IV. METHOD OF CONSTITUTING THE TRIBUNAL

Article 37(2)(a) of the Convention provides that an Arbitral Tribunal "shall consist of a sole arbitrator or any uneven number of arbitrators"; under Article 39 of the Convention, the majority of the arbitrators must be nationals of States other than the host and the home State of the investor, unless each individual arbitrator is appointed by agreement of the parties; and according to Article 40(2) of the Convention arbitrators appointed from outside the Panel of Arbitrators of the Centre must possess the qualities required for those serving on that Panel."¹¹

Except for the above requirements, the parties are free to constitute their Tribunal in any way they wish. If they have not reached an agreement thereon by the time the request for arbitration has been registered, Arbitration Rule 2 provides a procedure for agreeing on how to constitute a Tribunal; however, if the parties are unable to reach an agreement, then either may, at the expiration of the 60-day period provided for in Arbitration Rule 2(3), invoke the automatic formula provided for in Article 37(2)(b) of the Convention. ¹² If the parties can agree in advance on the method of constituting their Tribunal, it would seem best to record this in the consent agreement by means of a clause such as the following.

11 - In addition to the Panel of Arbitrators, the Centre maintains a Panel of Conciliators. Each Panel consists of up to four persons designated by each Contracting State and up to ten persons designated by the Chairman of the Administrative Council of ICSID. The designees, who all serve for renewable periods of six years, are listed in Doc. ICSID/10. The qualities that they must possess are set forth in Article 14(1) of the Convention which provides that "[p]ersons designated to serve on the Panels shall 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. Competence in the field of law shall be of particular importance in the case of persons on the Panel of Arbitrators."

12 - Under the formula in Article 37(2)(b) of the Convention the Tribunal will consist of three arbitrators, one appointed by each party and a third, presiding, arbitrator appointed by agreement of the parties. Should the Tribunal remain to be constituted at the expiration of the 90-day period provided for in Article 38 of the Convention and Arbitration Rule 4, or such other period as the parties may agree, then either party may request the Chairman of the Administrative Council of ICSID to appoint the arbitrator or arbitrators not yet appointed. Under Arbitration Rule 4, the Chairman must comply with such requests within 30 days. If, as possible under clause 9 above, a neutral official other than the Chairman may be called upon to appoint arbitrators, it is advisable to obtain the official's consent in advance (compare infra sec. XII).