Number of Arbitrators and Method of Appointment – Additional Facility Arbitration (2022 Rules)
Parties should agree on the number of arbitrators on a Tribunal and the method of their appointment. If they cannot agree, the Additional Facility’s default mechanism will apply (Additional Facility Arbitration Rule 24(2)).
The method of appointment must be established before the Secretary-General can act on an appointment made by a party.
As a first step in the appointment process, the parties should refer to the contract, treaty or law containing the consent to arbitration under the Additional Facility. This instrument may include a prior agreement between the parties on the number of arbitrators and/or the method of their appointment.
Absent a prior agreement, ICSID invites the parties to agree on the number of arbitrators and the method of their appointment when ICSID registers the Request for arbitration.
A Tribunal must always consist of a sole arbitrator or any uneven number of arbitrators. 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 most common agreements for three-member Tribunals are:
- Each party appoints one co-arbitrator, and the parties agree on the third arbitrator, the President of the Tribunal. If the parties fail to agree, the Secretary-General of ICSID appoints the President.
- Each party appoints one co-arbitrator, and the co-arbitrators agree on the third arbitrator, the President of the Tribunal. If the co-arbitrators fail to agree, the Secretary-General of ICSID appoints the President.
Parties may agree to use a list procedure to constitute the Tribunal. List procedures can be used to appoint a sole arbitrator, the President of the Tribunal or all members of the Tribunal. Commonly used list procedures include:
- The parties exchange a list of candidates; each party informs the other party of the candidate(s) whom it accepts or rejects.
- The parties request that ICSID provide them with a list of candidates. Each party can strike a certain number of candidates and rank the remaining candidates. The candidate with the best ranking is appointed or, if two or more candidates have the same ranking, ICSID selects one of them.
- The parties and ICSID nominate candidates for ranking, and the parties are not informed which candidates were nominated by ICSID or the other party.
ICSID supports all efforts by parties to agree on the method of appointment and will follow the agreed method and facilitate the process to the fullest extent possible.
If the parties do not advise the Secretary-General of an agreement regarding the method to constitute the Tribunal within 45 days after the date of registration, the Tribunal is constituted in accordance with the default mechanism in Additional Facility Arbitration Rule 24(2).
The default formula contained in Additional Facility Arbitration Rule 24(2) provides that:
- The Tribunal consists of three arbitrators
- Each party appoints one co-arbitrator, and
- The parties jointly agree on the third arbitrator, the President of the Tribunal.