Selection and Appointment of Conciliators - Additional Facility Conciliation

3.4.4-Selection-and-Appointment-of-Conciliators-LP.pngOnce the number of conciliators and the method of their appointment have been determined, the conciliator(s) may be appointed. If the parties are unable to appoint all members of the Commission pursuant to the established method of appointment, the ICSID default mechanism may apply.

The parties are not required to select conciliators from the ICSID Panel of Conciliators, although they are welcome to do so.

The ICSID Conciliation (Additional Facility) Rules set forth certain requirements regarding the qualifications of appointees to Conciliation Commissions, but the parties otherwise are free to choose whomever they wish.

Requirements for Appointees

All ICSID conciliators must be persons:

  • of high moral character;
  • of recognized competence in the fields of law, commerce, industry or finance; and
  • who may be relied upon to exercise independent judgment (Article 7 of the Conciliation (Additional Facility) Rules).

There is no nationality restriction in conciliation cases.

Additional Considerations for Selecting Conciliators

In addition to the requirements established by the Additional Facility Rules, there are several practical considerations that parties should reflect upon when selecting a conciliator. Although these may vary depending on the specific characteristics and demands of each case, the following factors are generally among the most important:

  • Knowledge of the relevant law(s)
  • Experience as a conciliator
  • Absence of conflict of interest
  • Language proficiency
  • Availability/manageability of current caseload
  • Timeliness
  • Cohesiveness of the Commission
  • Other areas of expertise

Appointing a Conciliator

The parties should provide ICSID with the following information in respect of a conciliator appointment:

  • complete name;
  • contact information (i.e., mailing address, telephone and fax numbers, email); and
  • a current curriculum vitae.

Once a conciliator is appointed, ICSID seeks the appointee’s acceptance of the nomination. The Secretary-General then notifies the parties of the appointee’s acceptance or refusal.

If a conciliator refuses or fails to accept the appointment within 15 days, ICSID will invite the appointing party to nominate another conciliator.

Default Mechanism for Appointing a Conciliator 

If the parties are unable to appoint all members of the Commission within 90 days of the registration of the request for conciliation, either party may request that the Chairman of the ICSID Administrative Council appoint the conciliator(s) not yet appointed (Articles 6(4) and 10 of the Conciliation (Additional Facility) Rules).

When a party makes such a request in respect of the Sole Conciliator or President of the Commission, ICSID first conducts a ballot procedure:

  • ICSID provides the parties with a ballot form containing the names of several candidates.
  • Each party is given a short time limit to return its completed ballot form, indicating the candidates it accepts or rejects.
  • A party is not required to share its ballot with the other party.
  • If the parties agree on a candidate from the ballot, that person will be deemed to have been appointed by agreement of the parties.
  • If the parties agree on more than one proposed candidate, ICSID selects one of them and informs the parties of the selection.

A successful ballot is considered an appointment by agreement of the parties under the established method of constituting the Commission.

If there is no agreement by the parties, ICSID names a conciliator. Before the person is appointed, the parties are given the opportunity to raise any circumstance showing that the person lacks the required qualities under the Rules (Article 7 of the Conciliation (Additional Facility) Rules).

Until the process is completed, the parties may appoint conciliators under the established method of constitution or by agreement.

The Centre endeavors to complete the appointment process within 30 days of the request for appointment (Article 10(2) of the Conciliation (Additional Facility) Rules).