Originally from: Handbook on International Commercial Arbitration - Hardcover Handbook on International Commercial Arbitration - Electronic
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Terms of Reference and Lists of Issues
Peter Ashford
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.
Full Table of Contents from "Handbook on International Commercial Arbitration"
About the Author
Preface
Chapter 1 What Claims May Be Arbitrated
Chapter 2 Separability
Chapter 3 The Proper Law
Chapter 4 Conditions Precedent to a Reference
Chapter 5 Getting Started
Chapter 6 Parties and International Commercial Arbitration
Chapter 7 Arbitral Independence
Chapter 8 Duties and Obligations of the Arbitral Tribunal
Chapter 9 Preliminary Meeting
Chapter 10 Terms of Reference and Lists of Issues
Chapter 11 Secretaries
Chapter 12 Representation
Chapter 13 Written Pleadings
Chapter 14 Set-Off
Chapter 15 Interim Measures
Chapter 16 Procedural Agreements and Party Autonomy
Chapter 17 Giving Discovery
Chapter 18 Disputes on the Extent of Discovery Given
Chapter 19 Confidentiality as a Ground for Resisting Disclosure
Chapter 20 Confidentiality and Subsequent Use
Chapter 21 Enforcement of Discovery by Assistance from National Courts
Chapter 22 Data Protection and Discovery
Chapter 23 Foreign Languages and Translations
Chapter 24 Documents for Impeachment
Chapter 25 Continuing Duty of Discovery
Chapter 26 Electronic Documents
Chapter 27 Legal Professional Privilege: Who and What Is Covered?
Chapter 28 Non-Party Discovery
Chapter 29 Bundles
Chapter 30 Witness Statements
Chapter 31 Expenses of Witnesses
Chapter 32 Expert Evidence
Chapter 33 Evidentiary Hearings and Advocacy in International Commercial Arbitration
Chapter 34 Precedent
Chapter 35 Damages
Chapter 36 Costs in International Arbitration
Chapter 37 Costs Capping
Chapter 38 Security for Costs
Chapter 39 Costs Orders
Chapter 40 Discontinuance and Costs
Chapter 41 Costs of Applications
Chapter 42 Costs of the Reference
Chapter 43 Costs: Assessing the Amounts
Chapter 44 The Award
Appendices 1-40
Appendix 1 Laws of the Arbitration
Appendix 2 Sample Formal Parts of Award on Non-Compliance with Condition Precedent
Appendix 3 Sample Request for Arbitration
Appendix 4 Sample Answer to Request
Appendix 5 Sample Joint Letter to Potential Chairman from Counsel to Parties
Appendix 6 Sample Agenda for First Meeting
Appendix 7 Sample Terms of Reference
Appendix 8 Sample List of Issues
Appendix 9 Sample Letter for the Appointment of a Secretary
Appendix 10 Sample Order for Limiting Written Pleadings
Appendix 11 Sample Responsive and Amalgamated Defence with Claim
Appendix 12 Sample Letter of Application to Tribunal for Various Orders (Including Discovery)
Appendix 13 Sample Order for Full Discovery
Appendix 14 Sample Order for Reduced Discovery
Appendix 15 Sample Order for Limited Discovery — Only Documents Relied Upon
Appendix 16 Sample Order for Limiting Discovery
Appendix 17 Table Comparing Disclosure under Various Arbitration Models
Appendix 18 Sample Procedural Order for Discovery Disputes
Appendix 19 Sample Order Stating Chairman’s Role in Deciding Discovery Disputes
Appendix 20 Sample Order for Disclosure of Information that May Contain Personal Data
Appendix 21 Sample Order Governing Treatment of Foreign Languages and Translations
Appendix 22 Sample Order Governing Treatment of Electronic Documents
Appendix 23 Sample Order Governing Treatment of Bundles
Appendix 24 Sample Order Permitting Expert Evidence
Appendix 25 Sample Declaration by Expert
Appendix 26 Checklist of Key Components of an Award
Appendix 27 Sample Consent Award
Appendix 28 Sample Costs Capping Order
Appendix 29 Types of Costs Orders
Appendix 30 Sample Orders for Security for Costs
Appendix 31 Sample "Sealed Offer"
Appendix 32 UNCITRAL Model Law on International Commercial Arbitration
Appendix 33 ICC Rules of Arbitration
Appendix 34 LCIA Arbitration Rules
Appendix 35 AAA-ICDR Dispute Resolution Procedures Appendix 36 UNCITRAL Arbitration Rules Appendix 37 UNCITRAL Notes on Organizing Arbitral Proceedings
Appendix 38 IBA Rules on the Taking of Evidence in International Commercial Arbitration
Appendix39 IBA Guidelines on Conflicts of Interest in International Arbitration
Appendix40 Contact Information for Various International Arbitral Institutions
Table of Cases
Index
Peter Ashford is a Partner and member of the International Arbitration group at Fox Williams LLP, United Kingdom and a member of the Chartered Institute of Arbitrators. He has been involved in representing parties in arbitration for over 20 years. Mr. Ashford advises on a wide range of commercial disputes with a particular emphasis on substantial commercial contract disputes in the transport, logistics, distribution and agency and energy sectors. He is particularly experienced in complex, high value claims and the ascertaining of loss. He acts for many international clients around the globe. Mr. Ashford received his training in London and qualified in 1986, he joined Cripps Harries Hall LLP in 1987 and became a partner there in 1991. He joined Fox Williams LLP in 2012.
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