Selection and Appointment of Tribunal Members – Additional Facility Arbitration (2022 Rules)
Once the number of arbitrators and the method of their appointment have been determined, the arbitrators may be appointed. If the parties are unable to appoint all members of the Tribunal pursuant to the established method of appointment, the Additional Facility’s default mechanism may apply.
The Additional Facility Arbitration Rules provide certain requirements regarding the qualifications of appointees to Tribunals. Similarly, and unless otherwise agreed by the parties, the Additional Facility Arbitration Rules provide certain requirements regarding the nationality of appointees. The parties are otherwise free to choose whomever they wish.
Requirements for Appointees
While the parties can agree otherwise (including in a treaty or a contract):
- a majority of arbitrators on a Tribunal must be nationals of States other than the State party to the dispute, any constituent State of the REIO party to the dispute and the State whose national is a party to the dispute (Additional Facility Arbitration Rule 21(2)(a))
- a party may not appoint an arbitrator who is a national of the State party to the dispute, any constituent State of the REIO party to the dispute or the State whose national is a party to the dispute (Additional Facility Arbitration Rule 21(2)(b))
- arbitrators appointed by the Secretary-General cannot be nationals of the State party to the dispute, a constituent State of the REIO party to the dispute or the State whose national is a party to the dispute (Additional Facility Arbitration Rule 21(2)(c)).
In practice, this means that, unless the parties agree otherwise:
- A sole arbitrator may not have the same nationality as either party
- If each party proposes to appoint 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.
All Additional Facility arbitrators must be persons:
- of high moral character
- with recognized competence in the fields of law, commerce, industry or finance
- who are impartial and independent (Additional Facility Arbitration Rule 22)
- who were not previously involved in the resolution of the dispute as a conciliator, judge, mediator or in a similar capacity (Additional Facility Arbitration Rule 21(2)(d))
Additional Considerations for Selecting Arbitrators
In addition to the requirements established by the Additional Facility Arbitration Rules, there are practical considerations that parties should consider when selecting an arbitrator. These include:
- knowledge of the relevant law
- absence of conflict of interest
- experience as an arbitrator
- language proficiency
- availability of the arbitrator
- ability to meet case timelines
- cohesiveness of the Tribunal
- other areas of expertise
Appointing an Arbitrator
The parties should provide ICSID with the full name, nationality and contact information (i.e., mailing address, telephone and fax numbers, email) for each arbitrator (Additional Facility Arbitration Rule 27(1)).
ICSID also requests the curriculum vitae of the appointee.
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 accepts the appointment, he/she must provide a signed declaration in the form published by ICSID, including any disclosures (Additional Facility Arbitration Rule 27(3)(b)).
If an arbitrator declines the appointment, or fails to accept the appointment and provide the signed declaration within 20 days, ICSID will invite the appointing party to nominate another arbitrator in accordance with the method followed for the previous appointment (Additional Facility Arbitration Rule 27(5)).
Replacement of Arbitrators Prior to Constitution of the Tribunal
Before the constitution of the Tribunal, an arbitrator may withdraw his/her acceptance, a party may replace an arbitrator whom it appointed, or the parties may agree to replace any arbitrator (Additional Facility Arbitration Rule 28).
If an arbitrator nomination is withdrawn, ICSID will invite the party that appointed that person to nominate another arbitrator in accordance with the method followed for his/her appointment.
Assistance of the Secretary-General with Appointment
The parties may request the assistance of the Secretary-General with an appointment at any time. This could concern the appointment of a Sole Arbitrator, the President of the Tribunal, or all members of a Tribunal.
The Secretary-General’s involvement may be in accordance with the parties’ agreement on the method of constituting the Tribunal (e.g., the parties agree that the President is to be appointed by the Secretary-General), or on an ad hoc basis when they are unable to agree. For example, if the parties are to jointly appoint the President of the Tribunal but are unable to agree on the President, they can request the Secretary-General’s assistance before resorting to the default procedure in Additional Facility Arbitration Rule 26.
The parties may stipulate any considerations they would like the Secretary-General to take into account in the appointment process.
If the parties do not indicate any particular method of appointment, the Secretary-General may propose a procedure such as a ballot or a list procedure.
A ballot proceeds as follows:
- ICSID provides the parties with a ballot form containing the names of several candidates
- Each party is given a date for return of its completed ballot form, indicating the candidates it accepts or rejects
- A party is not required to share its completed 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 list procedure proceeds as follows:
- ICSID provides the parties with a list of several 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.
Any appointment pursuant to a procedure proposed by the Secretary-General is considered an appointment by agreement of the parties under the established method for constituting the Tribunal
If the procedure does not lead to an appointment, the parties can request additional assistance from the Secretary-General under the default mechanism in Additional Facility Arbitration Rule 26
Default Mechanism for Appointing an Arbitrator
If the parties are unable to appoint all members of the Tribunal within 90 days after registration of the Request for arbitration, either party may ask that the Secretary-General appoint the arbitrator(s) not yet appointed (Additional Facility Arbitration Rule 26). Alternatively, the parties may agree to a different period or procedure.
If the request concerns both a co-arbitrator and the President of the Tribunal, the Secretary-General will first appoint the co-arbitrator (Additional Facility Arbitration Rule 26(2)).
Before the candidate is appointed, the Secretary-General consults with the parties about the candidate to be nominated, giving them an opportunity to raise any circumstance showing that the person lacks the required qualities under Additional Facility Arbitration Rule 22.
Until the process is completed, the parties may appoint missing arbitrators under the established method of constitution or by agreement.
The Secretary-General will use best efforts to complete the appointment process within 30 days of the request for appointment (Additional Facility Arbitration Rule 26(3)).