Selection and Appointment of Tribunal Members - ICSID Convention Arbitration
3.1.4-Selection-and-Appointment-of-Tribunal-Members-LP.pngOnce the number of arbitrators and the method of their appointment have been determined, the arbitrator(s) may be appointed. If the parties are unable to appoint all members of the Tribunal pursuant to the established method of appointment, the ICSID default mechanism may apply.
Parties are not required to select arbitrators from the ICSID Panel of Arbitrators, although they are welcome to do so.
The Convention sets forth certain requirements regarding the nationality and qualifications of appointees to ICSID Tribunals, but the parties are otherwise free to choose whomever they wish.
Requirements for Appointees

Nationality Requirement
A majority of arbitrators on a Tribunal must be nationals of States other than the State party to the dispute and the State whose national is a party to the dispute (Article 39 of the Convention and Arbitration Rule 1(3)).

The nationality rule does not apply if the sole arbitrator or each individual member of the Tribunal is appointed by agreement of the parties.

Where a Tribunal consists of three members, an arbitrator cannot have the same nationality as either party unless both parties agree to that appointment.

In practice, this means that:

  • A sole arbitrator may not have the same nationality as either party unless both parties agree.
  • If each party has appointed a person of an excluded nationality (as approved by the other party), the parties must also agree on the appointment of the President of the Tribunal.

Arbitrator Qualifications

All ICSID arbitrators must 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 (Article 14(1) and Article 40(2) of the Convention).
Additional Considerations for Selecting Arbitrators

In addition to the requirements established by the Convention, there are several practical considerations that parties should reflect upon when selecting an arbitrator. 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)
  • Absence of conflict of interest
  • Experience as an arbitrator
  • Language proficiency
  • Availability of arbitrator/manageability of current caseload
  • Timeliness
  • Cohesiveness of the Tribunal
  • Other areas of expertise
Appointing an Arbitrator
The parties should provide ICSID with the following information in respect of an arbitrator appointment:    
  • complete name;
  • nationality;
  • contact information (i.e., mailing address, telephone and fax numbers, email); and
  • a current curriculum vitae
Once an arbitrator 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 an arbitrator refuses or fails to accept the appointment within 15 days, ICSID will invite the appointing party to nominate another arbitrator. 
Default Mechanism for Appointing an Arbitrator
If the parties are unable to appoint all members of the Tribunal within 90 days of the registration of the request for arbitration, either party may request that the Chairman of the ICSID Administrative Council appoint the arbitrator(s) not yet appointed (Article 38 of the ICSID Convention).
When a party makes such a request in respect of the Sole Arbitrator or President of the Tribunal, ICSID first conducts a ballot procedure:
  • ICSID provides the parties with a ballot form containing the names of several candidates, who may or may not be members of the ICSID Panel of Arbitrators.
  • 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 Tribunal.
If there is no agreement by the parties, ICSID names a person from the Panel of Arbitrators, pursuant to Article 38 of the Convention. 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 ICSID Convention (Article 14(1) of the Convention).
Until the process is completed, the parties may appoint missing arbitrators 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.
 
  • Meg Kinnear on "Arbitrator Appointments by ICSID" (video), February 2015
  • Arbitrators on "What Makes a Good Arbitrator" (video), December 2014
  • Meg Kinnear, Appointment to Arbitral Tribunals at ICSID, ABA SIL International Arbitration Committee Newsletter, American Bar Association, Vol. 1, No. 1 (2013)
  • ICSID Review—Foreign Investment Law Journal, Vol. 25, No. 2 – Special Focus Issue on Appointing Arbitrators (2010):
    • Jan Paulsson, Moral Hazard in International Dispute Resolution, pp. 339-355
    • Joseph M. Matthews, Difficult Transitions Do Not Always Require Major Adjustment - It’s Not Time to Abandon Party-Nominated Arbitrators in Investment Arbitration, pp. 356-366
    • David Branson, Sympathetic Party-Appointed Arbitrators: Sophisticated Strangers and Governments Demand Them, pp. 367-393
  • Christoph H. Schreuer, Loretta Malintoppi, August Reinisch & Anthony Sinclair, Article 14 – Qualities of Panel Members, The ICSID Convention: A Commentary (2nd ed.), Cambridge University Press, p. 48 (2009)
  • Christoph H. Schreuer, Loretta Malintoppi, August Reinisch & Anthony Sinclair, Article 40 – Qualities of Arbitrators, The ICSID Convention: A Commentary (2nd ed.), Cambridge University Press, p. 507 (2009)
  • Ibrahim F.I. Shihata, The Experience of ICSID in the Selection of Arbitrators, News from ICSID, Vol. 6, No. 1, p. 4 (1989)
  • Catherine Rogers, Ethics in International Arbitration, Oxford University Press (2014)
  • Chiara Giorgetti, The Arbitral Tribunal: Selection and Replacement of Arbitrators, Litigating International Investment Disputes: A Practitioner’s Guide (Chiara Giorgetti ed.), Brill / Nijhoff, pp. 145-172 (2014)