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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This article is concerned with Article 19 ('New Claims') of the ICC Rules of Arbitration. It is a provision that complements the requirements of the Rules in relation to the Terms of Reference (Article 18) and is therefore unique to ICC arbitration. It has, perhaps as a consequence, been susceptible to varying interpretations over the years and has, in any event, been the subject of sufficient discussion to warrant a fresh examination, in the light of the commentary that it has generated and its construction by ICC arbitral tribunals.1
I. Article 19: background and purpose
Article 19 provides:
After the Terms of Reference have been signed or 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.
Article 19 has its origin in a series of predecessor provisions that, from 1955 until the most recent revision of the ICC Rules in 1998, prevented parties from introducing new claims or counterclaims in an ICC arbitration after the establishment of the Terms of Reference unless they fell 'within the limits' of the Terms of Reference or the other party otherwise consented.2 The Rules did not previously, nor do they now, restrict the freedom of the parties to submit new claims or counterclaims prior to signing the Terms of Reference.3 But once the Terms of Reference were established, they constituted an impenetrable barrier to the submission of new claims falling outside their 'limits', absent party consent. [Page56:]
Indeed, one of the purposes of the Terms of Reference in ICC arbitration is to provide a framework for the arbitration at an early stage of the proceedings.4 The predecessor provisions of Article 19, thus, served the important function, specific to ICC arbitration, of ensuring that the parties' claims and counterclaims would be set forth comprehensively in the Terms of Reference and that, thereafter, the proceedings would suffer no delay due to the introduction of new claims, unless the parties agreed otherwise.
In so providing, the ICC Rules adopted a stance that, while encouraging expedition, was nevertheless widely perceived as unduly harsh.5 There may indeed be circumstances where allowing a new claim is to be preferred to requiring a new arbitration to be commenced, particularly where the new claim is closely related to the claims already under consideration and little or no disruption is likely to be suffered as a consequence. Barring new claims in cases where the opposing party is not participating in the arbitration may also be unjustified. Other arbitration rules, thus, generally confer broad discretion on the arbitral tribunal, at any stage of the proceedings, to determine whether new claims or counterclaims may be introduced in the arbitration.6 This too is generally the approach of those arbitration laws that contain provisions on the subject.7
When the ICC Rules were revised in 1998, Article 19 was, thus, intended to provide the Arbitral Tribunal with the power to admit 'new claims', irrespective of whether they fell within the limits of the Terms of Reference.
Over the course of the last eight years, Article 19 has unquestionably achieved its goal of introducing the desired additional flexibility into the ICC arbitration process, although questions continue to arise in relation to the construction of certain of its terms (in particular, the meaning of the phrases 'new claims' and 'the limits of' the Terms of Reference). The related issues of construction, and how they have been resolved by ICC arbitrators, are the subject of much of the discussion that follows. Before those issues are dealt with, however, a few words should be said about various matters that Article 19 does not address.
II. Matters that Article 19 does not address
As indicated, Article 19 is concerned with the right of the parties to make new claims or counterclaims in the arbitration. However, most other arbitration rules contain a broader provision concerning not only the introduction of new claims, but the 'amendment' of claims and defenses during the arbitration. Article 20 of the UNCITRAL Arbitration Rules is typical of such a provision:
During the course of the arbitral proceedings either party may amend or supplement his claim or defence unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it or prejudice to the other party or any [Page57:] other circumstances. However, a claim may not be amended in such a manner that the amended claim falls outside the scope of the arbitration clause or separate arbitration agreement.
As Article 19 says nothing about 'amendments' of claims, but only addresses 'new' claims, it effectively creates a distinction between the two categories that is not found in other arbitration rules.8 As discussed further below, ICC arbitrators have struggled with that distinction, and the manner in which they have identified claims as 'new' is the focus of much of the discussion that follows.
It is in any event noteworthy that 'amendments' that fall short of constituting 'new' claims, e.g. the withdrawal of all or part of a claim or its modification in some other way, and amendments of defenses, are not caught by Article 19. Similarly, Article 19 does not bar the parties from advancing new arguments in support of their claims or defenses. Nevertheless, amendments to defenses and entirely new legal and factual arguments may be just as disruptive of an arbitration as a new claim if raised at a late stage of the proceedings.9
This underscores an important truth about Article 19: it does not exist in a vacuum and has to be read in the context of the ICC Rules as a whole, including not only Article 18, but Articles 15 and 22 as well. Thus, under Article 15, where the ICC Rules are silent and the parties have not otherwise agreed, the arbitral tribunal has the power to fix rules governing the proceedings. Such rules must be fair and impartial and 'ensure that each party has a reasonable opportunity to present its case'.10 Article 22, meanwhile, provides that the arbitral tribunal shall declare the proceedings closed, thus barring further submissions or arguments, unless authorized, 'when it is satisfied that the parties have had a reasonable opportunity to present their cases'.
Under Articles 15 and 22, therefore, the arbitral tribunal will ordinarily fix a calendar for the exchange of written submissions, schedule one or more hearing dates and bring the proceedings to a close. The parties are, thus, not free to make submissions whenever and as they like, but, rather, are required to conduct themselves within a procedural framework that is intended to ensure that the arbitration proceeds as expeditiously as possible, with the parties being treated 'fairly and impartially'.
In the circumstances, it should be obvious that, while expressly barring certain new claims unless authorized, Article 19 is not intended, by negative implication, to provide the parties with carte blanche to introduce other new claims at any time simply because they are not prohibited by that provision. The freedom that the parties may enjoy to amend their submissions is necessarily constrained by the rules for the proceedings agreed by the parties or fixed by the arbitrators. Such rules may, thus, affect the right of the parties to introduce new claims, even if not expressly barred by Article 19, just as they may affect the parties' right to introduce new defenses, which, as already indicated, are not caught by Article 19.11[Page58:]
In addition, unlike other arbitration rules, as already noted, Article 19 does not apply to the withdrawal of claims. However, this does not mean that parties are necessarily free to do as they like in this regard after the Terms of Reference have been signed or approved. Indeed, parties have successfully argued before ICC arbitral tribunals that, once a claim has been included in the Terms of Reference, it may not be withdrawn without the other party's consent.12 A party may have an interest in refusing consent when it wishes to obtain an award rejecting the other party's claim, for example, in order to prevent its subsequent reintroduction in other proceedings.
Lastly, it is important to note that Article 19 does not automatically permit the introduction into an arbitration of new claims where the other party does not object. Other arbitration rules, such as Article 20 of the UNCITRAL Rules cited above, expressly allow new claims unless disallowed by the arbitral tribunal. However, Article 19 is different insofar as it expressly disallows new claims 'outside the limits of the Terms of Reference' unless expressly authorized by the arbitral tribunal, whether or not the other party objects to the new claim being submitted. This means that ICC arbitrators must be vigilant in ensuring that, as the parties' claims evolve during the arbitration, appropriate authorizations for new claims are given, as necessary, arguably even when no objection has been raised by a party.
III. What is a 'new claim'?
Turning now to the substance of Article 19, its unique characteristics, as compared with similar provisions in other arbitration rules, have, as in the case of its predecessor provision, frequently given rise to questions.
Thus, when the ICC Rules were last amended in 1998, one of the members of the working group that produced the new version of the rules noted, in relation to Article 19:
the term 'new claim' is not clear. Is an increase in the amount a 'new claim'? Does a change in the legal basis for a claim meet this characterization? Or can a change in currency amount to a 'new claim'? The questions receive different answers by different practitioners and by different arbitral tribunals.13
And over the years they have. Indeed, an illuminating survey of the decisions of ICC arbitral tribunals that was published in the ICC International Court of Arbitration Bulletin a decade ago concerning the application of Article 19's predecessor provision, Article 16, demonstrated the variety of approaches of ICC arbitral tribunals in relation to this subject.14
Such variety is attributable in large measure to the ambiguity of the terms used in Article 19 (and previously Article 16), beginning with the word 'claim'. Indeed, the determination of what constitutes a 'new claim' depends on what is meant by 'claim', and this, in turn, is defined nowhere in the ICC Rules. Not only is the word 'claim' not [Page59:] defined in the Rules, but it appears in different provisions in different contexts along with other apparently distinct terms, such as 'relief'.
Thus, Article 4 (Request for Arbitration) requires the following information, inter alia, to be included in a Request: (i) 'a description of the nature and circumstances of the dispute giving rise to the claim(s)' and (ii) 'a statement of the relief sought, including, to the extent possible, an indication of any amount(s) claimed'. Article 18(1)(c), meanwhile, provides that the Terms of Reference shall include 'a summary of the parties' respective claims and of the relief sought by each party'. The reader is therefore left to wonder what distinction, if any, is to be drawn between a 'claim', on the one hand, and 'relief', on the other.15
Such difficulties are compounded by the different terminology used in other linguistic versions of the Rules. Thus, for example, the French version refers in Article 18(1)(c) to a summary of the parties' 'prétentions' and the decisions requested by the parties, but then refers in Article 19 to the parties' new 'demandes', a term used nowhere in Article 18. A similar difference between the terms used in Articles 18 and 19 is to be found in the Spanish version of the Rules ( 'pretensiones' and 'peticiones' in Article 18 and 'demandas' in Article 19).
In fact, the word 'claim' does not have a single, fixed meaning in English. Although often used by Anglo-American lawyers to refer to a claim for specified relief-e.g. damages, specific performance or the termination of a contract, usually based on a distinctive group of facts16-the required elements of pleading a claim in the context of a judicial action are a function of applicable procedural laws. The same is true with respect to other similar terms, such as 'prétentions', which appears, for example in Article 4 of the French New Code of Civil Procedure.17
In the context of ICC arbitration, such local rules of procedure are not required to be applied, unless otherwise agreed, and arbitrators are, thus, free to construe Article 19 as they see fit.18 In doing so, moreover, ICC arbitrators, unlike in a judicial setting, are required to assess the 'newness' of a claim or counterclaim with reference to the Terms of Reference and their perceived 'limits'. Whether a claim is considered to be 'new' will therefore depend, to a significant extent, on how it has been described in the Terms of Reference.
Notwithstanding the differing approaches of ICC arbitrators to the question of what is a 'new' claim under Article 19, from awards issued over the last several years a majority view appears to have emerged with respect to a number of the issues that most often arise in practice. These are now considered in turn. [Page60:]
A. Interim relief
As already noted, Article 18(1)(c) of the ICC Rules provides that the Terms of Reference shall include 'a summary of the parties' respective claims and of the relief sought by each party'. It might therefore be concluded that the 'relief' to be described should, in the absence of any indication in the ICC Rules to the contrary, include interim relief and that, as a consequence, requests for such relief, if made after the Terms of Reference have been finalized, may constitute 'new claims' for the purpose of Article 19.
In those cases, however, where the issue has been considered, ICC arbitrators have not regarded requests for interim or conservatory relief to constitute 'claims' within the meaning of Article 19 (or its predecessor provision, Article 16).
The first reported decision on this subject was contained in a partial award rendered in 1984 by an ICC tribunal sitting in Amsterdam.19 The arbitration arose in connection with a construction project in Africa. Two months after the commencement of the arbitration by the contractor, the Owner terminated the contract and called the contractor's bank guarantees, which then prompted the contractor to request the tribunal to order the reimbursement of the sums obtained from the call of the guarantees and the provision of new guarantees by the contractor, pending the tribunal's final award on the merits. The Owner objected that the contractor's request was inadmissible as it was not described in the Terms of Reference. The arbitral tribunal did not agree. Referring to the provision on interim measures then contained in the ICC Rules (Article 8(5), since replaced by Article 23), the tribunal decided as follows (translation from French):
after the transmission of the file to the Arbitral Tribunal, it is normally up to it to order any conservatory measures . . . The Terms of Reference, moreover, confirm this position in the present case by authorizing the Tribunal 'to examine all contentious issues that have been raised by the parties in their written memorials or that will arise during the argument before the Arbitral Tribunal', which includes urgent or conservatory requests.
Thus, the tribunal characterized the request for conservatory relief in that case as a 'contentious issue' rather than as a 'claim' and concluded that it was not required to be specifically described in the Terms of Reference, a position that was subsequently endorsed by commentators, given that requests for interim relief are ordinarily urgent and, thus, 'by their very nature . . . are only rarely foreseeable when the Terms of Reference are drafted'.20
In fact, since the above award was issued, the ICC Rules have been amended to provide expressly, in Article 23(1), that the arbitral tribunal may order any interim or conservatory measure it deems appropriate 'as soon as the file has been transmitted to it' by the Secretariat of the International Court of Arbitration. Thus, unlike in the case of a 'claim' for final relief, an order for interim relief may be made even before the Terms of Reference have been drawn up, from which it may be concluded that the tribunal's authority to rule upon such a request is not circumscribed by the Terms of Reference and that, accordingly, Article 19 is inapplicable. [Page61:]
Consistent with this position, an ICC tribunal sitting in Paris more recently decided that a request for a party to post security for costs is not a 'new claim, falling outside the scope of the Terms of Reference'. The tribunal reasoned: 'such request is not related to the substance of the case, but is for an interim measure under Article 23 of the ICC Rules; such request for interim measures need not to be included in the Terms of Reference'.21
Thus, notwithstanding the unqualified reference to the 'relief sought by each party' in the enumeration of the Terms of Reference's requirements in Article 18(1)(c), ICC arbitrators have reasonably construed this provision as applying only to 'final relief'. Relief that is temporarily sought pending the arbitration is by its very nature linked to the claims already before the arbitrator and therefore should not be caught by Article 19.
B. New legal arguments
Article 19 refers only to new 'claims' and not new arguments. There should therefore not normally be an issue about whether a party's articulation of new legal arguments gives rise to a 'new claim' within the meaning of Article 19. Nevertheless, parties' claims are often formulated with reference to a specific set of facts and a related set of contractual and legal principles, which together form the basis for the relief that is being requested. Thus, a party's claim may be expressed as a claim for the breach of a contract or of a specific provision of a contract. Alternatively, a party may found a claim on a provision of applicable law. The question therefore arises from time to time as to whether a change in the contractual or legal basis for the relief being requested constitutes a 'new claim' within the meaning of Article 19.22
As a general rule, ICC arbitrators have been reluctant to characterize as new claims, amended or alternative claims for identical relief that are based on the same facts already asserted in the arbitration, but where the relief is being requested on an altered contractual or legal basis. The conventional view, which has since been followed in a number of ICC awards, was set forth in the final award of February 23, 1987 in an arbitration commenced in 1982 by the National Oil Corporation of Libya ('NOC') against Libyan Sun Oil Company ('Sun Oil') (ICC case 4462).23 In that case, NOC claimed compensation from Sun Oil for the cost of the uncompleted part of an oil exploration program in Libya under an Exploration and Production Sharing Agreement ('EPSA') between the parties. NOC's claim was initially based on a specific provision of that agreement applicable in the case of Sun Oil's withdrawal from the agreement. After the Terms of Reference had been finalized, NOC claimed, in the alternative, that if Sun Oil were not found to have withdrawn from the EPSA, then it had the right to claim the same costs under two other contractual provisions (articles 8.2 and 25.2) applicable in the case of breach by Sun Oil of its obligations. Sun Oil objected, however, that NOC's alternative claims were outside the scope of the arbitration because:
a) NOC initiated this case on the basis of one and only one claim-namely that Sun Oil has withdrawn from the EPSA. [Page62:]
b) Nowhere in the Terms of Reference is there any mention of either Art. 8.2 or 25.2.
c) NOC's new claims are plainly new substantative claims which are based on facts which occurred . . . after this arbitration commenced, and which, therefore, cannot possibly have included [sic] as part of NOC's original claim.24
The arbitral tribunal, however, rejected Sun Oil's argument in the following terms:
Such reasoning is not pertinent. Even in admitting that the initial claim of NOC was based only on the withdrawal question (which is not correct) it is doubtful that NOC's last claims constitute 'new' claims in the legal sense of the word. Of course, one might argue that these claims have different legal grounds than the 'withdrawal' basis . . . since they rely on . . . non-performance . . . and on a 'material breach' of the contractual obligations . . . However, one should recall on the one hand, that the facts which gave rise to the Request for Arbitration are the same as those on which NOC's last claim is based . . . and, on the other hand, that the purpose of the successive claims is also the same: in each case, NOC claims the payment of the costs of the uncompleted part of the exploration program.
The arbitral tribunal then went on to conclude that, even if NOC's additional claims were to be considered as 'new claims' distinct from the first one, there would exist between them 'a tight link' such as to place them 'within the limits' of the Terms of Reference.
Similarly, ICC tribunals in published extracts from several awards since that time have held that the 'mere altering of the legal basis for a claim . . . should not be considered modification of the said claim' for the purpose of Article 19 (previously Article 16).25 In a lengthy discussion of the subject contained in an award issued in Manama, Bahrain in March 2002 (ICC case 11195), a sole arbitrator considered whether, at an advanced stage of the arbitration (i.e. at the hearing), the Claimant could properly withdraw a claim of misrepresentation based on contract and press instead a claim for misrepresentation based on the tort of deceit. The Respondent objected that the Terms of Reference contained no reference to a claim of misrepresentation based on tort and that it therefore constituted a new claim outside the limits of the Terms of Reference. However, the sole arbitrator decided as follows:
At the hearing . . . Claimant definitively stated that it was now relying on the law of tort for its claim of misrepresentation and in its Post-Hearing Brief Claimant maintained the position by amending its Prayer for Relief to the extent that it was no longer pressing for rescission of the contract but only for restitution of its interest, as already presented under the claim of misrepresentation based on contract, as damages arising from misrepresentation based on tort. However, in making the claim of misrepresentation based on tort Claimant does not rely on any new facts. This matter is also taken note of in Respondent's Post-Hearing Brief . . . Nor does Claimant press for new remedies. Claimant is still seeking restitution of its interest as identified in item 1 of the Relief Sought in the TOR and in Prayer A of its Detailed Statement of Claim, however, now characterized as damages arising from fraudulent/negligent misrepresentation. In the Sole Arbitrator's view this action does not constitute a new claim but a new legal characterization of a claim already presented in the Terms of Reference. Nor has Claimant's assertion of a claim of misrepresentation based on tort led to the introduction of a new prayer for relief. . . . In any event, the presentation of the claim at the hearing is acceptable in view of the nature [Page63:] of the claim, its direct link with the claims and facts already presented and in view of the circumstances.26
Yet another ICC tribunal has stated, in even more absolute terms:
A claim is new and not within the limits of Art. 16 [now 19] ICC Rules only if it raises issues of fact and/or of law which are completely new compared with the issues in dispute so far. If, however, a claim is subsequently based on different legal reasoning, but still on the same facts, it is within the limits of Art. 16 ICC Rules.27
This approach has nevertheless not always been followed by ICC arbitrators, and one highly respected authority on the ICC Rules has singled out the reasoning in the foregoing award as 'going probably too far', although 'based on considerations of justice'.28
There have indeed been instances in which ICC arbitrators have found that the assertion of a 'claim' on a new legal basis is, contrary to the above, a new claim outside the limits of the Terms of Reference.29 This may occur where the claim is understood to include its legal basis, as articulated by the claiming party. Thus, for example, in an unpublished award rendered in Paris, an ICC tribunal concluded that, where a party had brought a claim for the minimum royalties allegedly due under a license agreement, the sums claimed as royalties could not alternatively be awarded as damages for breach by the licensee of its obligation to make the minimum sales required under the agreement.30 The tribunal took the position, which was subsequently upheld by the Paris Court of Appeal,31 that if it had awarded relief to the claimant on the basis of legal grounds other than those pleaded, its award would be ultra petita. Although there is no indication in the commentary on this decision that the claimant sought to amend its claim to obtain an award of damages, it would nevertheless arguably follow from the tribunal's reasoning that a claim for the same relief based on different legal grounds should be treated as a new claim.
This decision has been criticized on the basis that the legal foundation for a claim (the 'cause juridique' in French) should not be regarded as forming part of the claim itself.32 Indeed, it is generally accepted in certain court systems (as, for example, in Switzerland) that all points of law are within the sovereign determination of the court (jura novit curia) and that a party's claim is, thus, delimited by the facts pleaded and the relief requested, but not necessarily its legal characterization by the party advancing it.33[Page64:] It would follow as a matter of course, on such a view, that the invocation of a new legal basis for a claim should not normally be an obstacle to its acceptance under Article 19 of the ICC Rules.
In international arbitral proceedings, however, arbitrators should be wary of importing into the process doctrines developed for local judicial practice. They need, rather, to be attentive to considerations such as fairness and the expectation that the process will be conducted in a manner that will avoid surprise and, at the same time, be reasonably expeditious and efficient. Such considerations, more often than not, appear in practice to have militated in favor of the adoption by ICC arbitrators of a broad definition of 'claim' for the purpose of Article 19 or, alternatively, as discussed further below, a broad application of the discretion that they now enjoy under that provision (unlike under its predecessor, Article 16) to admit new claims in the proceedings unless this would be unduly disruptive.
C. New factual arguments
As in the case of new legal arguments, a new factual argument should not usually run afoul of Article 19 where there is no change in the relief being requested. However, where new facts are asserted as a basis for entirely new relief, then the claim would be likely to be regarded as a new claim. Thus, for example, an ICC tribunal refused to allow a new counterclaim where 'the Terms of Reference . . . [did] not even mention the facts giving rise to the counterclaim'.34 In yet another award, the tribunal held:
Quite obviously, the facts on which the Claimant's new claims are grounded are not covered by the summary of facts appearing in the Terms of Reference. Plaintiff's claims are connected either (a) to facts not evoked in the parties' briefs and submissions and, consequently, in the Terms of Reference, or (b) to events having occurred after the drafting, signing and formal approval of the Terms of Reference by the ICC International Court of Arbitration.35
In the latter case, the new facts alleged appear to have arisen primarily after the Terms of Reference were established and gave rise to claims for damages in addition to the damages already being sought in the arbitration. However, the additional damages appear to have been requested on the same contractual basis as those already being claimed, and the new facts and damages, in the claimant's view, were linked to the facts already asserted in the arbitration.
This decision has been criticized as unduly strict.36 Particularly where the dispute between the parties is likely to evolve after being submitted to arbitration, because of a continuing relationship between them or with third parties, it is possible that new facts will arise that may affect the relief being sought in the arbitration. It is at least arguable that additional relief requested in such circumstances does not give rise to a 'new claim', particularly where the additional relief is of the same kind as that already requested. In any event, there would not likely be much disagreement with the proposition that, in such circumstances, it would be in the parties' interest for all such [Page65:] additional disputes, to the extent that they are related, to be resolved in a single arbitration proceeding. Given the discretion that arbitrators now enjoy under Article 19, this can be achieved whether or not the claim is considered to be 'new' for the purposes of that rule.
D. Increase or modification of relief requested
In view of all that has already been said above, it should not come as a surprise that the issue of whether a claim is considered to be 'new' arises most frequently when there has been a change in the relief requested by a party. In this connection, it is necessary to distinguish among a number of different possible situations, e.g. where there is (i) an increase in the amount of a claim, (ii) some other change in the relief requested (e.g. a change in the currency of the claim), (iii) a new request for ancillary relief, such as interest, or (iv) an entirely new head of damages or form of relief, which may be based on either the same or different facts and legal arguments.
Changes in the quantification of the parties' claims in arbitration proceedings, as in judicial proceedings, are commonplace, for all sorts of reasons. Not only will a party often increase the amount of its claim during the arbitration, but in some cases a claim will not even be quantified until after the Terms of Reference have been established.
Some commentators have taken the position that a mere increase in the amount of a claim may be regarded as a 'new' claim within the meaning of Article 19.37 However, those ICC arbitrators that have considered the question have nearly always declined to adopt such a strict position, and there do not appear to be any reported decisions in which arbitrators have disallowed such an increase even if they considered the claim to be 'new'.38
On the contrary, in an earlier survey of ICC arbitral awards on this subject, all of the awards identified allowed the increases requested and most appear to have determined explicitly that the increase in question did not constitute a 'new claim'.39 This continues to be the position taken in awards more recently issued. Thus, in an award issued in Zurich in March 2002 (ICC case 10916), a sole arbitrator stated:
the mere increase in the damages sought pursuant to a claim based on facts that have been brought forward in due course-as done by Claimant several times with regard to its Prayer for Relief No. 2-is possible until the proceedings have been declared closed [Page66:] pursuant to Art. 22 ICC Rules . . . The latter situation does not implicate a case of Art. 19 ICC Rules . . .40
In yet another award rendered in Singapore in January 2002 (ICC case 10884), the tribunal acknowledged that the increase in the amount of a claim was 'arguably' a new claim within the meaning of Article 19, but went on to allow the increase:
since the increased amount continues to fall under the general head of 'expenditure' (see paragraph 22, Terms of Reference), and is therefore not a 'new claim' in that sense . . .41
An increase was also allowed in ICC case 10985 (December 2001), where the claimant originally claimed interest at an annual rate of 5% on the basis of German law, but then increased its interest claim to 7% per year on the basis that Belgian law should be applied. The claimant modified its position after the parties agreed in the Terms of Reference that Belgian law was the law applicable to the dispute. The tribunal determined that 'technically the increase in interest as claimed can be considered to be a "new claim"', but nevertheless had no difficulty authorizing the increase under Article 19 as it did not 'put an extra burden on the defense' and was 'the logical consequence from the shift to application of Belgian law'.42
Although the increase in that case was triggered by a change in the underlying legal position of the party making the claim, it can nevertheless be questioned whether the claim needed to be characterized as 'new'. Indeed, parties often do not even identify a rate for the interest being claimed at the stage of the Terms of Reference and otherwise propose alternative rates during the proceedings. As further discussed below, ICC tribunals in some cases have also been unwilling to characterize as a 'new' claim a claim for interest made for the first time after the Terms of Reference, on the basis that such a claim is incidental to the main claim in the arbitration.
Other changes, associated primarily with the presentation of a claim, may also, from time to time, give rise to an objection that a 'new claim' is being raised.
Thus, for example, in ICC case 10028, the respondent objected that, in presenting its method of calculating its claim for the first time after the Terms of Reference were established, the claimant was introducing a new claim outside the limits of the Terms of Reference. In an award issued in September 2002, the tribunal disagreed, noting that the amount of the claim had not changed and that the only new element was the method of calculation.43
Meanwhile, in at least two relatively old reported ICC awards, tribunals took the view that a party's requantification of a claim in a different currency from the one originally applied constituted a new claim. Thus, in ICC case 6204, the Tribunal decided:
There is no doubt possible with respect to the qualification of 'new claim'. A claim of UAE Dirham or German Mark is different from a Jordanian Dinar claim since the currencies have-as the present issue illustrates-different strengths and risks and different laws [Page67:] may be applicable. The original claim of JD 3,937,013,692 represents approximately a value of UAE Dirham 26,771,690 if the exchange rate of JD 100/UAE Dirham 6.80 is used. The application aims at a reevaluation of the claim originally made by 57% to UAE Dirham 42,047,306.23. It is obvious that the claim as amended in the application is different both as to its nature (currency) and its quantum.44
In so finding, the tribunal's conception of what constitutes a 'new claim' mirrored that of a tribunal that many years before had adopted a similar approach where a party restated in Swiss francs a claim originally made in US dollars.45
Although those decisions have been explained on the basis that, in such cases, in addition to modifying the amount of the claim, 'the claimant must provide the arbitral tribunal with a specific new legal argumentation,' and this 'seems to be sufficient to consider that a new claim is adduced,'46 they nevertheless appear out of step with the less rigid conception of a 'new claim' that is reflected in most of the other decisions reviewed herein. Indeed, the requantification of a claim, or its quantification for the first time after the Terms of Reference, as is commonplace, may often raise new issues. However, as has been discussed, Article 19 is not intended to bar the introduction in the arbitration of new issues. It is, moreover, difficult to see why the requantification in a different currency of a claim already made should be characterized as a new claim when a claim that has not been quantified at all at the beginning of the arbitration is not, as discussed above, generally so regarded upon its quantification.47
In nearly all arbitrations, there will be claims that are ancillary to, and dependent upon, the main claims of the parties. A notable example is a claim for interest. Where such a claim is asserted for the first time after the Terms of Reference have been established, the question inevitably arises as to whether it constitutes a new claim within the meaning of Article 19.
In at least three instances since the ICC Rules were revised in 1998, this issue has arisen, and in all three cases the tribunal has allowed the interest claim to be made, in two cases because the claim was not regarded as a new claim outside the limits of the Terms of Reference and in the third because the tribunal decided to authorize it. In the first of those cases (ICC case 10007), the tribunal provided the following explanation for its conclusion that the interest claim did not constitute a 'new claim':
The concept of 'new claims' is not defined in the ICC Rules and the issue of interest on a damages claim is not specifically addressed by the commentators of the ICC Rules. Therefore the Arbitral Tribunal should first determine:
(i) whether Claimants' claim for interest is to be considered as a 'new claim' within the meaning of Article 19 of the ICC Rules; and
(ii) whether such claim is outside the scope of the Terms of Reference. [Page68:]
An analysis of the ICC case law shows that an increase in the amount of a claim after the signing of the Terms of Reference is usually accepted by arbitrators, who do not consider that it constitutes a new claim.
One can therefore submit that, in view of its true nature, which is entirely linked to the main claim for damages, a claim for interest should not be considered as a 'new claim' under Article 19 of the ICC Rules. This is simply a way to supplement the main claim, as a sort of increase of the amount in dispute and no difficulties would therefore arise in the light of Article 19 of the ICC Rules.
Such claim for interest should consequently be admitted even when it is submitted at a late stage during the proceedings, provided that the main claim for damages has been filed before the signing of the Terms of Reference as is the case here.48
Having so decided, the tribunal need not have said anything more. However, it nevertheless then proceeded to explain why, in its view, the interest claim also did not fall outside the limits of the Terms of Reference:
Regarding the question whether the claim for interest falls outside the limits of the Terms of Reference, it should be noted that interest has not been mentioned in the Terms of Reference among the specific issues to be determined by the Arbitral Tribunal. Yet Respondent, for its part, sought interest in its prayer for relief and such relief could have been mentioned in the Terms of Reference as an issue to be considered. The fact that interest has not been addressed in the Terms of Reference is due to the understanding of the Arbitral Tribunal that such an issue is encompassed by the main issues to be decided, that is claims for damages, which have been mentioned in the Terms of Reference.
Commentators point out that some arbitrators have broadly construed the scope of the Terms of Reference so as to include new claims which were in connection with the main claims already filed.
It is therefore the Arbitral Tribunal's conclusion that a claim for interest does not fall outside the limits of the Terms of Reference.49
A similar approach was adopted in a second case (ICC case 11424): 'the claim for interest is an incidental claim directly linked with the principal claim. Therefore it cannot be considered as a new claim falling outside the limits of the Terms of Reference.'50 However, for a third tribunal (ICC case 10578): 'Even if an interest claim is an ancillary claim to the principal monetary claims, it is still a separate request for relief and may as such be considered as a new claim within the meaning of Article 19 of the ICC Rules.'51 The tribunal nevertheless decided to allow the claim in the exercise of its discretion under Article 19, 'having due regard to the ancillary nature of the claim and the reaction of [Respondent] to the claim . . .'
In the absence of a definition of 'new claim' in the ICC Rules, neither of these approaches can reasonably be criticized. In either case, the arbitrators quite properly considered that, even if asserted late, a claim for interest should not ordinarily be excluded from the arbitration on the basis of Article 19. [Page69:]
In all of the cases considered above, the 'newness' of the claim in question could reasonably be doubted. However, in many cases there will be no doubt that the claim is new (e.g. when an entirely new prayer for relief is added), and the question that will then arise, as in some of the cases already discussed above, is whether the new claim nevertheless falls within 'the limits of the Terms of Reference'. If so, the tribunal's authorization is not required under Article 19.
As has already been mentioned, under Article 16 of the previous version of the Rules, new claims falling outside the limits of the Terms of Reference could not be included in the arbitration without the other party's consent. The harsh consequences of this rule encouraged many ICC arbitrators to construe broadly the phrase 'within the limits fixed by the Terms of Reference', as used in Article 16. All that usually sufficed for a new claim to come within the prescribed limits was a sufficient 'link' between the new claim and the original claim or claims.52 Ordinarily, a sufficient link would be found where the new claim arose out of the same transaction and the facts already described in the Terms of Reference. In addition, arbitrators would assess the sufficiency of the link with reference to 'the interest of good justice' to decide the claims together.53 Typical of the reasoning of many tribunals was the following decision of the arbitrators in ICC case 6197:
The claimant requests the payment by the defendant of the equivalent value in the currency of country B of [an amount], as reimbursement of the sum which it had to pay to the subcontractor following the substitution of the three-phase sedimentation tank by a two-phase system. The arbitral tribunal notes that this constitutes a new claim in the sense of Art. 16 of the ICC Rules, because it is not explicitly mentioned in the Terms of Reference. However, the arbitral tribunal believes that this claim is within the limits of the Terms of Reference because there is a sufficient connection between the original claims by the claimant and the new claim submitted by it . . .
As a matter of fact, in the request for arbitration, the claimant stated the poor functioning of the installation was caused by, among other things, the substitution by the defendant of the three-phase sedimentation tank by a two-phase system. The new claim of the claimant does concern this substitution, since the claimant is requesting that the defendant pay it an amount representing the difference between the cost of the two-phase sedimentation tank system and that of the three-phase system, plus the costs of the operation because according to the claimant, this operation should have been done without changing the price of the installation.
In view of the above considerations, it must be allowed that this new request falls within the limits of the Terms of Reference. . .
In the opinion of the arbitral tribunal, a party must be in position to assert in an arbitral proceeding all new facts which belong to the complex of facts underlying the request for arbitration, a solution which is ruled by the general principles of procedure which apply before any tribunal . . .54[Page70:]
As can be seen, in seeking to place the new claim 'within the limits' of the Terms of Reference, the tribunal in the above case was, in large measure, motivated by the understandable concern that related disputes arising out of the same transaction should be permitted to be resolved in a single proceeding where that would not be unduly disruptive to the process. However, such an approach, no matter how well-intentioned, arguably went beyond the four corners of Article 16. As ICC arbitrators now have discretion to authorize new claims under Article 19, irrespective of whether they fall outside the limits of the Terms of Reference, this may have the effect of moderating their inclination to construe as broadly as they once did the Terms of Reference's 'limits'.
From the more recent arbitral awards surveyed during the preparation of this article, it is not possible to say, however, that this is, in fact, the case. In reliance on earlier reported decisions, ICC arbitrators still often appear to apply a relatively expansive interpretation of the reference in Article 19 to 'the limits of' the Terms of Reference when deciding to allow new claims in the arbitration.55
E. Set-off claims
Because Article 19 refers only to new 'claims and counterclaims' and not to additions to the parties' defenses, a further question that occasionally arises is whether that provision imposes any restriction on the introduction of new 'set-off' claims after the establishment of the Terms of Reference. Indeed, a 'set-off' is regarded as a defense and not a claim in many jurisdictions.56
Thus, ICC arbitrators refused in certain cases arising under Article 16 of the prior version of the ICC Rules to apply that provision to set-offs. For example, in an award rendered in 1991 in ICC case 6223, the tribunal, relying on Articles 70 and 564 of the French New Code of Civil Procedure, refused to characterize as a claim under Article 16 an assertion of damages that the respondent requested the tribunal to set-off against the respondent's alleged indebtedness to the claimant.57
This position has been criticized. As stated by one commentator:
given the purpose of the Terms of Reference, there is no reason to distinguish between a new counterclaim and a set-off claim. A set-off claim entails as much risk of extension and delay as a counterclaim and raises the same issues as if the party claimed an award obliging the adverse party to pay the sum concerned.58
However, as already noted, the tardy submission of a new defense at a late stage of an arbitration may have just as much disruptive potential as the introduction of a new claim. Thus, the mere fact that a set-off may also have this effect does not necessarily suffice for it to be treated as a claim for the purpose of Article 19. [Page71:]
In any event, when the ICC Rules were amended in 1998, the ICC did not undertake to resolve the controversy concerning the proper treatment of set-offs in relation to what is now Article 19. ICC arbitrators can therefore be expected to continue to adopt differing positions as to whether Article 19 is applicable in such cases, although they must always satisfy themselves, irrespective of whether a set-off is characterized as a claim or as a defense, that they have jurisdiction over the set-off claim to begin with.59 It is nevertheless noteworthy that in at least one case in which the issue arose under the present ICC Rules, the tribunal, sitting in Frankfurt, took the view that the respondent's 'set-off constitutes a counterclaim for purposes of Article 19'.60 Without questioning its competence to consider the set-off, the tribunal then proceeded to deny the respondent permission to assert the set-off in the arbitration, for the following reasons:
[Respondent] indicated at the time the Terms of Reference were signed that it wished to reserve the right to assert a set-off in the future against any amounts owing to [Claimant]. During the course of the present arbitral proceedings facts developed that led [Respondent] to assert a set-off . . . The Tribunal was presented with facts and documents bearing on [Respondent's] set-off claim thereafter during the course of the arbitration.
Neither party made any significant submissions concerning [Respondent]'s set-off claim. [Respondent]'s evidence in support of the claim consisted almost entirely of a letter drafted by its counsel asserting the set-off, and a number of attached invoices. [Claimant]'s response to the claim consisted almost entirely of a letter by its counsel responding to [Respondent]'s letter. Neither party adduced witness testimony concerning the set-off.
The factual and legal bases for [Respondent]'s set-off are dissimilar to Claimant's primary and alternative claims and to [Respondent]'s retention claim. The set-off depends upon [Respondent]'s right to payment for a variety of goods provided and services rendered. In order for the Tribunal fairly to decide this claim, it would be obliged to further delay the making of this award, in order to hear new evidence and argument. Given the date on which the set-off was asserted and submitted to the Tribunal, and the dissimilarity between the set-off and the other matters at issue in this arbitration, the Tribunal declines to consider the set-off claim in the present arbitration. [Respondent] remains free to pursue that claim by other means.
IV. Exercise of discretion under Article 19
The award just considered provides a typical example of the manner in which an ICC arbitral tribunal may exercise its discretion under Article 19 either to allow or disallow a new claim falling outside the limits of the Terms of Reference. Article 19 directs the tribunal, in deciding whether to authorize a new claim, to 'consider the nature of such new claims or counterclaims, the stage of the arbitration and other relevant circumstances'. In fact, as can be seen from the above decision, two considerations, in particular, generally weigh most heavily in the tribunal's determination: (i) the wish to avoid undue delay to the arbitration; and (ii) the obligation of the arbitrators, as set forth in Article 15 of the ICC Rules, to act fairly and impartially. [Page72:]
In this regard, ICC tribunals often undertake to balance the potential disruptive effect of a late new claim against the possible desirability of resolving all of the related disputes in a single proceeding, thus avoiding possible additional arbitrations.61 But they will generally also consider the reasons why the claim was not raised earlier (including whether their late submission was abusive and intended merely to delay the arbitration) as well as the other party's ability to address the new claim without causing undue delay.62 Indeed, a party's delay in raising a claim, if allowed, may affect the basic fairness of the arbitration. As noted by one tribunal:
To permit Respondents to ignore proceedings and then ask for more hearings would be grossly unfair to the other parties. The ICC Rules . . . are . . . premised on fairness to all parties. The most elementary notions of due process require that arbitrators show respect for the rights of both sides in a dispute. A respondent cannot ignore an arbitration until the last moment, and then expect to be permitted to file new counterclaims that require the other side to begin again almost at ground zero.63
Of course, the tribunal will also always wish to satisfy itself that it has jurisdiction over any additional claims that a party wishes to introduce in the proceedings.
Article 19 has been criticized for not articulating more specific, objective criteria for the exercise of the tribunal's discretion.64 However, such criteria would undoubtedly be difficult to develop, given that the tribunal's decision will always depend upon the specific circumstances of a particular case and their subjective appreciation by the tribunal. Nor are arbitrators likely to find much guidance in applicable arbitration legislation, which should not ordinarily impose any restriction on the discretion that they enjoy under Article 19, apart from their normal duty to conduct the proceedings fairly and impartially.65
Contrary to such criticisms, the greater difficulty with Article 19 lies not in the discretion that it allows the tribunal, but rather, because of the ambiguity of the reference to 'new' claims 'fall[ing] outside the limits' of the Terms of Reference, its failure to delimit as clearly as it might the circumstances in which such discretion arises.
V. Conclusions/practical recommendations
A few words of advice to the parties, the arbitrators and, lastly, the ICC, prompted by the above review of Article 19 and its application, may be offered as a way of concluding. [Page73:]
As regards the parties, it is not unusual for the presentation of a party's case to evolve during the course of an arbitration, for any number of reasons. Indeed, when the arbitration commences, all of the relevant facts may not yet be known to, or sufficiently assimilated by, the parties' counsel, the dispute may arise in the context of an ongoing relationship, or counsel may not yet have had an adequate opportunity to consider all of the relevant legal issues, particularly when unfamiliar laws are involved.
When the Terms of Reference are being drawn up, it is therefore important for parties to bear in mind the provisions of Article 19 and endeavor to ensure that the nature of their claims is described as comprehensively as possible. However, there is no need for the description of individual claims to be overly detailed. On the contrary, as one commentator has observed: 'The briefer the summary and the shorter the list of issues (e.g. "Does the defendant owe claimant the sum of X . . . ?"), the more new claims are likely to remain within the limits [of the] Terms of Reference.'66
An issue that sometimes arises is whether and, if so, to what extent parties may reserve the right to make new claims after the Terms of Reference have been established. However, unilateral and unlimited reservations to bring new claims after the preparation of the Terms of Reference would undermine the purpose of Article 19 and are, thus, not ordinarily permitted by ICC tribunals, without an accompanying reference to Article 19. As stated by one tribunal:
the Tribunal cannot accept that a general reservation of right to present claims and/or counterclaims at some future date constitutes a valid counterclaim for the purposes of Article 19 of the ICC Rules. Were this so, Article 19 would become a dead letter. Parties would routinely make blanket reservations for future claims and counterclaims . . .67
While, in the past, ICC tribunals may have occasionally allowed reservations to be made as a means of moderating the otherwise harsh effects of Article 16 in the prior version of the Rules,68 the discretion that the arbitrators now enjoy to authorize new claims, where appropriate, should no longer leave much place for such a practice, except possibly where the parties agree.
Having said this, as has already been noted, arbitrators in ICC proceedings must always remain alert to the possibility, when reviewing the parties' submissions subsequent to the Terms of Reference, that they may include new claims requiring the arbitrators' authorization under Article 19. Although a party's failure to object to a new claim of the other party requiring authorization may constitute a waiver of any subsequent objection to the tribunal's award under Article 33 of the ICC Rules, any dispute as to this can be avoided by the proper application of Article 19. Moreover, if the tribunal has any doubt as to whether there may be a new claim outside the limits of the Terms of Reference, which the tribunal nevertheless considers it appropriate to allow, it will normally be prudent for that claim to be authorized expressly under Article 19. However, where, in [Page74:] a case of doubt, the tribunal decides to disallow the claim, Article 19 regrettably carries with it the risk that the award may subsequently be challenged.69
This prompts a final word of advice to the ICC: While Article 19 has introduced welcome flexibility in relation to the possible introduction of new claims in ICC arbitration, it might nevertheless in the future be improved by replacing the reference to claims falling 'outside the limits of' the Terms of Reference with a reference to claims 'not described in' the Terms of Reference. Given that arbitrators now have the authority to allow new claims whether or not they fall outside such 'limits,' there would seem little reason to allow Article 19 to continue to be encumbered by obscure language upon which, as discussed above, arbitrators no longer need to rely and that may, in certain circumstances, increase an award's vulnerability.
1 See e.g. the extracts from the ICC awards in this publication; M.W. Bühler & T.H. Webster, Handbook of ICC Arbitration (Sweet & Maxwell, 2005) at 243-47; Y. Derains & E.A. Schwartz, A Guide to the ICC Rules of Arbitration, 2d ed. (Kluwer Law International, 2005) at 266-70; J.-F. Poudret & S. Besson, Droit comparé de l'arbitrage international (Schulthess, 2002) at 523-25; W.L. Craig, W.W. Park & J. Paulsson , International Chamber of Commerce Arbitration, 3d ed. (Oceana/ICC Publishing, 2000) at 278-81; E. Gaillard & J. Savage, eds., Fouchard, Gaillard, Goldman On International Commercial Arbitration (Kluwer Law International, 1999) at 669-71; M.E. Schneider, 'The Terms of Reference' in The New 1998 ICC Rules of Arbitration, ICC ICArb. Bull. Special Supplement (ICC Publishing, 1997) 26. See also the discussion of Article 19's predecessor provision, Article 16 of the 1988 version of the ICC Rules, in A. Reiner, 'Terms of Reference: the function of the International Court of Arbitration and application of Article 16 by the arbitrators' (1996) 7:2 ICC ICArb. Bull. 59.
2 1955 Rules, Article 21(6); 1975 and 1988 Rules, Article 16.
3 See Y. Derains & E.A. Schwartz, supra note 1 at 268.
4 See the 'Practical Guide' on the Terms of Reference under the 1988 ICC Arbitration Rules, issued by a Working Group (chaired by S. Lazareff) of the ICC Commission on International Arbitration in 1992 (hereinafter 'Practical Guide'), (1992) 3:1 ICC ICArb. Bull. 24 at 27. See also S. Lazareff & E. Schäfer, 'The 1992 Practical Guide on Terms of Reference Revisited,' (1999) 10:2 ICC ICArb. Bull. 14.
5 See Y. Derains & E.A. Schwartz, supra note 1 at 267.
6 See e.g. the UNCITRAL Arbitration Rules (Article 20), the AAA International Arbitration Rules (Article 4), the LCIA Arbitration Rules (Article 22), the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (Article 22), the Swiss Rules of International Arbitration (Article 20), the WIPO Arbitration Rules (Article 44).
7 See e.g. the UNCITRAL Model Law on International Commercial Arbitration, Article 23(2).
8 See, in relation to this distinction, Y. Derains, 'Amendments to the Claims and New Claims: Where to Draw the Line?' in Arbitral Procedure at the Dawn of the New Millennium (Bruylant 2005) 65.
9 It has, however, been suggested that the due process issues raised by a new defense, as opposed to a new claim, are of a different character. See e.g. M.W. Bühler & T.H. Webster, supra note 1 at 245-46, footnote 137, referring to the decision of a US federal district court in the case of Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 190 F. Supp. 2d 936 (D. Tex. 2001).
10 Article 15(2).
11 See M.W. Bühler & T.H. Webster, supra note 1 at 243: 'There must be a point in time when the parties can no longer present new claims, so that the arbitration can be brought to its end.'
12 See e.g. CBS Corporation et al. v. WAK Orient Power & Light Ltd., 168 F. Supp. 2d 403 (E.D. Pa. 2001); but see P. Schweizer, Note on the Swiss Federal Tribunal judgment of 19 April 1994, Westland Helicopters Limited v. The Arab British Helicopter Company, [1995] ASA Bulletin 191 at 195.
13 M.E. Schneider, supra note 1 at 31.
14 A. Reiner, supra note 1 at 59.
15 The separate references in Article 18(c)(1) to 'claims' and 'relief' have thus prompted speculation that the former refers only to the 'justification' for the claims. See Fouchard, Gaillard, Goldman on International Commercial Arbitration, supra note 1 at 671. It is doubtful that this was intended.
16 See e.g. Black's Law Dictionary, 6th ed. (West, 1990), which defines a 'claim' as a 'cause of action', which in turn is defined as 'the fact or facts which give a person a right to judicial redress or relief against another'.
17 For a discussion of the meaning of such terms in a French and Swiss context, see F. Perret, 'Les conclusions et les chefs de demandes dans l'arbitrage international' [1996] ASA Bulletin 7; J.-F. Poudret & S. Besson, supra note 1 at 521.
18 According to A. Reiner, supra note 1 at 65, the 'vast majority of arbitrators' prior to 1996 construed Article 16, the predecessor of Article 19, autonomously, i.e. without reference to national law. This appears still to be the case, based on the more recent awards examined for the purpose of this article.
19 Partial award in ICC case 4126, S. Jarvin & Y. Derains, Collection of ICC Arbitral Awards 1974-1985 (Kluwer Law & Taxation, 1990) 511.
20 S. Jarvin, Comment, supra note 19 at 514 (translation from French). See also A. Reiner, supra note 1 at 66.
21 Award in ICC case 11405 (2002). See extract at p. 96 below.
22 See e.g. M.W. Bühler & T.H. Webster, supra note 1 at 233: 'Most ICC arbitrations revolve around allegations of breach of contract and one view is that each allegation of breach of contract is a separate claim. Therefore, if a party claims that the other has breached three provisions of a contract, but then wishes to amend that argument to allege a breach of a fourth provision of a contract or make a claim in tort, then the claim may amount to a new claim.' As discussed herein, however, this appears to be a minority view, based on the practice of ICC arbitrators.
23 See J.-J. Arnaldez, Y. Derains & D. Hascher, Collection of ICC Arbitral Awards 1991-1995 (Kluwer Law International/ICC Publishing, 1997) 3.
24 Ibid. at 20.
25 Award in ICC case 6919, as quoted in A. Reiner, supra note 1 at 66. See also the awards in ICC cases 5648 and 6618, as described by Reiner, ibid.
26 See extract from award at p. 88 below. For an earlier decision to the same effect concerning the recharacterization of a contract claim as a tort claim, see the extract from the award in ICC case 6618, (1997) 8:2 ICC ICArb. Bull. 70. See also, as recent examples of additional cases where the tribunal accepted the legal recharacterization of claims after the Terms of Reference, the extracts from the awards in ICC cases 11045 and 11462 at pp. 86 and 99 below.
27 Extract from award in ICC case 7047, J.-J. Arnaldez, Y. Derains & D. Hascher, Collection of ICC Arbitral Awards 1996-2000 (Kluwer Law International/ICC Publishing, 2003) 32 at 36.
28 Y. Derains, supra note 8 at 69.
29 See e.g. the award in ICC case 6309, J.-J. Arnaldez, Y. Derains & D. Hascher, Collection of ICC Arbitral Awards 1991-1995 (Kluwer Law International/ICC Publishing, 1997) 401, at 403, which is cited with apparent approval in Fouchard, Gaillard, Goldman on International Commercial Arbitration, supra note 1 at 671: 'where the nature of the right in respect of which redress is sought is different' the suggestion that this does not constitute a new claim is questionable. See also A. Reiner, supra note 1 at 66, footnotes 6 and 7.
30 See e.g. the ICC award described in F. Perret, supra note 17 at 12-16.
31 Unpublished decision of 14 October 1993, as discussed in F. Perret, supra note 17 at 12-13.
32 F. Perret, supra note 17 at 14.
33 See e.g. J.-F. Poudret & S. Besson, supra note 1 at 521; G. Petrochilos, Procedural Law in International Arbitration (Oxford University Press, 2004) at 146. See also on the subject of jura novit curia, G. Kaufmann-Kohler, 'Iura novit arbiter-est-ce bien raisonnable ?' De Lege Ferenda, Réflexions sur le droit désirable en l'honneur du Professeur Alain Hirsch (Slatkine, 2004) 71.
34 Extract from award in ICC case 6647, (1997) 8:2 ICC ICArb. Bull. 71.
35 Unpublished award, as quoted by F. Perret, supra note 17 at 17.
36 Ibid. at 18-19.
37 See e.g. Fouchard, Gaillard, Goldman On International Commercial Arbitration, supra note 1 at 670-71: 'The suggestion that a request for a different amount of damages does not constitute a new claim is questionable.'
38 Most commentators also consider that, where the amount of a claim is increased, without a change in the factual or legal basis for the claim, the increased claim should not be regarded as 'new'. See Y. Derains, supra note 8 at 68: 'when both the facts and the legal argumentation relied upon remained unaffected, but only the amount claimed is changed, the claim is still the same, although it is amended. The fact that quantifying a claim during the course of the proceedings has never been treated as introducing a new claim confirms this conclusion.' See also S. Lazareff, 'Terms of Reference' (2006) 17:1 ICC ICArb. Bull. 21 at 25: 'a change in the amount claimed does not affect the nature of the claim and does not come within the scope of Article 19'; W.L. Craig, W.W. Park & J. Paulsson, supra note 1 at 279: 'new quantification of damages does not constitute a new claim'.
39 See A. Reiner, supra note 1 at 66-67 and, in particular, the awards cited in ICC cases 5411, 6097, 6763, 7076, 7108, 7210, 7213 and 8268 ('The further quantification of the same claim will not be considered a new claim in the sense of Article 16 of the ICC Rules.'). See also the award in ICC case 7453, J.-J. Arnaldez, Y. Derains & D. Hascher, Collection of ICC Arbitral Awards 1996-2000 (Kluwer Law International/ICC Publishing, 2003) 94 (quoting W.L. Craig, W.W. Park & J. Paulsson-'new quantification of damages does not constitute a new claim'-see supra note 38).
40 See extract from award at p. 83 below.
41 See extract from award at p. 83 below.
42 See extract from award at p. 85 below.
43 See extract from award at p. 76 below.
44 See extract from award (1991) in Reiner, supra note 1 at 67
45 Award in ICC case 2375 (1975), S. Jarvin & Y. Derains, Collection of ICC Arbitral Awards 1974-1985 (Kluwer Law & Taxation, 1990) 257 at 261-62.
46 Y. Derains, supra note 8 at 69
47 See also 'Practical Guide', supra note 4 at 40, where reference is made to an unpublished award in which the arbitral tribunal held that a change in the currency in which payment was requested constituted a new claim, but that such new claim nevertheless remained within the limits fixed by the Terms of Reference. Insofar as such a change is characterized as a new claim, there would seem to be little basis for finding that it is outside the limits of the Terms of Reference.
48 Extract from final award of June 2000. See extract at p. 75 below. Footnotes omitted.
49 Ibid. Footnote omitted.
50 Final award of September 2002. See extract at p. 97 below.
51 Final award of April 2001. See extract at p. 78 below. It is to be noted that, even if, as stated above, interest constitutes a separate request for relief, it has not been the practice of the ICC International Court of Arbitration to include claims for interest in the amount in dispute when calculating the advance on costs for the arbitration, except possibly where the amount of interest sought is quantified or when interest is the principal subject of the claim or otherwise represents a substantial part of the amount at stake in the arbitration. See Y. Derains & E.A. Schwartz, supra note 1 at 338.
52 See A. Reiner, supra note 1 at 69 and the awards in ICC cases 4462, 5261, 5430, 6170, 6197, 6266, 7213, 7709 and 7810 referred to therein.
53 Ibid. The indulgence of arbitrators in this regard has not ordinarily extended, however, to counterclaims being asserted for the first time after the establishment of the Terms of Reference. See A. Reiner, supra note 1 at 67-68.
54 Final award of 1995, J.-J. Arnaldez, Y. Derains & D. Hascher, Collection of ICC Arbitral Awards 1996-2000 (Kluwer Law International/ICC Publishing, 2003) 164 at 178-79.
55 See e.g. the final awards in ICC cases 10007, 10916, 11673 and 11862, of which extracts appear at pp. 75, 83, 101 and 102 below.
56 See K.P. Berger, 'Set-Off in International Economic Arbitration' (1999) 15:1 Arbitration International 53; J.-F. Poudret & S. Besson, supra note 1 at 289. But see. Article 30(5) of the ICC Rules, which provides: 'If one of the parties claims a right to a set-off with regard to either claims or counterclaims, such set-off shall be taken into account in determining the advance to cover the costs of arbitration in the same way as a separate claim insofar as it may require the Arbitral Tribunal to consider additional matters.'
57 (1997) 8:2 ICC ICArb. Bull. 69. See also, to the same effect, the award rendered in 1992 in ICC case 6673, Collection of ICC Arbitral Awards 1991-1995 (Kluwer Law International/ICC Publishing, 1997) 429.
58 A. Reiner, supra note 1 at 68. See also 'Practical Guide', supra note 4 at 40, which includes 'set-off claims' in the claims covered by then Article 16, and M.W. Bühler & T.H. Webster, supra note 1 at 235: 'Claims by way of set-off are generally viewed as counterclaims under the ICC Rules.'
59 In fact, it is not uncommon in practice that parties seek to obtain set-offs in respect of claims as to which the arbitral tribunal is not competent. See J.-F. Poudret & S. Besson, supra note 1 at 289ff.
60 Final award of October 2000 in ICC case 10188. See extract at p. 77 below.
61 See e.g. at pp. 81 and 93 below, the awards in cases 10660 ('Having regard to the desirability of dealing with all disputes between the parties in a single arbitration . . .) and 11365 (translation from French: 'there is a real interest in examining [the claims] together').
62 See e.g. at p. 81 below, ICC case 10660, where the arbitrator stated that 'the most important consideration was whether [Claimant] was in a position adequately to contest the allegations made against it'. See also M.W. Bühler & T.H. Webster, supra note 1 at 247: 'If the new claim is filed at a time that allows the other side to respond to it without seriously delaying the timetable that was previously agreed, there would be no reason not to admit it, even if such claim could have been submitted before.'
63 See, at p. 78 below, final award of August 2001 in ICC case 10621. See also, at p. 94 below, the award in case no. 11367: 'the second request is not admissible, since such request could and should have been presented at the outset of the procedure and included in the Terms of Reference'. See also the award in ICC case 5514, as discussed by A. Reiner, supra note 1 at 67.
64 J.-F. Poudret & S. Besson, supra note 1 at 523.
65 See e.g. Article 23(2) of the UNCITRAL Model Law on International Commercial Arbitration, which provides: 'Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it.'
66 A. Reiner, supra note 1 at 70. But see M.W. Bühler & T.H. Webster, supra note 1 at 234, who recommend that the Terms of Reference provide various details (such as whether the claims are in contract or tort or delict, the basis for making a claim in a particular currency and the basis for and amount of any interest claim) that may subsequently provide a basis for a party to argue, in the event of a subsequent change, that a new claim is being made.
67 Final award of August 2001 in ICC case 10621 at p. 78 below. See also award in ICC case 7709, as discussed in A. Reiner, supra note 1 at 70-71: 'A's reservation is in too broad terms, and it would be against the trend of decisions and opinions issued in connection with this procedure to admit that a party may unilaterally, by such a wide reservation, extend the scope of this arbitration procedure.'
68 See e.g. the examples discussed in A. Reiner, supra note 1 at 70. In most cases where reservations have been allowed, however, they have been subject to conditions accepted by the parties. See e.g. award in ICC case 7314, (1997) 8:2 ICC ICArb. Bull. 72.
69 Indeed, insofar as the claim can be shown to fall within the limits of the Terms of Reference, the award could, in such case, be considered to be infra petita and subject to challenge on the basis that the arbitral tribunal did not comply with the agreed arbitral procedure (e.g. UNCITRAL Model Law on International Commercial Arbitration, Art. 34(2)). See also e.g. Fouchard, Gaillard, Goldman On International Commercial Arbitration, supra note 1 at 938-40.