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Conciliation - As Mechanism for Resolution of International Disputes

Courtesy/By: Rupal Khajanji | 2021-06-03 14:30     Views : 943

Conciliation is a method by which differences between nations may be settled  by means of a commision employed to consider and report upon such differences. When Conciliation is used, a commission of enquiry is used to investigate and report on the facts surrounding a particular dispute. Mr. Cot an author identifies core aspect of the conciliation involving states and even non states and the process as follows:

  1. The Conciliator must have the confidence of the disputants in order to be able to perform her function.
  2. The function of the conciliator is to examine the entire dispute, including clarification of the facts and the survey of both the applicable law and the non-juridicial element.
  3. The recommendation of the conciliator need not be based purely on the application of law. The relevant legal principle may be supplementary grounds or may be absent altogether.
  4.  The resolution proposed by the Conciliator is not binding on the disputants, who can refuse to implement the recommemdations.

Conciliation as a means for avoidance or resolution of conflict arising out of a treaty relationship can be found in a variety of other trade related agreements.These include the Organization for Economic Co-operation and Development and the United Nations Conference on Trade and Development ,where conciliation is used as a dispute avoidance technique.The international organizations in the international finance and development field make use of a variety of mechanisms for the settlement of internal disputes. Most of these organizations-the International Monetary Fund, the International Bank For Reconstruction and Development. Conciliation is less costly than the adjudicative methods, as it is a relatively informal and expeditious process.

ADVANTAGE OVER ARBITRATION

The informal conciliation environment is likely to be warmer than that of the adjudicative forum. The compromissory, "win-win" character of the conciliatory process is a major advantage since it facilitates the maintenance of a harmonious business relationship, whereas the use of an adjudicative form may rupture this connection. Thus, conciliation should be preferred in situations where the parties wish to preserve their extant contractual and commercial ties. For example, conciliation would facilitate the maintenance of a long-term contractor joint venture relationship. In addition, some entitiesfrom the Eastern Pacific Rim may continue to have a cultural preference for non adjudicative settlement methods although,this inclination is not uniformly strong.

RECENT CONCILIATION

The maritime boundary dispute between Timor-Leste and Australia was submitted to the compulsory conciliation procedure under the United Nations Convention on the Law of the Sea (UNCLOS).

COMPLIANCE

The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the "ICSIDConvention") addresses the request for conciliation, the constitution of the conciliation commission, and the subsequent proceedings. The commission can consist of a sole conciliator or any uneven number of conciliators appointed by partyagreement. The conciliation is to be conducted in accordance with the provisions of the ICSID Convention and Conciliation Rules, any question of procedure that is not covered by either shall be decided by the commission.

  • In essence, the conciliation process commences with the appointment of the conciliator (or commission). The conciliator will decide upon the format of the conciliation process, acting in accordance with any rules that the parties have agreed upon.
  • Investigation into the facts and the law will be undertaken by the conciliator, and both written and oral submissions from the parties agents will usually be presented. The conciliator may attempt to facilitate an amicable settlement during the process and, in any event, will be clarifying the parties' positions and eliciting indications of their inclination to reach a settlement.
  • Ultimately, the conciliator will record his recommendations in a report that will be provided to the disputants. If the disputants agree to accept the recommendations, the conciliator will draft a document, often referred to as the procds-verbal, which indicates that the conciliation has been successful and outlines the terms
    of the agreement.

Alternatively, if either party rejects the recommendations, the document will record the fact that the parties could not accept the proposals, with the conciliation
dissolving at this point.

CONCLUSION

Conciliation can fulfil a valuable role in transnational economic dispute settlement as an early, informal process that, if successful, obviates the necessity of resort to adjudicative mechanisms. 

This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect,Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A)And Other Related Laws Being Force In India, For The Time Being. Further, despite allefforts that have been made to ensure the accuracy and correctness of the information published, White Code Legal and Tax shall not be responsible for any errors caused due to
human error or otherwise.

Courtesy/By: Rupal Khajanji | 2021-06-03 14:30