INTRODUCTION

Art. 37 is the first of four articles in Section 2 of the Convention's Chapter IV on “Arbitration”. Section 2 bears the title “Constitution of the Tribunal”. Art. 37 deals with some basic principles for the constitution of a tribunal and with the appointment of arbitrators by the parties. Art. 38 deals with the appointment of arbitrators in default of the parties. Art. 39 deals with the nationality requirements for arbitrators. Art. 40 deals with the appointment of arbitrators who are or are not designated to the Panel of Arbitrators under Arts. 12–16. It also deals with the general qualities of arbitrators.

The constitution of tribunals is governed by two principles. One is the principle of freedom of choice by the parties. The other is the principle of non-frustration. The parties are free to shape the size, composition and method of appointment by agreement. There is only a limited number of mandatory rules in the Convention in this respect. These are:

• Art. 37(2)(a) prescribing that the tribunal must consist of a sole arbitrator or an uneven number of arbitrators;

• Art. 39 prescribing that the majority of arbitrators must not be nationals or conationals of the parties. This rule does not apply if each arbitrator is appointed by agreement of the parties;

• Art. 40(2) providing that arbitrators appointed from outside the Panel of Arbitrators must possess the qualities required of persons on the Panel.