Arbitration is a living and dynamic institution that constantly evolves. Although its overall structure may remain unchanged, details vary with time, making it necessary to revisit and update periodically, as one would a picture taken in the past.

1. This is the aim of the present article, which updates and supersedes the 1992 Practical Guide on the use of the Terms of Reference 2 and its 1999 sequel 3 written after the current ICC Rules of Arbitration (hereinafter 'the Rules') came into force on 1 January 1998.

2. As will be seen, the basic features of Terms of Reference have not altered, but new issues have arisen, such as the language of the arbitration, confidentiality and VAT.

3. Terms of Reference have always been an essential part of ICC arbitration procedure ever since the Rules were first launched in 1923. It is interesting to note that there is a general tendency amongst international arbitrators, irrespective of the kind of procedure (institutional or ad hoc) they follow, to lay down a framework from the outset, which may be given various names including Terms of Reference as used in ICC proceedings.

4. The purpose of an arbitration clause in a contract is to record the parties' agreement to submit a possible dispute to arbitration. When using the standard ICC arbitration clause, it is advisable to specify the place and language of the arbitration and the applicable rules of law. We are inclined to think it better not to specify the number of arbitrators as it is impossible to know in advance how big a dispute will be.

5. When a dispute arises and it is referred to an arbitral tribunal of three members or a sole arbitrator (hereinafter 'the Tribunal'), a framework needs to be established for the ensuing proceedings up to the rendering of the award. Terms of Reference are this framework.

6. It is not a rigid framework, as it is always possible for the Tribunal and the parties to adapt the proceedings in light of developments and any new elements that may emerge, provided they keep within the framework initially established.

7. The purpose of Terms of Reference is to ensure that the Tribunal remains within the framework that has been laid down and deals with all the questions that have been submitted to it without going beyond its remit: the Tribunal must not rule infra petita or ultra petita. Terms of Reference thus allow checks to be carried out at four levels: by the Tribunal itself, by the Secretariat when preparing to submit the draft award to the ICC International Court of Arbitration (hereinafter 'the Court'), by the Court itself when scrutinizing the draft award pursuant to Article 27 of the Rules, and by State courts in the event of their being seized of an application to enforce or set aside an award that is not performed spontaneously.

8. If Terms of Reference are well drafted, structured and balanced, they will facilitate the conduct of the proceedings and help the parties to see from the outset the strengths and weaknesses of their respective arguments. This is indeed one of the [Page22:] reasons why parties not infrequently reach a settlement shortly after signing the Terms of Reference.4

9. Article 18 of the Rules lays down the contents of the Terms of Reference.

10. Article 18(1) reads: 'As soon as it has received the file from the Secretariat, the Arbitral Tribunal shall draw up, on the basis of documents or in the presence of the parties and in the light of their most recent submissions, a document defining its Terms of Reference.' The text is clear and requires little commentary.

11. Terms of Reference are a precondition. They therefore need to be drawn up as soon as the Tribunal receives the file from the Secretariat. The second paragraph of Article 18 states that '[w]ithin two months of the date on which the file has been transmitted to it, the Arbitral Tribunal shall transmit to the Court the Terms of Reference signed by it and the parties'.

12. This period of two months is in most cases quite enough. The Tribunal should therefore endeavour to keep within it. The Court will only extend it 'pursuant to a reasoned request from the Arbitral Tribunal or on its own initiative if it decides it is necessary to do so' (Article 18(2)).

13. Terms of Reference are drawn up 'on the basis of documents or in the presence of the parties'. It will therefore be necessary to decide whether or not they should be signed in the presence of the parties.

14. As a rule, it is preferable for the parties or their representatives to be present at the signing. The more complex a case and the more complicated the proceedings, the more necessary it is to have the parties present. A meeting is also desirable when the arbitrators and/or the parties belong to different cultures.

15. The Tribunal should therefore consult the parties and weigh the advantages of a meeting against the costs it will incur. No decision should be taken before considering these different factors. The decisive factor will be cost.

16. Article 18(1) states that the Terms of Reference are established in the light of the parties' most recent submissions. The parties are free to include new claims right up to the moment the Terms of Reference are signed.

17. The Terms of Reference are signed by the Tribunal and normally by the parties or their representatives (hereinafter subsumed withing the term 'parties').

18. In practice, the following course of action is recommended:

(i) As soon as the Tribunal receives the case, the chairman (or sole arbitrator) writes to the parties to announce his or her appointment.

(ii) The chairman (or sole arbitrator) informs them that they will shortly receive draft Terms of Reference and asks them already whether they prefer to meet to sign them or to sign by correspondence.

In the same letter, the chairman (or sole arbitrator) asks the parties to prepare a brief description of their claims, the relief sought and an indication of the amounts claimed or counterclaimed, for inclusion in the Terms of Reference. The parties are given a time limit within which to reply to the chairman's correspondence.[Page23:]

(iv) Here and elsewhere throughout the proceedings, in cases submitted to three-member tribunals, the chairman will not send any correspondence without first showing it to the co-arbitrators and seeking their comments.

(v) The chairman (or sole arbitrator) then prepares a draft of the entire Terms of Reference in which he will include the information which the parties have in the meantime been asked to provide. The chairman will give a neutral description of the facts of the case and the cause of the dispute. A clear and concise description will make it easer to understand the rest of the Terms of Reference.

19. In the very first letter they receive from the Tribunal, the parties will be asked to provide their telephone and fax numbers and their email addresses.

20. Article 18(1) states that the Terms of Reference shall include 'a) the full names and descriptions of the parties'. This requirement, albeit simple and obvious, may raise difficult issues in practice.

21. It is up to each party to supply its precise name and, as the case may be, its corporate form, the place where it is registered, its registration number and, in particular, the capacity in which the person signing the Terms of Reference acts. If that person represents the company, what is the source of the person's powers-company bylaws, a general meeting, or a delegation? It is preferable to seek a power of attorney from any person who signs the Terms of Reference. Even in those States where lawyers are recognized as having broad powers of representation, it is advisable to obtain a special power of attorney for signing Terms of Reference. The Tribunal should be particularly vigilant over this.

22. It is the Tribunal's responsibility to obtain from the parties any missing information if the details they have provided are incomplete.

23. The Terms of Reference must also include 'b) the addresses of the parties to which notifications and communications arising in the course of the arbitration may be made'.

24. If a party has more than one counsel, it needs to be stated whether communications should be sent to each of them or just to one of them.

25. It is recommended that, before signing the Terms of Reference, the Tribunal and each of the parties should carefully check that the addresses and means by which notifications and communications are to be sent are clearly stated. Changes of address are dealt with in a separate article of the Terms of Reference.

26. Practice shows that sometimes parties or counsel fail to advise of changes of address. This may affect the entire proceedings. It is therefore essential to include in the Terms of Reference a separate clause that could be entitled Notifications and might be worded as follows:

Each counsel shall send simultaneously to the other counsel a copy of any communications, pleadings or documents intended for the Arbitral Tribunal, with a copy to the Secretariat of the ICC International Court of Arbitration.

All notifications and correspondence sent as part of the present arbitration will be considered as valid if sent to the addresses given above.

Any fax or email will be considered as having been received on the date of <page nr="24" /> receipt of the fax or email, unless any one of the addressees informs the sender that the fax or the email is entirely or partly illegible.

The Arbitral Tribunal, counsel and/or parties shall immediately notify the arbitrators, counsel and/or parties mentioned in the present Terms of Reference and the Secretariat of the ICC International Court of Arbitration of any changes in their postal addresses, email addresses, telephone numbers or fax numbers. Failing such notification, any communication sent in accordance with the details given herein shall be valid.

27. The Terms of Reference contain 'c) a summary of the parties' respective claims and of the relief sought by each party, with an indication to the extent possible of the amounts claimed or counterclaimed'.

28. In practice, when drafting the Terms of Reference, arbitrators often deal with the summary of the claims in one article and the relief sought in another, separate article.

29. It is recommended that each party should be asked to draft a summary of its claims of no more than two to three pages, and that it should be set a time limit in which to submit it.

30. The article of the Terms of Reference entitled Parties' Claims will typically consist of three paragraphs: the first will record the claims made by the claimant(s), the second those of the respondent(s), and the third might read as follows:

This description is intended to satisfy the provisions of Article 18(1)(c) of the ICC Rules of Arbitration ('ICC Rules'), without prejudice to any other allegations that may be forthcoming, any arguments or claims contained in pleadings and other documents that have already been submitted or may subsequently be submitted. Accordingly, the Arbitral Tribunal shall take into consideration the new allegations, arguments, claims, written submissions and oral depositions within the limits of Article 19 of the ICC Rules and the provisional timetable for the conduct of the proceedings established pursuant to Article 18(4). In signing these Terms of Reference, none of the parties agrees to or accepts the other party's summary as set out above.

31. Such a clause has the advantage of allowing each party to describe its claims as it wishes, without being criticized by the other party and knowing that, in so doing, it does not accept the claims described by its opponent. Whenever a Tribunal describes the parties' claims itself, it more often than not encounters objections from one or other of the parties, which may sometimes delay the signing of the Terms of Reference.

32. The list of relief sought will be drafted and included in the same way.

33. Each party must give full details of the amounts claimed. The parties are sometimes reluctant to state these clearly, often because they wish to reduce the amount of the provision requested by ICC. This is not the best way of achieving their purpose, for ambiguity is not helpful and they will in any case be required to quantify their claims. Claims should not be confused with the issues to be determined, which are dealt with in subsection (d) of the first paragraph of Article 18.

34. The parties may, in the course of the proceedings, extend the scope of their claims pursuant to Article 19: 'After the Terms of Reference have been signed or [Page25:] approved by the Court, no party shall make new claims or counterclaims which fall outside the limits of the Terms of Reference unless it has been authorized to do so by the Arbitral Tribunal, which shall consider the nature of such new claims or counterclaims, the stage of the arbitration and other relevant circumstances.'

35. Although expressed in negative terms ('no party shall make new claims or counterclaims'), this article allows the Tribunal to decide whether or not to accept new claims. In so doing, the tribunal will 'consider the nature of such new claims or counterclaims, the stage of the arbitration and other relevant circumstances' and rule on the matter by way of an order.

36. The Tribunal will above all consider the limits of the Terms of Reference. Thus, a change in the amount claimed does not affect the nature of the claim and does not come within the scope of Article 19. If, on the other hand, the claim is new, the Tribunal will determine whether or not it comes within the Terms of Reference.

37. The parties are therefore advised to give as much detail as possible when the Terms of Reference are being drawn up, so as to avoid a new claim being rejected on the grounds that it lies outside the scope of Article 19. In other words, the description should be as broad as possible, so as to cover all claims while remaining within the scope of the dispute as defined in the Terms of Reference.

38. Article 18(1)(d) states that the Terms of Reference shall contain, 'unless the Arbitral Tribunal considers it inappropriate, a list of issues to be determined'.

39. This was one of the texts over which there was most discussion when the current version of the Rules were being prepared. The previous version, dating from 1988, required that the Terms of Reference include a 'definition of the issues to be determined', whereas the 1998 Rules introduced a large element of discretion-'unless the Arbitral Tribunal considers it inappropriate'. They also refer simply to 'a list of issues', without a definite article.

40. Practice reveals two distinct tendencies.

41. The first identifies each of the questions to be decided, whether they be questions of fact or law, substance or procedure.

42. The obvious advantage of this approach is that it facilitates the work of the Tribunal, the Court when scrutinizing the draft award, and a State court that may be required to rule on a motion to set aside the award or an application for its enforcement or recognition, by allowing them to see immediately whether the award is infra petita or ultra petita. The Tribunal will avoid being found infra petita if it mentions in its award that such and such a problem, which was mentioned in the Terms of Reference but not decided in the award, has not been taken any further and was thus abandoned by the parties, or was implicitly settled.

43. The disadvantage of this approach is that an arbitration usually develops, and points that seemed essential at the beginning of the dispute will often disappear as the proceedings unfold and, in the end, will no longer play the role they had at the outset. Conversely, new questions will arise in the parties' submissions. If the Tribunal and the parties decide to include a list, it is crucial to mention that it is not exhaustive.[Page26:]

44. The second approach is to use general wording such as the following:

The Arbitral Tribunal is required to resolve all the questions in the parties' submissions-unless the parties have abandoned any of them-aiming to rule on the claims and defences raised by each of them, without prejudice to the provisions of Article 19 of the ICC Rules. Pursuant to Article 18(1)(d), the Arbitral Tribunal considers it inappropriate to list the issues to be determined, insofar as these are clearly stated in Article X.X above.

45. If the Tribunal considers it inappropriate to draw up a list of issues to be determined, this needs to be mentioned. It could state that as the parties' claims and the relief sought have been fully listed, there is no need define the issues to be resolved in any greater detail.

46. This option saves the parties and the Tribunal from having to engage in what are often difficult discussions over the list of issues to be determined.

47. There is no hard and fast rule in this respect. Each arbitrator decides as he or she thinks fit, provided an explanation is given in accordance with Article 18(1)(d).

48. Subsection (e) requires that the 'full names, descriptions and addresses of the arbitrators' be stated. Here the arbitrators' telephone and fax numbers and email addresses should be indicated with utmost clarity.

49. A description should also be given of the way in which the Tribunal was constituted, that is to say the dates on which the arbitrators were confirmed by the Secretary General or the Court, whether they were nominated by one of the parties, whether the chairman was nominated by the parties or the co-arbitrators, or appointed by the Court or the Secretary General, or any other appointing authority agreed by the parties. If the appointment was made upon the proposal of a national committee, the latter should be identified.

50. Finally, it is suggested that a clause be included stating that the parties recognize that the Tribunal has been correctly constituted and that, at the date of signing, they have no objections to any of the arbitrators. However, such a clause can be included only if all the parties sign the Terms of Reference, for it will not be binding on a party that has not signed.

51. Subsection (f) requires that the place of the arbitration be mentioned. The place (seat or situs) is indeed of considerable importance.

52. The Tribunal must respect any mandatory rules applicable to arbitration that are in force at the place of the arbitration. Requests for assistance from State courts are in most cases filed with local courts, as also are most applications for awards to be set aside.

53. The place of arbitration is chosen by the parties or, if they do not express a choice or are in disagreement, by the Court (Article 14(1) of the Rules). The Court will take into consideration the connecting factors essential to the dispute.

54. Unless the parties decide to the contrary, the Tribunal may, after first consulting the parties, hold hearings and meetings in any other place that it considers to be appropriate. It may likewise deliberate at any location. In this, the Tribunal should be guided by considerations of convenience and cost.[Page27:]

55. It is therefore advisable to include a clause that might be worded as follows:

The seat of the arbitration is situated at . . ., in accordance with Article X.X of the Contract (or in accordance with the decision of the Court of [date], pursuant to Article 14(1) of the ICC Rules).

Nonetheless, after consulting the parties, the Arbitral Tribunal (or the Sole Arbitrator) may hold hearings and meetings at any other place it considers appropriate.

56. In accordance with Article 25(3), the award is deemed to be made at the place of the arbitration and on the date stated therein.

57. The Rules do not contemplate the possibility of changing the place of the arbitration without the consent of the parties.

58. The last subsection of Article 18(1) states that the Terms of Reference shall also include 'particulars of the applicable procedural rules and, if such is the case, reference to the power conferred upon the Arbitral Tribunal to act as amiable compositeur or to decide ex aequo et bono'.

59. The procedure is chosen in accordance with the basic principle stated in Article 15(1): 'The procedure before the Arbitral Tribunal shall be governed by these Rules and, where these Rules are silent, by any rules which the parties or, failing them, the Arbitral Tribunal may settle on, whether or not reference is thereby made to the rules of procedure of a national law to be applied to the arbitration.'

60. This article should be read in conjunction with Article 20(1), which requires the Tribunal to 'proceed within as short a time as possible to establish the facts of the case by all appropriate means', and Article 21(3), which states that the Tribunal 'shall be in full charge of the hearings'.

61. The Rules form an independent whole and, as such, are separate from the rules of procedure at the place of arbitration, other than those of a mandatory character, i.e. chiefly due process and public policy.

62. The simplest solution is to insert a clause that could read as follows:

The procedure will be in accordance with the ICC Rules in force as of 1 January 1998.

Procedural orders shall be made by the Arbitral Tribunal but signed by the chairman of the Arbitral Tribunal.

After consulting the parties, the Arbitral Tribunal shall be free to rule on whatever issues it decides in one or more partial awards and to join to the merits any or all of the preliminary issues that might be referred to it.

There would appear to be no need to add anything else.

63. It is sometimes suggested that an express reference to certain other documents, such as the IBA Rules on the Taking of Evidence in International Commercial Arbitration, be included in the Terms of Reference. We do not consider this to be appropriate. Besides, arbitrators and parties can decide that these or other rules may be used for reference purposes, without their being compulsory. The Terms of Reference should be self-sufficient when read in conjunction with the Rules.[Page28:]

64. When the Terms of Reference are being negotiated, an article on discovery is sometimes requested. We believe it is preferable to leave the Tribunal entirely free and thus not to include any such provision. However, if the question is raised, there would appear to be nothing against drafting a clause along the following lines:

In the event of an application for discovery, each party will have one calendar month in which to reach an agreement with the other party on the possible disclosure of documents. The Arbitral Tribunal shall be informed of the requests but will not be kept informed of the development of discussions between the parties. If after thirty days the parties have not been able to reach an agreement on discovery, the matter will be referred to and decided by the Arbitral Tribunal.

65. If the Terms of Reference contain simply a general reference to the Rules as far as procedure is concerned, the Tribunal will have to deal with any difficulties that may arise on a case-by-case basis. This it will do by way of procedural orders. It is indeed impossible to provide in advance for all aspects of procedure: arbitration needs to remain flexible, without losing its predictability, which is precisely one of the purposes of the Terms of Reference.

66. It may be appropriate to mention, as part of the procedural rules, that the Tribunal will decide whether or not to hear witnesses and experts in accordance with the Rules and will take all appropriate action in this regard.

67. It is advisable to mention the language of the arbitration if this has been agreed in the arbitration clause or at any rate prior to the signing of the Terms of Reference. A clause along the following lines could be included:

In accordance with Article X.X of the Contract, the language of the arbitration shall be . . .:

However, any original documents in . . . may be produced in the proceedings. Any original documents in another language must be accompanied by a translation in . . . A sworn translation will be required if there are objections to the translation produced.

The arbitrator will give the necessary instructions in the event that it should be decided to hear witnesses, specialists or experts, who do not speak . . .

68. If the parties disagree over the language of the arbitration, we recommend that the Tribunal seek the parties' views and rule on the matter by way of a procedural order before the Terms of Reference are drawn up. It is conceivable that if the Terms of Reference are signed in one or more languages before the parties have agreed on the language of the arbitration, this would influence the Tribunal's subsequent decision on the matter.

69. In the case of arbitrations conducted in two or more languages, care should be taken to specify whether the submissions, testimonies and pleadings should be in both or all languages (which will necessitate interpreters at hearings), or whether a single working language is to be used. In such arbitrations, it is also essential to decide whether procedural orders and awards should be drafted in both or all languages, in which case it should be specified that one of the languages will be authentic. Experience shows that there are always differences of interpretation between two versions of the same text.[Page29:]

70. Questions relating to exchanges of pleadings, testimonies and dates will not be dealt with in the Terms of Reference but in the provisional timetable (see paragraph 88 below). Every effort should be made to avoid including in the Terms of Reference anything that is likely to need changing as the proceedings unfold, for no change can be made to the Terms of Reference without the agreement of all those who have signed them.

71. There is no need to include in the Terms of Reference matters that already appear in the Rules, such as new claims (Article 19), the closing of the proceedings (Article 22) and majority decisions (Article 25).

72. It is advisable to include a clause concerning the destruction of documents after the award has been rendered.5 This might be worded as follows:

Two months after the final award has been notified to the parties by the Secretariat of the ICC International Court of Arbitration, the arbitrator(s) will be free to destroy the documents submitted in the arbitration unless, within a month of said notification, the parties expressly request that the documents be returned to them at their sole cost.

73. If the Tribunal wishes to appoint an administrative secretary, authorization for this appointment should preferably be given in the Terms of Reference. Regard should be had to the practice established by ICC, which has drawn up a note covering the appointment, remuneration and duties of administrative secretaries.

74. According to Article 17 of the Rules, if the parties have not decided otherwise, the Tribunal will apply to the merits of the dispute the rules of law it considers to be appropriate. The Terms of Reference should specify the chosen rules of law or applicable law. It should be noted that the 1988 Rules referred to 'the law to be applied by the arbitrator to the merits of the dispute', whereas the current Rules use the expression 'applicable rules of law'.

75. Article 18(1)(g) also requires that, if such be the case, reference be made to 'the power conferred upon the Arbitral Tribunal to act as amiable compositeur or to decide ex aequo et bono'. Only if the parties have agreed to give the Tribunal the power to act as amiable compositeur or ex aequo et bono can it act in such capacity. If it is given such powers, they should also be mentioned in the award.

76. There are other particulars which may-and moreover should-be included in the Terms of Reference. They are as follows.

77. Confidentiality is generally regarded as inherent to arbitration. It is mentioned briefly in the Rules, namely in Appendices I (Article 6) and II (Article 1), which respectively contain the Statutes and the Internal Rules of the Court and state that the work of the Court is of a confidential nature. In addition, Article 20(7) of the Rules empowers the Arbitral Tribunal to 'take measures for protecting trade secrets and confidential information'.

78. Although essential, the need to respect confidentiality has become less strict under the influence of changing standards of behaviour. It is therefore advisable to include a clause such as the following:

Unless disclosure is required (i) by statute, ordinance or stock market regulations or (ii) to protect the parties, the parties and the members of the <page nr="30" /> Arbitral Tribunal undertake to preserve the private and confidential nature of this arbitration, in particular the procedure followed, documents exchanged, evidence produced and all procedural formalities, including the award. However, each of the signatories may disclose such information to any person bound by an obligation of confidentiality. The parties shall make this clause known to any third party that participates in this arbitration, in whatever capacity, including witnesses and experts.

79. As a result of the unfortunate ruling by the European Court of Justice in the von Hoffmann case, arbitrators resident in the European Union are in principle subject to VAT irrespective of the nationalities of the parties and the place of arbitration. Practices vary, however, from one country to another, and similar problems may exist outside the European Union. In order to ensure that the parties pay this VAT, which they should usually be able to recover, it is advisable to include a clause along the following lines:

In the event that VAT is due on the arbitrators' fees under the applicable tax law, the parties undertake to pay the necessary VAT at the request of the arbitrators and upon the presentation of their invoices.

80. As a general rule, any matters decided in the Terms of Reference, such as the language, VAT, confidentiality, or even-albeit less frequently-the place of the arbitration (for the Court usually fixes the place of arbitration failing agreement between the parties) require the consent of all the participants. If they do not all sign the Terms of Reference, such matters should not be mentioned.

81. Article 18(2) states that the Terms of Reference shall be signed by the parties and the Tribunal. Normally, there will be no particular difficulty about signing the Terms of Reference, especially if the procedure suggested above has been followed, i.e. if each of the parties has drafted the description of its claims and the relief sought.

82. The Terms of Reference must be signed by each of the arbitrators, failing which they will not be valid.

83. It is possible to sign counterparts, that is to say each party signs an original without the other parties signing the same document. This means that there will be as many originals as there are parties. Such a procedure is not recommended, however.

84. There are times when a party refuses to sign, for example because it regards the arbitration clause as invalid or does not consider itself to be a party to the arbitration.

85. If one of the parties does not sign, the Terms of Reference will nonetheless be valid, but on the basis of a procedure that will be described below. If none of the parties signs, the Terms of Reference are non-existent.

86. If one of the parties refuses to participate in drawing up the Terms of Reference or does not sign them, they will be submitted to the Court for approval (Article 18(3)); if all the parties sign, they are simply transmitted to the Court (Article 18(2)). When approving Terms of Reference, the Court ensures that they do not contain anything for which the agreement of all the parties is required (see paragraph 80 above).

87. As soon as the Terms of Reference have been signed or, as the case may be, approved by the Court, the arbitration proceeds.[Page31:]

88. The 1998 Rules very fortunately require that a procedural timetable be drawn up within a short space of time. This requirement is found in Article 18(4), which reads: 'When drawing up the Terms of Reference, or as soon as possible thereafter, the Arbitral Tribunal, after having consulted the parties, shall establish in a separate document a provisional timetable that it intends to follow for the conduct of the arbitration and shall communicate it to the Court and the parties. Any subsequent modifications of the provisional timetable shall be communicated to the Court and the parties.'

89. It is sensible not to make the timetable part of the Terms of Reference, so as to allow the Tribunal to make changes if anything unexpected occurs. Changes can be made to the Terms of Reference only with the agreement of all of the signatories thereto.

90. The provisional timetable is drawn up by the Tribunal after consulting the parties, which is essential.

91. However, it raises certain questions of principle. In the event of disagreement, who will have the final word? In our opinion, there can be no doubt: according to Article 20 of the Rules, the Tribunal 'shall proceed within as short a time as possible to establish the facts of the case by all appropriate means'. In practice, if the arbitration is to proceed smoothly, it is essential that the Tribunal and the parties agree on all aspects of the provisional timetable. In the event of conflict, the Tribunal's decision should prevail.

92. The provisional timetable will generally specify the dates for an initial exchange of pleadings and then for a second exchange, provided this is requested by a party within a reasonable period after the first exchange.

93. Depending on whether one or two exchanges are agreed, provisional dates will be reserved for hearings. This is essential to avoid proceedings dragging out.

94. The provisional timetable will allow for the possibility of hearing witnesses and will set a date by which the parties must request this. The date set will normally be very soon after the first exchange of pleadings, regardless of whether this is followed by a second exchange.

95. The arbitral will reserve the earliest date chosen, either just to hear the witnesses, or to hear both the witnesses and the final pleadings. It will in due course inform the parties which is the case and the place of the hearing.

96. It is clearly impossible to anticipate all procedural incidents from the outset. However, the great advantage of the provisional timetable is that it lays down a framework. It will be up to the Tribunal to ensure that the proceedings remain within this framework. The need to draw up a provisional timetable was one of the key features introduced in the 1998 Rules, as it makes ICC arbitration more effective and predictable and allows the arbitrators to become actively involved in the management of the case.

97. It should be recalled that, according to Article 22 of the Rules, when the Tribunal has declared that the proceedings are closed, it must indicate to the Secretariat the approximate date by which the draft award will be submitted to the Court for approval, as provided in Article 27.[Page32:]

Terms of Reference are a fundamental and distinctive feature of ICC arbitration. If they are drawn up in accordance with the provisions of Article 18, they will help to ensure that ICC's key aims of speed, predictability and effectiveness will be met. Arbitrators should attach great importance to the wording of the Terms of Reference and be conscious of the key role they play in their application. Every effort should be made to avoid ambiguous expressions in the Terms of Reference and undue leeway in the provisional timetable.

The better the Terms of Reference, the better will be the arbitration.

1
The thoughts and opinions expressed in this article are those of the author. They should not be thought to reflect the viewpoint of the ICC International Court of Arbitration or its Secretariat.

2
S. Lazareff, 'Terms of Reference under the 1988 ICC Arbitration Rules - A Practical Guide' (1992) 3:1 ICC ICArb. Bull. 24.

3
S. Lazareff & E. Schäfer, 'The 1992 Practical Guide on Terms of Reference Revisited' (1999) 10:2 ICC ICArb. Bull. 14.

4
It is impossible to know with any degree of certainty the extent to which the drawing up of the Terms of Reference is the direct cause of the withdrawal of a case. It can be seen, however, that when parties become aware of the position of their opponents, this may encourage them to settle.

5
As far as ICC is concerned, we would simply point out that Article 1.7 of Appendix II to the Rules provides that: 'Any documents, communications or correspondence submitted by the parties or the arbitrators may be destroyed unless a party or an arbitrator requests in writing within a period fixed by the Secretariat the return of such documents. All related costs and expenses for the return of those documents shall be paid by such party or arbitrator.'.