Number of Conciliators and Method of their Appointment – ICSID Additional Facility Conciliation (2022 Rules)
A Conciliation Commission is composed of a Sole Conciliator or any uneven number of conciliators (Additional Facility Conciliation Rule 19).
Parties should agree on the number of conciliators on a Commission and the method of their appointment. If they cannot agree, ICSID’s default mechanism will apply (Additional Facility Conciliation Rules 19(3)). 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 consent to ICSID conciliation. This instrument may include a prior agreement between the parties on the number of conciliators and/or the method of their appointment.
Absent a prior agreement, ICSID invites the parties to agree on the number of conciliators and the method of their appointment when ICSID registers the Request for conciliation (Additional Facility Conciliation Rule 8(c)).
A Commission must always consist of a sole conciliator or any uneven number of conciliators. 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 parties may, but are not required to, appoint conciliators from the ICSID Panel of Conciliators.
Parties may wish to consider appointing a Sole Conciliator. Alternatively, they may select a three-member Commission. Examples of agreements for three-member Commissions are:
- Each party appoints one co-conciliator, and the parties agree on the third conciliator, the President of the Commission. If the parties fail to agree, the Secretary-General of ICSID appoints the President.
- Each party appoints one co-conciliator, and the co-conciliators attempt to agree on the third conciliator, the President of the Commission. If the co-conciliators fail to agree, the Secretary-General of ICSID appoints the President.
Parties may agree to use a list procedure to constitute the Commission. List procedures can be used to appoint a Sole Conciliator, the President of the Commission, or all members of the Commission.
List procedures may 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 these candidates and rank the remaining candidates. The candidate with the best ranking is appointed
- The parties and ICSID nominate candidates for a list, 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 their agreed method.
If no agreement on the number of conciliators or the method of their appointment is reached within 45 days after registration of the request for conciliation, either party may request the application of the default formula under Additional Facility Conciliation Rule 19(3). The formula provides that the Commission consists of a Sole Conciliator, appointed by agreement of the parties.
The parties may agree on a different method of constituting the Commission even after a party has invoked the ICSID default formula.
If the parties are unable to appoint all members of the Commission under the established method, either party may invoke the ICSID default mechanism for appointing the missing conciliator(s) (Additional Facility Conciliation Rule 23(1)).