conciliation followed by arbitration in case II (Ibrahim F.I. Shihata) and The International conciliation proves to be fruitless, the concilia- Law on Foreign Investment (M. Sornarajah) re- tion clause should not be considered without spectively. effect or subject to further confirmation. On the contrary, conciliatory efforts should be exhausted The ICSID Review-Foreign Investment Law before full-scale adversarial proceedings are en- Journal, which appears twice yearly, is available gaged in. A party that does not believe in the on a subscription basis from the Johns Hopkins virtue of conciliation should not agree in the first University Press, Journals Publishing Division, place to insert a conciliation clause in its contract. 2715 North Charles Street, Baltimore, Maryl~d 21218-4319, U.S.A. Annual subscriptions rates (ex- A second reason in favor _of this approach is cluding postal charges) are US$55 for persons with that when a party is unwilling to submit to a con- a mailing address in a member country of the ciliation proceeding, that party is not necessar- Organisation for Economic Co-operation and De- ily opposed to conciliation per se. There may · velopment and US$27 .50 for others. simply be disagreement between the parties on the method of constitution of the Conciliation Other recent publications of the Centre include a Commission and on the actual appointment of new release (96-2) ofICSID's collection oflnvestment conciliators. It only seems reasonable in such a Treaties. Included in release 96-2 are 20 new bilat- case to give an appointing authority the power eral investment treaties entered into by some 15 coun- to take the necessary steps and make the rel- tries during the years 1994to1996. These areAlbania, evant designations in order to allow the concili- ation proceedings to take place. It is noteworthy Argentina, Barbados, Bolivia, Brazil, Chile, China, in this respect that the ICSID Convention con- Denmark, Ecuador, Germany, Jamaica, Latvia, Para- tains adequate safeguards, at least at the initial guay, Peru and the United Kingdom. Investment stages of the proceedill,gs, against the lack of Treaties (six volumes) may be purchased from Oceana agreement between the parties or the non-coop- Publications, Inc., 75 Main Street, Dobbs Ferry, New eration of either. York 10522, U.S.A. at US$595. 9 Thirteenth Joint ICSID/AAA/ 4:00 p.m. The Power of Parties to Choose and Exclude Applicable Law: ICC International Court of Emmanuel Gaillard, Shearman & Sterling Arbitration Colloquium on Howard M. Holtzmann, Former International Arbitration Judge, Iran-United States Claims Tribunal New York, November 15, 1996 Ahmed S . EL-Kosheri, Kosheri, Rashed & Riad The program for the colloquium announced at 5:00 p.m. Discussion page 1 is as follows: 5:30 p.m. Closing Remarks William K. Slate II, President, AAA 8:30 a.m. Registration of Participants 5:45 p.m. Adjournment 9:00 a.m. Welcome and Introduction Reception William K. Slate II, President, AAA 9:15 a.m. Recent Institutional Developments: ICC International Court ofArbitration, Alain Plantey, Chairman, ICC Court International Centre for Settlement ofInvestment Disputes, Ibrahim F.I. Shihata, Secretary-General, ICSID American Arbitration Association, William K. Slate II, President, AAA 10:10 a .m. Discussion 10:30 a.m. Coffee Break 11:00 a .m. Recognition of the Autonomy Princip'le: Treaties, National Legislation and Joint Conference on the the Courts: Resolution of International Karl-Heinz Bockstiegel, President, London Court of International Trade and Investment Arbitration Disputes in Africa 11:30 a.m. The Power of Parties to Organize the Arbitral Procedure: Chairman: Alain Plantey, Chairman, The topics to be discussed at the conference, ICC International Court ofArbitration announce d at page 1, will focus on dispute r eso- Marc Lalonde, Stikeman Elliott lution from the business perspective, responses Delissa A. Ridgway, Chair, Foreign to problems and changing r equirements of dis- pute resolution institutions, international dis- Claims Settlement Commission of pute r esolution rules and model legislation, the United States mediation and conciliation as alternatives for the 12:15 p .m. Luncheon settlement of trade and investment disputes and 2:00 p.m. The Power of Parties to Organize the national and regional options in Africa. Arbitral Procedure (continued): Keith Highet, Member, Inter-American The speakers at this conference will include Juridical Committee of the Organi- Dullah Omar, Alec Erwin, Ibrahim F.I. Shihata, zation of American States Bola A . Ajibola, Robert Brin e r, Karl-H e inz 2:30 p.m. Discussion Bockstiegel, Eric Schwartz, John Tackaberry, Chairman: Ibrahim F.I. Shihata, Gerold Herrmann, Pieter Sanders, Albert J . van Secretary-General, ICSID den Berg, Yves Derains and Richard Christie. 3:00 p.m. Institutional Discretion to Foster Arbitral Efficiency: Aron Broches, Former Secretary- General, ICSID Michael F. Hoellering, General Counsel, AAA Richard Hulbert, Cleary, Gottlieb Steen & Hamilton 10 List of Contracting States and Other Signatories of the ICSID Convention (as of September 15, 1996) The 139 States listed below have signed the Convention on the Settlement ofinvestment Disputes between States and Nationals of Other States on the dates indicated. The names of the 126 States that have depos- ited their instruments ofratification are in bold, and the dates of such deposit and of the attainment of the status of Contracting State by the entry into force of the Convention for each of them are also indicated. Deposit of Entry into Force State Signature Ratification of Convention Afghanistan Sep. 30, 1966 June 25. 1968 ,July 25, 1968 Albania Oct. 15, 1991 Oct. 15,' 1991 Nov. 14, 1991 Algeria Apr. 17, 1995 Feb.21, 1996 Mar. 22, 1996 Argentina May 21, 1991 Oct. 19, 1994 Nov. 18, 1994 Armenia Sep. 16, 1992 Sep. 16, 1992 Oct. 16, 1992 Australia Mar. 24, 1975 May 2, 1991 June 1,1991 Austria May 17, 1966 May 25, 1971 June 24, 1971 Azerbaijan Sep. 18, 1992 Sep. 18, 1992 Oct. 18, 1992 Bahamas Oct. 19, 1995 Oct. 19, 1995 Nov. 18, 1995 Bahrain Sep.22, 1995 Feb. 14, 1996 Mar. 15, 1996 Bangladesh Nov. 20, 1979 Mar. 27, 1980 Apr. 26, 1980 Barbados May 13, 1981 Nov. 1, 1983 Dec. 1, 1983 Belarus July 10, 1992 July 10, 1992 Aug.9, 1992 Belgium Dec. 15, 1965 Aug. 27, 1970 Sep.26, 1970 Belize Dec. 19, 1986 Benin Sep. 10, 1965 Sep. 6, 1966 Oct. 14, 1966 Bolivia May 3, 1991 June 23, 1995 July 23, 1995 Botswana Jan. 15, 1970 .Jan. 15, 1970 Feb. 14, 1970 Burkina Faso Sep. 16, 1965 Aug. 29, 1966 Oct. 14, 1966 Burundi Feb. 17, 1967 Nov. 5, 1969 Dec. 5, 1969 Cambodia Nov. 5, 1993 Cameroon Sep. 23, 1965 Jan.3, 1967 Feb. 2, 1967 Central African Republic Aug. 26, 1965 Feb.23, 1966 Oct. 14, 1966 Chad May 12, 1966 Aug. 29, 1966 Oct. 14, 1966 Chile Jan. 25, 1991 Sep.24, 1991 Oct. 24, 1991 China Feb. 9, 1990 Jan. 7, 1993 Feb. 6, 1993 Colombia May 18, 1993 Comoros Sep.2{!, 1978 Nov. 7, 1978 Dec. 7, 1978 Congo Dec. 27, 1965 June 23, 1966 Oct. 14, 1966 Costa Rica Sep. 29, 1981 Apr. 27, 1993 May 27, 1993 Cote d'Ivoire June 30, 1965 Feb. 16, 1966 Oct. 14, 1966 Cyprus Mar. 9, 1966 Nov. 25, 1966 Dec. 25, 1966 Czech Republic Mar. 23, 1993 Mar. 23, 1993 Apr. 22, 1993 Denmark Oct. 11, 1965 Apr. 24, 1968 May 24, 1968 Ecuador Jan. 15, 1986 ,Jan. 15, 1986 Feb. 14, 1986 Egypt, Arab Republic of Feb. 11, 1972 May 3, 1972 June 2, 1972 El Salvador June 9, 1982 Mar. 6, 1984 Apr. 5, 1984 Estonia June 23, 1992 June 23, 1992 Jul. 23, 1992 Ethiopia Sep. 21, 1965 Fiji July 1, 1977 Aug. 11, 1977 Sep. 10, 1977 Finland July 14, 1967 Jan. 9, 1969 Feb.8, 1969 France Dec. 22, 1965 Aug. 21, 1967 Sep.20, 1967 Gabon Sep. 21, 1965 Apr. 4, 1966 Oct. 14, 1966 Gambia, The Oct. 1, 1974 Dec. 27, 1974 Jan. 26, 1975 Georgia Aug. 7, 1992 Aug. 7, 1992 Sep. 6, 1992 Germany Jan.27, 1966 Apr. 18, 1969 May 18, 1969 Ghana Nov. 26, 1965 July 13, 1966 Oct. 14, 1966 Greece Mar. 16, 1966 Apr. 21, 1969 May 21, 1969 Grenada May 24, 1991 May 24, 1991 June 23, 1991 Guatemala Nov. 9, 1995 Guinea Aug. 27,1968 Nov. 4, 1968 Dec. 4, 1968 Guinea-Bissau Sep.4, 1991 Guyana July 3,, 1969 July 11, 1969 Aug. 10, 1969 Haiti Jan.30, 1985 Honduras May 28, 1986 Feb. 14, 1989 Mar. 16, 1989 Hungary Oct. 1, 1986 Feb. 4, 1987 Mar. 6, 1987 Iceland July 25, 1966 July 25, 1966 Oct. 14, 1966 Indonesia Feb. 16, 1968 Sep.28, 1968 Oct. 28, 1968 Ireland Aug. 30, 1966 Apr. 7, 1981 May7, 1981 Israel June 16, 1980 June 22, 1983 July 22, 1983 Italy Nov. 18, 1965 Mar. 29, 1971 Apr. 28, 1971 Jamaica June 23, 1965 Sep. 9, 1966 Oct. 14, 1966 11 Japan Sep.23, 1965 Aug. 17, 1967 Sep. 16, 1967 Jordan July 14, 1972 Oct. 30, 1972 Nov. 29, 1972 Kazakhstan July 23, 1992 Kenya May 24, 1966 Jan.3, 1967 Feb. 2, 1967 Kyrgyz, Republic of June 9, 1995 Korea, Republic of Apr. 18, 1966 Feb.21, 1967 Mar. 23, 1967 Kuwait Feb. 9, 1978 Feb. 2, 1979 Mar. 4, 1979 Lesotho Sep. 19, 1968 July 8, 1969 Aug. 7, 1969 Liberia Sep.3, 1965 June 16, 1970 July 16, 1970 Lithuania July 6, 1992 July 6, 1992 Aug. 5, 1992 Luxembourg Sep.28, 1965 July 30, 1970 Aug. 29, 1970 Madagascar June 1, 1966 Sep. 6, 1966 Oct. 14, 1966 Malawi June 9, 1966 Aug.23, 1966 Oct. 14, 1966 Malaysia Oct. 22, 1965 Aug.8, 1966 Oct. 14, 1966 Mali Apr. 9, 1976 Jan.3, 1978 Feb. 2, 1978 Mauritania July 30, 1965 Jan. 11, 1966 Oct. 14, 1966 Mauritius June 2, 1969 June 2, 1969 July 2, 1969 Micronesia June 24, 1993 June 24, 1993 July 24, 1993 Moldova Aug. 12, 1992 Mongolia June 14, 1991 June 14, 1991 July 14, 1991 Morocco Oct. 11, 1965 May 11, 1967 June 10, 1967 Mozambique Apr. 4, 1995 June 7, 1995 July 7, i995 Nepal Sep. 28, 1965 Jan. 7, 1969 Feb. 6, 1969 Netherlands May 25, 1966 Sep. 14, 1966 Oct. 14, 1966 New Zealand Sep. 2, 1970 Apr. 2, 1980 May 2, 1980 Nicaragua Feb.4, 1994 Mar. 20, 1995 Apr. 19, 1995 Niger Aug. 23, 1965 Nov. 14, 1966 Dec. 14, 1966 Nigeria July 13, 1965 Aug. 23, 1965 Oct. 14, 1966 Norway June 24, 1966 Aug. 16, 1967 Sep. 15, 1967 Oman May 5, 1995 July 24, 1995 Aug. 23, 1995 Pakistan July 6, 1965 Sep. 15, 1966 Oct. 15, 1966 Panama Nov. 22, 1995 Apr. 8, 1996 May 8, 1996 Papua New Guinea Oct. 20, 1978 Oct. 20, 1978 Nov. 19, 1978 Paraguay July 27, 1981 Jan. 7, 1983 Feb. 6, 1983 Peru Sep. 4, 1991 Aug. 9, 1993 Sep.8, 1993 Philippines Sep.26, 1978 Nov. 17, 1978 Dec. 17, 1978 Portugal Aug. 4, 1983 July 2, 1984 Aug. 1, 1984 Romania Sep. 6, 1974 Sep. 12, 1975 Oct. 12, 1975 Russian Federation June 16, 1992 Rwanda Apr. 21, 1978 Oct. 15, 1979 Nov. 14, 1979 Saudi Arabia Sep.28, 1979 May 8, 1980 June 7, 1980 Senegal Sep.26, 1966 Apr. 21, 1967 May 21, 1967 Seychelles Feb. 16, 1978 Mar. 20, 1978 Apr. 19, 1978 Sierra Leone Sep.27, 1965 Aug. 2, 1966 Oct. 14, 1966 Singapore Feb. 2, 1968 Oct. 14, 1968 Nov. 13, 1968 Slovenia Mar. 7, 1994 Mar. 7, 1994 Apr. 6, 1994 Slovak Republic Sep.27, 1993 May 27, 1994 June 26, 1994 Solomon Islands Nov. 12, 1979 Sep.8, 1981 Oct. 8, 1981 Somalia Sep.27, 1965 Feb.29, 1968 Mar. 30, 1968 Spain Mar. 21, 1994 Aug. 18, 1994 Sept. 17, 1994 Sri Lanka Aug.30, 1967 Oct. 12, 1967 Nov. 11, 1967 St. Kitts and Nevis Oct. 14, 1994 Aug. 4, 1995 Sep. 3, 1995 St. Lucia June 4, 1984 June 4, 1984 July 4, 1984 Sudan Mar. 15, 1967 Apr. 9, 1973 May 9, 1973 Swaziland Nov. 3, 1970 June 14, 1971 July 14, 1971 Sweden Sep.25, 1965 Dec.29, 1966 Jan. 28, 1967 Switzerland Sep.22, 1967 May 15, 1968 June 14, 1968 Tanzania Jan. 10. 1992 May 18, 1992 June 17, 1992 Thailand Dec. 6, °1985 Togo Jan.24, 1966 Aug. 11, 1967 Sep. 10, 1967 Tonga May 1, 1989 Mar. 21, 1990 Apr. 20, 1990' Trinidad and Tobago Oct. 5, 1966 Jan.3, 1967 Feb. 2, 1967 Tunisia May5, 1965 June 22, 1966 Oct. 14, 1966 Turkey June 24, 1987 Mar. 3, 1989 Apr. 2, 1989 Turkmenistan Sep. 26, 1992 Sep.26, 1992 Oct. 26, 1992 Uganda June 7, 1966 June 7, 1966 Oct. 14, 1966 United Arab Emirates Dec. 23, 1981 Dec. 23, 1981 Jan. 22, 1982 United Kingdom of Great Britain and Northern Ireland May 26, 1965 Dec. 19, 1966 Jan. 18, 1967 United States of America Aug. 27, 1965 June 10, 1966 Oct. 14, 1966 Uruguay May 28, 1992 Uzbekistan Mar. 17, 1994 July 26, 1995 Aug. 25, 1995 Venezuela Aug. 18, 1993 May 2, 1995 June 1, 1995 Western Samoa Feb. 3, 1978 Apr. 25, 1978 May 25, 1978 [Yugoslavia, Socialist Federal Republic of Mar. 21, 1967 Mar. 21, 1967 Apr. 20, 1967] Zaire Oct. 29, 1968 Apr. 29, 1970 May 29, 1970 Zambia June 17, 1970 June 17, 1970 July 17, 1970 Zimbabwe Mar. 25, 1991 May 20, 1994 June 19, 1994 ·<;"- 12 ~- ; / . ~- ·-' Recent Publications -~J-·Ib SID 0 Brewer, Thomas L. . '~~- . International Investment Dispute Settlement Procedures: The Evolving Regime for Foreign Di- rect Investment, 26 Law and Policy in International Business 633, 654-656 (1995). El Karkouri, Driss L'apport jurisprudentiel CIRDI aux contrats de genie civil dans les pays arabes, 1995 R evue de droit des affaires internationales 867. Emole, Chijioke E. Nigeria's LNG Venture: Fiscal Incentives, Investment Protection Schemes and ICSID Arbitration, 8 Af- rican Journal of International and Comparative Law 169 (1996). Gaillard, Emmanuel Centre International pour le reglement des di:fferends relatifs aux investissements: Chronique des sen- tences arbitrales, 123 Journal du droit international 273 (1996). Karl, Joachim The Promotion and Protection of German Foreign Investment Abroad, 11 ICSID Review-Foreign Investment Law Journal l, 20 (1996) . Kazazi, Mojtaba Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals 125-127, 167, 312-313 (1996). Lamm, Carolyn B. & Cohen Smutny, Abby .. · . The Implementation ofICSID Arbitration Agreements, 11 ICSID Review-Foreign Investment Law Jour- nal 64 (1996). ,: Parra, Antonio R. The Rights and Duties of ICSID Arbitrators, ICC International Court of Arbitration Bulletin, 1995 Spe- cial Supplement (The Status of the Arbitrator) 50. , Paulsson, Jan Arbitration Without Privity, 10 ICSID R eview-Foreign Investment Law Journal 232 (1995). Schreuer, Christoph Decisions Ex Aequo et Bono Under the ICSID Convention, 11 ICSID Review- Foreig n Investment Law Journal 37 (1996). Sornarajah, M. ICSID Involvement in Asian Foreign Investment Disputes: The AMCO and AAPL Cases, 4 Asian Year- book of International Law 69 (1994).