Selection and Appointment of Conciliators - ICSID Additional Facility Conciliation (2022 Rules)
Once the number of conciliators and the method of their appointment have been determined, the conciliators may be appointed. If the parties are unable to appoint all members of the Commission pursuant to the established method of appointment, the ICSID default mechanism may apply.
Parties are not required to select conciliators from the ICSID Panel of Conciliators, although they are welcome to do so.
The Additional Facility Conciliation Rules provide certain requirements regarding the qualifications of appointees to ICSID conciliation Commissions, but the parties are otherwise free to choose whomever they wish.
Requirements for Appointees
All ICSID conciliators must be persons:
- of high moral character
- of recognized competence in the fields of law, commerce, industry or finance
- who are impartial and independent (Additional Facility Conciliation Rule 20).
There is no nationality requirement for conciliators in the ICSID Additional Facility Conciliation Rules.
Additional Considerations for Selecting Conciliators
In addition to the requirements established by the Additional Facility Conciliation Rules, there are practical considerations that parties should consider when selecting a conciliator. These include:
- Absence of conflict of interest
- Experience as a conciliator or mediator or experience in other amicable dispute resolution methods
- Knowledge of the relevant law(s)
- Language proficiency
- Availability of the conciliator
- Ability to meet case timeliness
- Cohesiveness of the Commission
- Other areas of expertise
Appointing a Conciliator
The parties should provide ICSID with the full name, nationality and contact information (i.e., mailing address, telephone and fax numbers, email) for each conciliator (Additional Facility Conciliation Rule 24).
ICSID also requests the curriculum vitae of the appointee.
Once a conciliator 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 of the nomination.
If a conciliator accepts the appointment, he/she must provide a signed declaration in the form published by ICSID, including any disclosures (Additional Facility Conciliation Rule 24(3)(b)).
If a conciliator 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 conciliator in accordance with the method followed for the previous appointment (Additional Facility Conciliation Rule 24(5)).
Replacement of Conciliators Prior to Constitution of the Commission
Before the constitution of the Commission, a conciliator may withdraw his/her acceptance, a party may replace a conciliator whom it appointed, or the parties may agree to replace any conciliator (Additional Facility Conciliation Rule 25).
If a conciliator nomination is withdrawn, ICSID will invite the party that appointed that conciliator to nominate another conciliator in accordance with the method followed for his/her appointment.
Assistance of the Secretary-General with Appointment
The parties may ask the Secretary-General to assist with an appointment at any time. This could concern the appointment of a Sole Conciliator, the President of the Commission, or all members of a Commission (Additional Facility Conciliation Rule 22).
The Secretary-General’s involvement may be further to the parties’ agreement on the method of constituting the Commission (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 Commission 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 Conciliation Rule 23.
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 (e.g., 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 Commission.
If the procedure does not lead to an appointment, the parties can request additional assistance from the Secretary-General under Additional Facility Conciliation Rule 22 or proceed under the default mechanism in Additional Facility Conciliation Rule 23.
Default Mechanism for Appointing a Conciliator
If the parties are unable to appoint all members of the Commission within 90 days after the registration of the Request for conciliation, either party may ask that the Secretary-General appoint the conciliator(s) not yet appointed (Additional Facility Conciliation Rule 23(1)). Alternatively, the parties may agree to a different period or procedure.
If the request under Additional Facility Conciliation Rule 23(1) concerns both a co-conciliator and the President of the Commission, the Secretary-General will first appoint the co-conciliator (Additional Facility Conciliation Rule 23 (2)).
Before the candidate is appointed, the Secretary-General will consult 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 Conciliation Rule 20.
Until the process is completed, the parties may appoint missing conciliators 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 Conciliation Rule 23(3)).