One of the more frequent questions posed to ICSID is how to become an ICSID arbitrator. It’s a query the Secretariat welcomes because arbitrators are the linchpin of the decision-making process in ICSID cases.
ICSID has seen steady growth in the pool of professionals serving on ICSID tribunals. And thanks to new entrants, ICSID arbitrators are an increasingly diverse group of individuals.
In fiscal year 2019, 26 individuals were appointed to an ICSID tribunal for the first time—representing 15% of appointments overall. These ‘first timers’ represent 14 different nationalities, and 31% are women (compared to 11% of appointments overall in the same period).
So, the question of how to become an ICSID arbitrator is an important one for the system. And the answer consists of several parts.
First, it’s important to understand the general requirements for an ICSID arbitrator, as laid out in ICSID’s founding treaty, the ICSID Convention.
Second is knowing the process by which individuals are selected to specific cases.
Third is appreciating the role of the ICSID Panel of Arbitrators, from which tribunal members are often selected.
And the fourth is a must to forging any career path: namely, building expertise in the field.
We’ll address each of these in turn.
Article 14(1) describes three qualifications required of ICSID arbitrators: 1) high moral character; 2) recognized competence in the fields of law, commerce, industry or finance; and 3) independent judgment. Similar requirements are found in the ICSID Additional Facility Rules.
Certain expertise may also be important to the case at hand. This could include knowledge of relevant laws, language proficiency, and familiarity with the economic sector that is subject to the dispute. Availability is also an important consideration—the most qualified arbitrator is of little utility if she is not able to devote the necessary time to the case.
In most cases, tribunal members are selected by the parties to the dispute: one arbitrator selected by the claimant, another by the respondent, and a third (presiding) arbitrator by agreement of the parties. However, if a tribunal is not constituted within 90 days of a notice of registration, either party may request that the Chairman of the ICSID Administrative Council appoint the missing arbitrator.
In making his selection, the Chairman will refer to the ICSID Panel of Arbitrators. The ICSID Convention entitles each Member State to designate up to four persons to the Panel of Arbitrators, as well as another four persons to a separate Panel of Conciliators (Articles 12 to 16 of the ICSID Convention). As such, those interested in being designated to the Panels should enquire with ICSID Member States. The Chairman of the ICSID Administrative Council may designate an additional ten persons to each of these Panels.
When the parties make selections to a tribunal, they are not usually obliged to pick from the Panel. But with over 670 designees, it nonetheless provides a highly diverse and qualified pool of experts for parties to consider.
Nationality is also a factor in making appointments: a majority of tribunal members must be nationals of States other than the State party to the dispute and the State whose national is a party to the dispute—unless the parties agree otherwise (Article 39 of the Convention).
Finally, there is the question of expertise.
Successful arbitrators have usually excelled in other fields of practice—whether that be in academia, private legal practice, public service, courts of law, or commercial arbitration. They are also well-versed in ICSID jurisprudence and have reflected on the various legal and policy questions that occupy the professional community.
Demonstrating such knowledge—whether through publications or speaking engagements—is therefore important for would-be ICSID arbitrators. ICSID plays a part by providing young and up-and-coming professionals with platforms to showcase their knowledge and insights, such as through the Centre’s flagship journal, the ICSID Review.
Ultimately, it’s in the interest of all stakeholders in the ICSID system to encourage and support new entrants to the field.