Other Procedures - ICSID Convention Conciliation
Disqualification of Conciliators
Either party may propose the disqualification of a conciliator once the Commission has been constituted (Article 57 of the ICSID Convention).
A proposal to disqualify a conciliator must be made promptly and, in any event, before the Commission first recommends terms of settlement of the dispute to the parties or when the proceeding is closed, whichever occurs earlier (Conciliation Rule 9). Failure to object promptly will result in the rejection of the proposal.
Grounds for Disqualification
A conciliator may be disqualified on the ground of incapacity or if there is a manifest lack of the qualities required by Article 14(1) of the ICSID Convention (Articles 56 and 57 of the ICSID Convention, Conciliation Rule 8 and 9).
Article 14(1) of the ICSID Convention specifies the qualities required of all Panel members. They must possess high moral character, recognized competence in the fields of law, commerce, industry or finance, and reliability to exercise independent judgment. These qualities must also be met by candidates appointed from outside the Panel.
Proposal to Disqualify
The challenge procedure starts with the submission by a party of a proposal to disqualify one or more members of the Commission. The proposal is filed with the ICSID Secretary-General. A proposal to disqualify suspends the proceeding. Once received, the proposal is transmitted to the Commission, or the Chairman of the ICSID Administrative Council if the challenge is to a sole conciliator or the majority of the Commission. The proposal is also transmitted to the other party, and a schedule for submissions is established. The schedule will provide an opportunity for the challenged conciliator to furnish explanations and for the other party to make observations on the proposal.
The decision on the proposal is usually made by the other members of the Commission (Article 58 of the ICSID Convention, Conciliation Rule 9(4)). However, the decision will be made by the Chairman of the ICSID Administrative Council when the other members are equally divided or where the proposal refers to a sole conciliator or to a majority of the Commission.
Resumption of the Proceeding
The decision will either reject or uphold the proposal for disqualification. If the proposal is rejected, the proceeding will resume immediately with the same Commission.
A proposal that is upheld results in the disqualification of the challenged conciliator and, consequently, a vacancy on the Commission. A vacancy resulting from the disqualification of a conciliator is filled using the same method by which the disqualified conciliator had been appointed (ICSID Conciliation Rule 11(1)). If no new appointment is made and accepted within 45 days of the notification of the vacancy, the appointment will be made by the Chairman of the ICSID Administrative Council at the request of a party (Conciliation Rule 11(2)). As soon as the vacancy has been filled, the proceeding will resume from the point when the proposal was submitted (Conciliation Rule 12).
Objections to Jurisdiction
The Commission may consider whether a dispute is within its competence, on its own initiative or on the objection by a party (Article 32 of the ICSID Convention, Conciliation Rule 29). A party must raise these objections as early as possible and no later than the earlier of the first written statement or hearing.
When objections to jurisdiction are raised, the proceeding is suspended and the parties present their views on the objections (Conciliation Rule 29(3)). The Commission may either deal with the objections as a preliminary question or join them to the merits of the case. If the Commission overrules the objections or joins them to the merits, it resumes the conciliation immediately (Conciliation Rule 29(4)).
If it upholds the objections, the Commission closes the proceeding and issues a Report declining jurisdiction, in which it states its reasons (Conciliation Rule 29(5)).