International Conciliation and Mediation at the PCA
In recent years, conciliation, mediation, and other alternatives to arbitration have received increased attention from the international community. Though the majority of the PCA’s docket comprises arbitrations, the PCA stands ready to support conciliations and mediations where its users consider such procedures are appropriate for their disputes.
Photo: Signature of the new Maritime Boundaries Treaty between Timor-Leste and Australia on 6 March 2018 in New York in the presence of the Secretary-General of the United Nations, H.E. Antonio Guterres, and the Conciliation Commission (PCA Case No. 2016-10).
In recent years, conciliation, mediation, and other alternatives to arbitration have received increased attention from the international community. Since 2017, the United Nations Commission on International Trade Law Working Group III has examined concerns arising from the investor-State dispute settlement system and considered potential reforms. The United Nations Convention on International Settlement Agreements Resulting from Mediation (commonly known as the “Singapore Convention”) also entered into force in 2020.
Though the majority of the PCA’s docket comprises arbitrations, the PCA stands ready to support conciliations and mediations where its users consider such procedures are appropriate for their disputes. Indeed, conciliation and mediation have a long history at the PCA. The 1899 and 1907 Hague Conventions for the Pacific Settlement of International Disputes recognize mediation, along with good offices and fact-finding commissions of inquiry, as important alternatives to binding arbitration. ‘Conciliation’ developed from the commission of inquiry’s approach in the 1905 PCA-supported Dogger Bank Case between Great Britain and Russia.
Conciliation involves the appointment of a neutral conciliator or commission composed of individuals trusted by the parties and with expertise in the legal and factual issues implicated in the parties’ dispute. The commission may explore with the parties the circumstances of their dispute, provide the parties with an objective view of the applicable law and any disputed issues of fact, and confer with the parties regarding potential areas for compromise or settlement. Ultimately, if no agreement is reached in the course of proceedings, the commission usually submits a report to the parties, which may include recommendations on the resolution of their dispute. In contrast to arbitration, conciliation does not result in any decision binding on the parties.
In 1937, a decision of the Administrative Council formally incorporated conciliation within the PCA’s scope of activities. Following this decision, the PCA supported three conciliation commissions involving the governments of Denmark and Lithuania, France and Switzerland, and Greece and Italy. In 1962 and 1996, the PCA published rules of procedure to enable parties to engage quickly with a conciliation process.
More recently, between 2016 and 2018 the PCA supported the conciliation proceedings in a maritime boundary dispute between Timor-Leste and Australia. The proceedings were initiated pursuant to Article 298 and Annex V of the United Nations Convention on the Law of the Sea (“UNCLOS”). Informed by the PCA Optional Conciliation Rules (1996), the conduct of proceedings were flexible and designed to build confidence between the parties with a view to the amicable resolution of the dispute. Following extensive meetings between the Conciliation Commission and the Parties, Timor-Leste and Australia negotiated and signed a new Maritime Boundaries Treaty in 2018 resolving their dispute.
The Timor Sea Conciliation illustrates some of the potential benefits of conciliation for disputing parties. Notably, conciliation allows the parties and the conciliator to explore issues and interests beyond purely legal rights. For example, a conciliation commission may consider what common interests the disputing parties share. Furthermore, proceedings may incorporate informal ex parte consultations to encourage the identification of such interests. Indeed, in the Commission in the Timor Sea Conciliation noted that the “most important discussions with each Party would not have occurred in a joint setting.”
Disputing parties may opt for conciliation for a variety of reasons. Notably, the flexibility of procedure in conciliation may encourage parties to identify common interests and agree to a settlement that acknowledges past disputes while also looking forward to a future relationship. As the international community continues to consider different forms of international dispute settlement, the PCA stands ready to provide the technical and administrative assistance that parties may require.