Disqualification and Removal of Conciliators - ICSID Additional Facility Conciliation (2022 Rules)
Either party may propose the disqualification of a conciliator once the Commission has been constituted (Additional Facility Conciliation Rule 27). A party may also propose that a conciliator be removed for incapacity or failure to perform the required duties (Additional Facility Conciliation Rule 29).
A proposal to disqualify (or otherwise remove) a conciliator must be made within 21 days after the later of the constitution of the Commission or the date on which the filing party first knew or should have known of the facts on which the proposal is based (Additional Facility Conciliation Rule 27(2)(a)). Failure to object promptly will result in the rejection of the proposal.
Grounds for Disqualification
A conciliator may be disqualified on account of the existence of any circumstances that give rise to justifiable doubts as to the qualities of the conciliator required by Additional Facility Conciliation Rule 20.
Additional Facility Conciliation Rule 20 specifies the qualities required of all conciliators. They must possess high moral character, recognized competence in the fields of law, commerce, industry or finance, and be impartial and independent.
The applicable legal standard for disqualification is an objective one, based on how a reasonable third party would evaluate the evidence. The subjective belief of the party proposing the disqualification does not satisfy the legal standard under the ICSID Additional Facility Conciliation Rules. While the IBA Guidelines on Conflicts of Interest are not binding, they may serve as useful references in a challenge under the ICSID Additional Facility Conciliation Rules.
Other Grounds for the Removal of a Conciliator
A conciliator may also be removed for incapacity of failure to perform the duties required of an arbitrator (Additional Facility Conciliation Rule 29).
The procedure applicable to a disqualification proposal will also apply to the removal of a conciliator that becomes incapacitated or fails to perform the required duties (Additional Facility Conciliation Rules 27 and 29).
The procedure starts with the submission by a party of a full proposal regarding one or more conciliators. The filing of a proposal suspends the proceeding, except to the extent that the parties agree to continue it (Additional Facility Conciliation Rule 27(4)).
The filing party must submit the proposal within 21 days after the later of the constitution of the Commission or the date on which the filing party first knew of should have known of the facts on which the proposal is based. The other party must file a response within 21 days of receipt of the proposal. Any statement by the conciliator to whom the proposal relates must be filed within five days after the earlier of receipt of the response or expiry of its time limit. The parties may file final comments after the earlier of receipt of the conciliator’s statement or expiry of its time limit (Additional Facility Conciliation Rule 27(2)).
The decision on the proposal is made by the Secretary-General (Additional Facility Conciliation Rule 28(1). Additional Facility Conciliation Rule 28(2) contains a best-efforts obligation to issue a decision within 30 days.
Resumption of the Proceeding
The decision will either reject or uphold the proposal. If the proposal is rejected, the conciliation will resume immediately with the same Commission.
A proposal that is upheld results in a vacancy on the Commission. A vacancy is filled using the same method by which the conciliator had been appointed, except that the appointment will be made by the Secretary-General when the vacancy has not been filled 45 days after its notification (Additional Facility Conciliation Rule 31(3)).
As soon as the vacancy has been filled, the proceeding will resume (Additional Facility Conciliation Rule 31(4)).