Parties should agree on the number of conciliators on a Commission and the method of their appointment. If they cannot agree, ICSID’s default mechanism will apply (Articles 6 and 9 of the ICSID Conciliation (Additional Facility) Rules).
As a first step in the appointment process, the parties should refer to the contract, treaty or law containing the parties’ agreement to refer the dispute to conciliation under the ICSID Additional Facility Rules. This instrument may set forth a prior agreement between the parties on the number of conciliators and/or the method of their appointment.
Absent a prior agreement, the parties are invited by ICSID to agree on the number of conciliators and the method of their appointment when ICSID registers the request for conciliation.
A Commission must always consist of a sole conciliator or any uneven number of conciliators. The parties are otherwise free to adopt any workable method of appointment that suits their needs, including provisions on time limits and special procedures. The parties do not have to appoint conciliators from the ICSID Panel of Conciliators.
The most common agreements for three-member Commissions are:
As part of their agreement on the method for constituting the Commission, the parties may agree to adopt a list procedure concerning proposed candidates. List procedures can be used for a sole conciliator, the President of the Commission or all members of the Commission. Commonly used list procedures include:
If no agreement on the number of conciliators and the method of their appointment is reached within 60 days after registration of the request for conciliation, either party may request the application of the default formula under Articles 6(1) and 9 of the Conciliation (Additional Facility) Rules. The formula provides that:
In cases where the default formula applies, Article 9 of the Conciliation (Additional Facility) Rules sets forth the process by which the parties appoint the members of the Commission: