Modification des moyens de droit et nouvelle demande/ Acte de mission/ Art. 16 du Règlement/ Résiliation abusive/ Remplacement d'un moyen fondé sur la responsabilité contractuelle (« breach of contract ») par un moyen fondé sur la responsabilité civile délictuelle (« tortious interference »)/ Limites fixées par l'acte de mission respectées.

'It must be determined next whether the tort claim was also within the specific Terms of Reference in this case. Terms of Reference have as one of their principal purposes the definition of the issues between the parties, so that the tribunal shall know with precision the nature and bounds of what it must determine. In the process, each party receives fair notice of the matters it will be called upon to address.

Arbitration is the product not of an act of government establishing a court of general jurisdiction open to determine disputes generally, but of the agreement of two particular private parties who voluntarily constitute a special and unique body with the authority, delegated by them through an act of contract, to determine the matter between them. The Terms of Reference to which those parties agree thus constitute a private law between them, defining what the arbitral panel is to decide. For this reason, it is important that the statement of a claim in the Terms of Reference precisely reflect the scope of the demands of each party. No new claim or counterclaim outside the limits fixed in the Terms of Reference may be made during the proceedings, in the absence of a formal amendment to the Terms of Reference signed by the parties. Article 16 of the ICC Rules provides:

"The parties may make new claims or counterclaims before the arbitrator on condition that these remain within the limits fixed by the Terms of Reference provided for in Article 13 or that they are specified in a rider to that document, signed by the parties and communicated to the Court."

The thrust of Article 16 is to proscribe the adding of new claims outside the Terms of Reference, not the making of new arguments in support of claims set forth in the Terms of Reference. Where a party seeks to add new claims not within the scope of the Terms of Reference, the tribunal has an obligation to reject them; it has no authority or jurisdiction to pass on claims not expressly or implicitly covered by the Terms of Reference.

In this instance, in the "Summary of the Parties' Claims" in the Terms of Reference, the Claimant put forward the following:

"4. Termination of Log Marketing Agreement: Defendant illegally terminated the May, 1987 Log Marketing Agreement and failed to refer customer inquiries to Claimant during the 90day termination notice period."

And "Under Issues to be Determined," the Terms of Reference stipulated the following:

"A. Did Defendant lawfully terminate the May, 1987 Log Marketing Agreement with Claimant pursuant to paragraph 9.4 of the Agreement?"

"B. Did Defendant owe Claimant any obligations after the notice of termination of the Agreement? If so, has Defendant failed to fulfill any such obligations?"

"C. To what relief, if any, is each party entitled for any violations of the Agreement or of any posttermination obligation?"

The Claimant's position as set forth in the Terms of Reference, then, is not explicitly limited to a breach of contract claim; the allegation is that the termination was "illegal." This is broad enough to reach illegality sounding in either tort or contract, either ex lege or ex contractus. By the same token, the Terms of Reference directed the tribunal to determine whether the termination was "lawful"; here again, there is nothing which restricts that issue to the question whether the termination was to be measured solely against the provisions of the contract itself as opposed to an affront to the standards of behavior laid down in the tort doctrine.

In sum, the interference claim is within the Terms of Reference, and hence within the jurisdiction of this tribunal.'