Investor Presentaiton
92
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
[...]
3. If the disputing parties do not agree on the
remuneration of the arbitrators before the constitution of the
Tribunal, the prevailing ICSID rate for arbitrators shall
apply.
4. If a Tribunal, other than a Tribunal established under
Article 9.27 ["Consolidation"], has not been constituted
within 90 days from the date that a claim is submitted to
arbitration, the Secretary-General of ICSID, on the request of
either disputing party, shall appoint the arbitrator or
arbitrators not yet appointed. The Secretary-General shall
make the appointment in its discretion and, to the extent
practicable, do so in consultation with the disputing parties.
The Secretary-General may not appoint as presiding
arbitrator a national of either Party."
Paragraph three of the above article is a default provision
regarding the arbitrators' remuneration. Arbitrator fees can be very
high. The ICSID Rules cap the arbitrators' remuneration rate
(currently at US$3,000 per day per arbitrator) absent the permission
of the Secretary-General to increase the rate. By contrast, the
UNCITRAL Rules do not, leaving the issue of remuneration for
negotiations between the parties and the arbitrators. Setting a fee
schedule that will apply in the absence of party agreement helps
avoid prolonged negotiations with the disputing parties or with the
arbitrators themselves.
2. Arbitrator qualifications
Most treaties do not specify the desired characteristics of an
arbitrator. Article 14(1) of the ICSID Convention requires that
arbitrators be "persons of high moral character and recognized
competence in the fields of law, commerce, industry or finance, who
may be relied upon to exercise independent judgment".
UNCTAD Series on International Investment Agreements IIView entire presentation