PCA Optional Rules for Conciliation of Disputes Relating to Natural Resources and/or the Environment Model Conciliation Clause

• Updated at: February 2023

CONTENTS

Introduction 213

Scope of Application (Article 1) 215

Commencement of Conciliation

Proceedings (Article 2) 215

Number of Conciliators (Article 3) 216

Appointment of Conciliators (Article 4) 216

Submission of Statements to Conciliator

(Article 5) 218

Representation and Assistance (Article 6) 219

Role of Conciliator (Article 7) 219

Communication Between Conciliator and

Parties (Article 8) 220

Disclosure of Information (Article 9) 220

Co-operation of Parties with Conciliator

(Article 10) 220

Suggestions by Parties for Settlement of

Dispute (Article 11) 220

Settlement Agreement (Article 12) 221

Confidentiality (Article 13) 221

Termination of Conciliation Proceedings

(Article 14) 222

Resort to Arbitral or Judicial Proceedings

(Article 15) 222

Competence of the Conciliation Commission

(Article 16) 223

Costs (Article 17) 223

Deposits (Article 18) 224

Role of Conciliator in Other Proceedings

(Article 19) 224

Admissibility of Evidence in Other

Proceedings (Article 20) 224

1 Other procedures consulted were the WIPO Mediation Rules, the ICSID Conciliation Rules, conciliation procedures in the United Nations Convention on the Law of the Sea, the United Nations Convention on Biological Diversity, and the Rotterdam Convention. The PCA Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment also provided guidance for the development of these rules. See the Introduction to the PCA Optional Conciliation Rules at pages 151-153, for additional general information on the use of conciliation procedures.

INTRODUCTION

The Rules are based primarily on the PCA Conciliation Rules and UNCITRAL

Conciliation Rules with changes in order to:

(i) reflect the public international law element which pertains to disputes which may involve States, utilization of natural resources and environmental protection issues, and international practice appropriate to such disputes;

(ii) reflect the particular characteristics of disputes having a natural resources conservation or environmental protection component;

(iii) indicate the role of the Secretary-General and the International Bureau of the Permanent Court of Arbitration (PCA) at The Hague; and (iv) provide freedom for the parties to choose to have a conciliation commission of one, three, or five persons.

The Rules are optional and emphasize flexibility and party autonomy. For example:

(i) The Rules, and the services of the Secretary-General and the International Bureau of the PCA, are available for use by private parties, other entities existing under national or international law, international organizations, and States;

(ii) The Rules may be used in relation to disputes between two or more States parties to a multilateral agreement relating to access to and utilization of natural resources concerning the interpretation or application of that agreement;

(iii) The parties are free to choose conciliators from the PCA Panel of Arbitrators constituted under the PCA Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment, or Members of the PCA;

(iv) The parties are free to choose expert witnesses from the PCA Panel of Scientific and Technical Experts constituted under the PCA Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment;

(v) The choice of conciliators or experts is not limited to PCA Panels;

(vi) The parties have complete freedom to agree upon any individual or institution to make appointments. In order to provide a failsafe mechanism to prevent frustration or delay of the conciliation, the Rules provide that the SecretaryGeneral will make appointments if the parties do not agree upon such a person or institution, or if that person or institution chosen does not act. Mindful of the possibility of multiparty involvement in disputes having a conservation or environmental component, these Rules provide specifically for multiparty choice of conciliators and sharing of costs. In the case of multiparty conciliation, all other articles should be interpreted in an analogous fashion. The framers of existing and future agreements may need to determine the relationship between these Rules and such agreements, and may modify them as necessary. Modifications to these Rules or such agreements as to jurisdiction ratione personae may be especially necessary to allow for the participation of non-state actors.

In some places these Rules refer to an ‘obligation to conciliate.’ This reference was intended to ensure harmony between these Rules and existing agreements that might require compulsory conciliation, or court decisions requiring parties to conciliate.

Consideration should be given to the method of implementing and enforcing a settlement agreement. UNCITRAL has recently considered various methods in the Report of the Working Group on Arbitration on the work of its thirty-fifth session (A/CN.9/506 2001). One method is that the settlement agreement could be stipulated to be binding and enforceable as a contract. Another is for an arbitral tribunal to be appointed to record the settlement agreement in the form of an arbitral award on agreed terms. Parties could also adapt the present rules to stipulate that the settlement agreement be binding and final as an arbitral award, however consideration must first be given to possible legislative changes necessary to render settlement agreements final and binding as arbitral awards.

Parties may choose to include a clause allowing for the option of referring the dispute being conciliated to arbitration; a model clause for this purpose is set forth at page 243.

2 Words used in the singular include the plural and vice-versa as the context may require.

PERMANENT COURT OF ARBITRATION OPTIONAL RULES FOR CONCILIATION OF DISPUTES RELATING TO NATURAL RESOURCES AND/OR THE ENVIRONMENT

Effective April 16, 2002

Scope of Application

Article 1

1. These Rules apply to conciliation of disputes relating to natural resources and/or the environment. For the purposes of these Rules, ‘conciliation’ means a process whereby parties request a third person, or a panel of persons, to assist them in their attempt...