Other Procedures - Additional Facility Conciliation

3.4.9-Other-Procedures-LP.pngDisqualification of Conciliators

Either party may propose the disqualification of a Conciliator once the Commission has been constituted (Article 15 of the Conciliation (Additional Facility) Rules).

A proposal to disqualify a conciliator must be made promptly and, in any event, before the Commission first recommends terms of settlement of the dispute to the parties or when the proceeding is closed, whichever occurs earlier (Article 15(2) of the Conciliation (Additional Facility) Rules). Failure to object promptly will result in the rejection of the proposal.

Grounds for Disqualification

A conciliator may be disqualified on the ground of incapacity or if there is a manifest lack of the qualities required by Article 7 of the Conciliation (Additional Facility) Rules (Articles 14(2) and 15(1) of the Conciliation (Additional Facility) Rules).

Article 7 specifies the qualities required of conciliators. They must possess high moral character, recognized competence in the fields of law, commerce, industry or finance, and reliability to exercise independent judgment.

Procedure

Proposal to Disqualify

The challenge procedure starts with the submission by a party of a proposal to disqualify one or more members of the Commission.  The proposal is filed with the ICSID Secretary-General. A proposal to disqualify suspends the proceeding until a decision has been made.  Once received, the proposal is transmitted to the other party and to the Commission, and a schedule for submissions is established.  The schedule will provide an opportunity for the other party to make observations on the proposal as well as an opportunity for the challenged conciliator to furnish explanations.

Decision

The decision on the proposal is usually made by the other members of the Commission.  However, the decision will be made by the Chairman of the ICSID Administrative Council when the other members are unable to decide because they are equally divided or where the proposal refers to a sole conciliator or to a majority of the Commission (Article 15(5) of the Conciliation (Additional Facility) Rules).

Resumption of the Proceeding

The decision will either reject or uphold the proposal for disqualification.  If the proposal is rejected, the proceeding will resume immediately with the same Commission.

A proposal that is upheld results in the disqualification of the challenged conciliator and, consequently, a vacancy on the Commission.  Vacancies resulting from the disqualification of a conciliator are filled using the same method by which the disqualified conciliator had been appointed (Article 17 of the Conciliation (Additional Facility) Rules)).  If no new appointment is made and accepted within 45 days of the notification of the vacancy, the appointment will be made by the Chairman of the ICSID Administrative Council at the request of a party (Article 17(2) of the Conciliation (Additional Facility) Rules). As soon as the vacancy has been filled, the proceeding will resume from the point when the proposal was submitted (Article 18 of the Conciliation (Additional Facility) Rules).

Objections to Competence

Parties may object to the competence of the Commission (Article 36 of the Conciliation (Additional Facility) Rules). A party must raise these objections as early as possible and no later than the earlier of the first written statement or hearing.

When objections to competence are raised, the proceeding is suspended and the parties present their views on the objections (Article 36(4) of the Conciliation (Additional Facility) Rules. The Commission may either deal with the objections as a preliminary question or join them to the merits of the case. If the Commission overrules the objection or joins it to the merits, it resumes the conciliation immediately (Article 36(4) of the Conciliation (Additional Facility) Rules).

If it upholds the objection, the Commission closes the proceeding and issues a Report declining jurisdiction, in which it states its reasons (Article 36(4) of the Conciliation (Additional Facility) Rules).