INTRODUCTION

The drafts leading to what eventually became Art. 39 were the subject of much discussion during the Convention's drafting. The Preliminary Draft sought to exclude nationals or co-nationals of parties from appointment as arbitrators without exception (History, Vol. I, p. 182). The debates on this provision showed opposing views. Some delegates were in agreement with the exclusion of national arbitrators in order to avoid any lack or even semblance of lack of impartiality. Another group thought that arbitrators possessing the nationality or co-nationality of the parties were useful sources of information on the law and position of the parties and would inspire the parties' confidence in the arbitration process (History, Vol. II, pp. 265, 266, 295, 306, 329, 386, 387, 416, 417, 487, 489, 510, 511, 512, 569). The First Draft tightened the provision by also excluding persons who had been designated to the Panel of Arbitrators by either of the two States. After further debate (at pp. 663, 789), several votes were taken. These showed a majority against the total exclusion of national arbitrators. There was also a majority for the proposition that national arbitrators should never constitute a majority on a tribunal. Another vote approved an exception where the parties were in agreement on the person of each arbitrator (at p. 789).