Our interview series on the Practical Law Arbitration blog continues with part 2 of my interview with Meg Kinnear, who since 2008, has been the Secretary General of the International Centre for Settlement of Investment Disputes (ICSID) at the World Bank.
In part 1 of the interview, Meg talked about her background and role at ICSID. In part 2, she focuses on elements of ICSID procedure and in part 3 considers changes to ICSID arbitration procedure. Finally, in part 4 Meg considers current topical issues in ICSID arbitration, such as the EU proposal for reformed ISDS provisions, transparency rules and third party funding.
ICSID arbitration procedure
What percentage of cases are bifurcated?
I don’t have specific numbers on that, but my sense is that somewhere between 40-60% of cases are bifurcated in some fashion.
Can you tell us how you go about nominating an arbitrator?
About 85% of all tribunal members are appointed by the parties and not by ICSID. ICSID is required to appoint an arbitrator where a party fails to nominate their party-named appointee in the requisite time or the parties cannot agree on the President of the Panel. It also appoints all members of annulment committees.
When required to nominate the president of the tribunal, ICSID usually proposes a ballot with about five possible candidates for the parties to consider; this is an effort to bring the parties to consensus on the presiding arbitrator. If they agree on a ballot candidate, that person is named. In those cases where the parties cannot agree and call for ICSID to appoint the presiding arbitrator under the default mechanism envisaged by the Convention, ICSID is required to select from its Panel of Arbitrators consisting of four arbitrators nominated by each member state.
In all cases where ICSID appoints, it provides the parties with the proposed candidate’s name, their CV and an opportunity to comment on the potential candidate. The process is described in detail on our website.
More generally, before proposing a candidate ICSID checks for potential conflicts, inquires whether the arbitrator has the time to dedicate to the case, and considers a number of other criteria including expertise, linguistic ability, and nationality.
How can a centre such as ICSID increase diversity amongst arbitrators and ensure that the pool of ICSID arbitrators is widened?
It is clear to me that the pool of arbitrators in investment arbitration is diversifying from a regional, gender and age perspective, but this is an evolutionary process. ICSID plays an important role in this evolution because we meet potential arbitrators from all around the world, so we have a good vantage point on potential new candidates. When ICSID is asked to appoint, diversity is a consideration and we try to put forward a broad range of capable candidates. At the same time, given that ICSID does not appoint the majority of arbitrators, counsel and their clients still play the primary role in increasing diversity. One of the most important ways ICSID can support counsel in this endeavour is to ensure they are aware of potential new candidates who have the expertise to take on cases. As a result, we try very hard to meet potential arbitrators from around the world and to ensure they participate in conferences, write in our journals and otherwise are brought to the attention of counsel.
What advice would you give to someone who wants to promote themselves as an investment treaty arbitrator?
It seems that the hardest step for any new arbitrator is getting the first few appointments. The main aspect that we look at is expertise in the field: investment arbitration is a mix of public international law, investment law and arbitration expertise, and the more a candidate can demonstrate they have mastery of all of these areas, the more likely they are to obtain appointments. Once appointed, the new arbitrator should be diligent. For example, being prepared for the case, being engaged in the case, knowing the record and the law, and ensuring the procedure is expeditious and awards are rendered in a timely fashion will all help ensure that an arbitrator is considered for future appointments by counsel.
How are tribunal secretaries picked and what are the parameters of their role?
ICSID tribunal secretaries are assigned to each case. They are full-time ICSID staff who have a law degree(s) and speak one or more of the Centre’s official languages. They are selected for the case by the Secretary-General after consultation with team leads. Their selection is based on a combination of factors including availability, language, and absence of conflict. Their role is to assist both parties and the tribunal and generally to ensure the case proceeds smoothly and expeditiously. The ICSID tribunal secretary attends hearings and will draft procedural rulings on the instructions of the tribunal. They usually attend deliberations at the invitation of the tribunal and will ensure a draft award is formatted and checked. However, ICSID tribunal secretaries are well aware that they are not a fourth arbitrator and we are careful to avoid overstepping our role. My experience has been that ICSID tribunal secretaries are invaluable to the process and that arbitrators and counsel find their services one of the main advantages of ICSID arbitration.
Some tribunals also ask for an outside tribunal assistant in addition to the ICSID secretary, although this is not necessary and depends on the specific case and the wishes of the tribunal members and parties. Parties must approve the retention of an outside assistant, receive their CV, and agree on the role to be played by the tribunal assistant. An outside tribunal assistant at ICSID files their bills separately and files the same independence and impartiality declaration as does a tribunal member.
How useful are amicus curiae briefs? Have many states taken advantage of them? Given that they can add to the duration of the proceedings and the costs considerably can they ever really be justified?
There have been several amici briefs filed in ICSID cases and these are listed on our website. My impression is that they can be useful to the tribunal in the right case and hence it is important to consider the criteria in the rules for admission of amicus briefs. Certainly amicus participation can increase the costs of the proceeding, but tribunals are generally aware of the need to manage amicus participation so as to ensure it is as cost-effective as possible. In fact, the impact of the amicus brief on the parties is one of the elements that tribunals must take into account under the ICSID rules when deciding on their admissibility.