Once 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 Arbitration (Additional Facility) Rules set forth certain requirements regarding the nationality and qualifications of appointees to Tribunals, but the parties are otherwise free to choose whomever they wish.
Requirements for Appointees
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 7 of the Arbitration (Additional Facility) Rules).
The nationality rule does not apply if the sole arbitrator or each individual member of the Tribunal is appointed by agreement of the parties.
In practice, this means that:
All ICSID arbitrators must be persons:
Additional Considerations for Selecting Arbitrators
In addition to the requirements established by the Rules, there are several practical considerations that parties should consider 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:
Appointing an Arbitrator
The parties should provide ICSID with the following information in respect of an arbitrator appointment:
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 9 of the Arbitration (Additional Facility) Rules).
When a party makes such a request in respect of the Sole Arbitrator or President of the Tribunal, ICSID first conducts a ballot procedure:
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 an arbitrator. 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 (see Article 8 of the Arbitration (Additional Facility) Rules).
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 (Article 10(3) of the Arbitration (Additional Facility) Rules).