INTRODUCTION

Article 40(1) deals with appointments from the Panel of Arbitrators kept by the Centre in accordance with Articles 12–16. The Chairman, in making appointments under Art. 38, is restricted to the Panel of Arbitrators. The parties, when making appointments, are not. Art. 40(2) deals with the qualities of arbitrators. Curiously, these qualities are only defined in the limited terms of Article 14(1).

The earlier drafts of the Convention had sought to restrict the parties in their choice of arbitrators to persons on the Panel of Arbitrators unless the parties had reached agreement on the tribunal's constitution (History, Vol. I, p. 184; Vol. II, pp. 568, 938). The ensuing discussion showed a preponderance of opinions in favour of giving the parties the freedom to choose persons from outside the Panel (History, Vol. II, pp. 265, 266, 329/30, 346, 416, 417, 487, 510, 527). Eventually, a vote was taken which showed a clear majority in favour of allowing the parties to select arbitrators from outside the Panel at all times with the result that only the Chairman would be obliged to appoint arbitrators from the Panel (at pp. 798, 862, 948). It was emphasized that arbitrators selected from outside the Panel would have to possess the same qualifications (at pp. 265, 387, 798, 862, 948).