Arbitrators, conciliators and/or ad hoc
Committee members are selected to serve in ICSID proceedings through an appointment process
. Most arbitrators and conciliators are appointed by the parties to the dispute pursuant to an agreed method for constituting the Tribunal or Commission, or under a default method (Article 29(2)(b) and Article 37(2)(b) of the ICSID Convention, Article 6(3) of the Conciliation (Additional Facility) Rules, Article 6(1) of the Arbitration (Additional Facility) Rules).
If a Tribunal or Commission is not constituted within 90 days of a notice of registration of an ICSID or Additional Facility case, either party may request that the Chairman of the ICSID Administrative Council appoint the missing arbitrator or conciliator (Article 30 and Article 38 of the ICSID Convention, Article 6(4) of the Conciliation (Additional Facility) Rules and Article 6(4) of the Arbitration (Additional Facility) Rules). All ad hoc Committee members in ICSID Convention annulment cases are appointed by the Chairman.
Who may serve as an arbitrator, conciliator or ad hoc Committee member in ICSID proceedings?
The ICSID Convention provides guidance as to who may be designated to the Panel of Arbitrators and of Conciliators and serve in arbitration and conciliation proceedings (Articles 14(1), 31(2) and 40(2) of the Convention). The Additional Facility Rules contain corresponding provisions concerning the required qualifications (Article 8 of the Arbitration (Additional Facility) Rules, Article 7 of the Conciliation (Additional Facility) Rules). These stipulate that all ICSID arbitrators, conciliators and ad hoc Committee members be persons:
- of high moral character;
- with recognized competence in the fields of law, commerce, industry or finance; and
- who may be relied upon to exercise independent judgment.
In addition, the ICSID Convention and Additional Facility Rules contain certain nationality requirements applicable to each arbitration case. A majority of arbitrators on a Tribunal must be nationals of States other the State party to the dispute and the State whose national is a party to the dispute (Article 39 of the Convention, Arbitration Rule 1(3), Article 7 of the Arbitration (Additional Facility) Rules).
Considerations for Specific Appointments
There are several practical considerations that guide the selection of an appointee for a particular case. Although these may vary by case, the following factors are generally among the most important:
- Knowledge of the relevant law(s)
- Absence of Conflicts of interest
- Experience as an arbitrator or conciliator
- Language proficiency
- Availability/manageability of current caseload
- Cohesiveness of the Tribunal, Commission or Committee
- Other areas of expertise
May I be appointed to serve in an ICSID proceeding if I am not on the ICSID Panel of Arbitrators or the Panel of Conciliators?
ICSID Convention Cases
The parties to ICSID Convention arbitration or conciliation proceedings are free to select an arbitrator or conciliator from outside the relevant ICSID Panel and frequently do so.
In addition, the parties can agree that the Chairman of the Administrative Council or the Secretary-General of ICSID may appoint persons from outside the Panels of Arbitrators and of Conciliators. The parties may agree on using a ballot, list procedure or other means to facilitate the appointment (see Selection and Appointment of Tribunal Members – ICSID Convention Arbitration).
If a party fails to appoint or the parties are unable to agree on a candidate and a party requests the Chairman of the Administrative Council to make a default appointment, the Convention requires the Chairman to make that appointment from the relevant Panel.
- When a party requests that the Chairman appoint the arbitrator(s) not yet appointed pursuant to Article 38 of the Convention, the Chairman must select the appointee from the Panel of Arbitrators (Article 40 of the Convention).
- When a party requests that the Chairman appoint the conciliator(s) not yet appointed pursuant to Article 30 of the Convention, the Chairman must select the appointee from the Panel of Conciliators (Article 31(1) of the Convention).
- When a party requests annulment of an ICSID award, the Chairman must select the ad hoc Committee members from the Panel of Arbitrators (Article 52(3) of the Convention).
When a party makes a request for a default appointment in respect of the Sole Arbitrator or President of the Tribunal, ICSID first conducts a ballot procedure providing the parties with names of several candidates, who may or may not be members of the ICSID Panels of Arbitrators and of Conciliators.
Additional Facility Cases
The Panels of Arbitrators and of Conciliators are not applicable to proceedings under the Additional Facility Rules except if the parties agree otherwise (e.g., in the instrument providing the parties’ consent to arbitration or conciliation). The Chairman of the Administrative Council of ICSID is therefore not restricted to the Panels when making a default appointment (Article 10 of the Arbitration (Additional Facility) Rules, Article 10 of the Conciliation (Additional Facility) Rules).
How do I become designated to serve on an ICSID Panel?
Designations to the ICSID Panels are made by ICSID Member States. Each Member State is entitled to designate up to four persons to the Panel of Arbitrators and up to four persons to the Panel of Conciliators.
Member States are not required to designate their own nationals; they may select designees of any nationality. Designees serve for a term of six years and may serve on both Panels simultaneously. The six-year term is renewable.
The process by which each Member State identifies and selects Panel designees is entirely within the discretion of that State. If you are interested in being considered for a Panel designation by a Member State, you should direct any inquiry to the relevant governmental body.
Once a Member State has identified you to serve on an ICSID Panel, it will advise the Secretary-General of your name, address and nationality(ies) and provide your curriculum vitae. ICSID will then contact you to confirm that you are willing to serve. Finally, your name will be added to the official list of Panel Members.
In addition to designations by Member States, the Chairman of the Administrative Council may designate up to ten persons to each Panel. The Chairman selects designees with the required qualifications while striving to ensure that they represent the principle legal systems of the world and main forms of economic activity.