Selection and Appointment of Tribunal Members - Additional Facility Arbitration (2006 Rules)

Once the number of arbitrators and the method of their appointment have been determined, the arbitrator(s) may be appointed. If the parties are unable to appoint all members of the Tribunal pursuant to the established method of appointment, the ICSID default mechanism may apply.

Parties are not required to select arbitrators from the ICSID Panel of Arbitrators, although they are welcome to do so.

The Arbitration (Additional Facility) Rules set forth certain requirements regarding the nationality and qualifications of appointees to Tribunals, but the parties are otherwise free to choose whomever they wish.

Requirements for Appointees

Nationality Requirement

A majority of arbitrators on a Tribunal must be nationals of States other than the State party to the dispute and the State whose national is a party to the dispute (Article 7 of the Arbitration (Additional Facility) Rules).

The nationality rule does not apply if the sole arbitrator or each individual member of the Tribunal is appointed by agreement of the parties.

In practice, this means that:

  • A Sole Arbitrator may not have the same nationality as either party unless both parties agree.
  • Where a Tribunal consists of three members, an arbitrator cannot have the same nationality as either party unless both parties agree to that appointment.
  • If each party has appointed 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.

Arbitrator Qualifications

All ICSID arbitrators must be persons:

  • of high moral character;
  • with recognized competence in the fields of law, commerce, industry or finance; and
  • who may be relied upon to exercise independent judgment (Article 8 of the Arbitration (Additional Facility) Rules).

Additional Considerations for Selecting Arbitrators

In addition to the requirements established by the Rules, there are several practical considerations that parties should consider when selecting an arbitrator. Although these may vary depending on the specific characteristics and demands of each case, the following factors are generally among the most important:

  • Knowledge of the relevant law(s)
  • Absence of conflict of interest
  • Experience as an arbitrator
  • Language proficiency
  • Availability/manageability of current caseload
  • Timeliness
  • Cohesiveness of the Tribunal
  • Other areas of expertise

Appointing an Arbitrator

The parties should provide ICSID with the following information in respect of an arbitrator appointment:

  • complete name;
  • nationality(ies);
  • contact information (i.e., mailing address, telephone and fax numbers, e-mail); and
  • a current curriculum vitae.

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 refuses or fails to accept the appointment within 15 days, ICSID will invite the appointing party to nominate another arbitrator.

Default Mechanism for Appointing an Arbitrator

If the parties are unable to appoint all members of the Tribunal within 90 days of the registration of the request for arbitration, either party may request that the Chairman of the ICSID Administrative Council appoint the arbitrator(s) not yet appointed (Article 9 of the Arbitration (Additional Facility) Rules).

When a party makes such a request in respect of the Sole Arbitrator or President of the Tribunal, ICSID first conducts a ballot procedure:

  • ICSID provides the parties with a ballot form containing the names of several candidates.
  • Each party is given a short time limit to return its completed ballot form, indicating the candidates it accepts or rejects.
  • A party is not required to share its 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 successful ballot is considered an appointment by agreement of the parties under the established method of constituting the Tribunal.

If there is no agreement by the parties, ICSID names an arbitrator. Before the person is appointed, the parties are given the opportunity to raise any circumstance showing that the person lacks the required qualities under the ICSID Convention (see Article 8 of the Arbitration (Additional Facility) Rules).

Until the process is completed, the parties may appoint missing arbitrators under the established method of constitution or by agreement.

The Centre endeavors to complete the appointment process within 30 days of the request for appointment (Article 10(3) of the Arbitration (Additional Facility) Rules).