Terms of Reference and Lists of Issues - Chapter 10 - Handbook on International Commercial Arbitration

Author(s):

Peter Ashford

Page Count:

2 pages

Media Description:

PDF from "Handbook on International Commercial Arbitration"

Published:

October, 2009

Jurisdictions:

International

Practice Areas:

Commercial Disputes,

International Institutions and Rules,

ICC

Author Detail:

Peter Ashford is Solicitor of the Supreme Court and a Partner at Cripps Harries Hall LLP and is Head of the firm's Commercial Peter Ashford is a Partner and Head of commercial dispute resolution in the leading United Kingdom Firm of Cripps Harries Hall LLP, Tunbridge Wells, United Kingdom. Mr. Ashford advises on a wide range of commercial disputes with a particular emphasis on substantial commercial contract disputes, especially those involving an international aspect, partnership and LLP disputes, professional issues for solicitors and professional negligence. He is particularly experienced in complex, high value claims and acts for many international clients. He handles disputes in court, arbitration, mediation and disputes without any formal process. Mr. Ashford received his training in London and qualified in 1986. He joined Cripps Harries Hall LLP in 1987 and became a partner in 1991.

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Description:

Originally from Handbook on International Commercial Arbitration

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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 Arbitral Tribunal. Indeed, Article 18 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 18. Invariably, the Terms are drawn from the Request for Arbitration and the Answer (and any Reply) although in forming the Terms of Reference, the Arbitral 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 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. This is the practice under the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules). Rule 17 provides that:

(1) Within 45 days following completion of the submission of the written statements … the Tribunal shall on the basis of the parties’ written statements and in consultation with the parties proceed to draw up a document defining the issues to be determined …(4) The Memorandum of Issues … defines the issues that the Tribunal shall decide in its award.