Chapter 14 - Terms of Reference and Lists of Issues - Handbook on International Commercial Arbitration - Second Edition
ICC Rules provide that the terms of reference shall be in writing and signed by the tribunal and the parties. Generally, the other institutional rules do not have this stage. In ICC cases, this is done at an early stage on the appointment of the tribunal. Indeed, Article 23 of the ICC Rules makes it clear that it is the first function of the tribunal: “As soon as it has received the file from the Secretariat, the arbitral tribunal shall draw up … a document defining its Terms of Reference.” Formal requirements as to what needs to be included are set out in Article 23 and include a list of issues unless the tribunal considers it inappropriate.
Invariably, the Terms are drawn from the Request for Arbitration and the Answer (and any Reply) although in forming the Terms of Reference, the tribunal may call for a “position summary” from the parties. This should summarise the Request and any Reply (for the Claimant) or Answer (for the Respondent) as the case may be. Alternatively, if the Request, Answer, and Reply are short, it may be possible to incorporate the relevant parts of them wholesale into the terms of reference. It follows from this that the detailed written pleadings will not normally have been produced at this stage.
A sample set of Terms is at Appendix 7.
One of the key requirements is that the Terms of Reference should include “unless the arbitral tribunal considers it inappropriate, a list of issues to be determined.” Unless a list of issues is included, the Terms of Reference are “what” is to be decided whereas a true list of issues whilst being “what” is as much “how” something will be decided.
In contrast to the ICC procedure, where the list of issues is prepared after the Request for arbitration and Answer but before detailed written pleadings, a list of issues prepared after the detailed written pleadings can be a very useful tool but equally can have considerable time and energy devoted to it for perhaps little purpose. No absolute rule can be set—in some instances a List of Issues can be a useful and powerful tool—in others it can be an expensive and time consuming waste of time. It is perhaps noteworthy that the SIAC Rules dropped the requirement for a Memorandum of Issues in the 4th edition of the Rules.