Book contents
- Frontmatter
- Contents
- Foreword by Professor Sir Elihu Lauterpacht, CBE, QC
- Authors' preface to the second edition
- Table of cases
- List of abbreviations
- Text of the ICSID Convention
- Procedural calendar
- PREAMBLE
- CHAPTER I International Centre for Settlement of Investment Disputes
- CHAPTER II Jurisdiction of the Centre
- CHAPTER III Conciliation
- Article 28 Request for Conciliation
- Article 29 Composition of Commission
- Article 30 Appointment by Chairman
- Article 31 Qualities of Conciliators
- Article 32 Decision on Jurisdiction
- Article 33 Rules on Procedure
- Article 34 Conciliation Proceedings and Report
- Article 35 Non-Invocation in Subsequent Proceedings
- CHAPTER IV Arbitration
- CHAPTER V Replacement and Disqualification of Conciliators and Arbitrators
- CHAPTER VI Cost of Proceedings
- CHAPTER VII Place of Proceedings
- CHAPTER VIII Disputes between Contracting States
- CHAPTER IX Amendment
- CHAPTER X Final Provisions
- Final Clause
- Consolidated bibliography
- Index by article
- Index by subject
Article 35 - Non-Invocation in Subsequent Proceedings
from CHAPTER III - Conciliation
Published online by Cambridge University Press: 07 September 2010
- Frontmatter
- Contents
- Foreword by Professor Sir Elihu Lauterpacht, CBE, QC
- Authors' preface to the second edition
- Table of cases
- List of abbreviations
- Text of the ICSID Convention
- Procedural calendar
- PREAMBLE
- CHAPTER I International Centre for Settlement of Investment Disputes
- CHAPTER II Jurisdiction of the Centre
- CHAPTER III Conciliation
- Article 28 Request for Conciliation
- Article 29 Composition of Commission
- Article 30 Appointment by Chairman
- Article 31 Qualities of Conciliators
- Article 32 Decision on Jurisdiction
- Article 33 Rules on Procedure
- Article 34 Conciliation Proceedings and Report
- Article 35 Non-Invocation in Subsequent Proceedings
- CHAPTER IV Arbitration
- CHAPTER V Replacement and Disqualification of Conciliators and Arbitrators
- CHAPTER VI Cost of Proceedings
- CHAPTER VII Place of Proceedings
- CHAPTER VIII Disputes between Contracting States
- CHAPTER IX Amendment
- CHAPTER X Final Provisions
- Final Clause
- Consolidated bibliography
- Index by article
- Index by subject
Summary
The principle contained in Art. 35 was reflected in all drafts to the Convention (History, Vol. I, pp. 168, 170). As explained during the drafting, its purpose is to encourage the parties to remain flexible during conciliation proceedings and to dispel the fear that any position taken by them in conciliation might be used against them in subsequent adjudication (History, Vol. II, pp. 154/5, 328, 414). The idea was not uncontested during the deliberations and the possibility for parties to agree otherwise was adopted as a compromise (at pp. 263, 265, 328, 414/5, 786/7). Since reports and recommendations of conciliation commissions usually have their origin in offers made by the parties, reports and recommendations were included in the prohibition (at pp. 415, 787). Mr. Broches made it clear that if an agreement is reached by the parties to accept a recommendation of a conciliation commission, that agreement would not be excluded from invocation in subsequent judicial proceedings (at p. 787) (see also Art. 34, para. 31).
A related provision in the Arbitration Rules (Rule 1(4)) prohibits the appointment of a person, who had previously acted as conciliator, to an arbitral tribunal constituted in the same dispute1 (see Art. 40, para. 25).
- Type
- Chapter
- Information
- The ICSID ConventionA Commentary, pp. 453 - 454Publisher: Cambridge University PressPrint publication year: 2009