Selection of Arbitrators
The ICSID and UNCITRAL rules encourage the parties to agree on the selection of arbitrators, and provide a method for the selection of arbitrators if the parties cannot agree. This list of arbitrators are composed of persons appointed by the various countries who are members of the Convention. If the parties to the arbitration do not want the President of the Arbitration Tribunal to be from this list, they must come up with a way to agree on the President. Typically the parties agree that each side chooses their arbitrator, and those two arbitrators then choose a President. It is accepted in international arbitration for me to talk to an arbitrator before we choose him or her. The amount of information gathering we have to do then analyze that information to determine a proper fit is very important. We could talk to 20 arbitrators before we choose one. Therefore we have selected a firm to help sift through the mounds of information on arbitrators for appointment. Below is the agreement between the Government Of Canada and The Howard Group for the selection process of the Arbitral Tribunal.
Canada also notes that you have agreed to the procedure for the selection of the Arbitral Tribunal outlined in Article 1123 of NAFTA. In order to ensure the efficiency of the selection process, Canada suggests that the parties jointly agree to the following:
• Claimants will appoint their arbitrator;
• Canada will appoint its arbitrator no later than four weeks after the
Claimants appoint their arbitrator, or if that day falls on a weekend or a
holiday, the next business day thereafter;
• The parties will each submit, simultaneously, three candidates for the
presiding arbitrator at 5pm on the day four weeks after the appointment
by Canada of its arbitrator, or if that day falls on a weekend or a
holiday, the next business day thereafter;
• Within two weeks after the exchange of the lists of candidates for the
presiding arbitrator, the parties will hold a conference call to discuss the
matter and seek to reach an agreement. If an agreement cannot be
reached, the parties will discuss the advisability of an additional
exchange of candidates for presiding arbitrator;
• If the parties are unable to agree on a presiding arbitrator in accordance
with the above process, either party may, at the appropriate time,
request that the Secretary General of ICSID appoint the presiding arbitrator pursuant to NAFTA Article 1124.
