W(h)ither Institutional Terms of Reference?

Abstract

Although Terms of Reference (‘ToR’) have been a longstanding and distinctive feature of the International Chamber of Commerce (ICC) Rules of Arbitration for almost a century, their continuing relevance and necessity warrant scrutiny, considering the radical evolution of international arbitration in recent years. The introduction of sophisticated procedural tools and frameworks, together with most states and courts exhibiting ‘pro-arbitration’ attitudes, lead one to question whether ToR remain a necessary procedural tool. In answering this question, the article first assesses the historical context in which the ToR were introduced to serve as a submission agreement and questions whether ToR continue to serve their historical role. The article thereafter closely scrutinizes the ToR’s current features and functions and considers whether the ToR have outlived their usefulness by analysing whether they are needed to fulfil those functions. The fact that ToR are no longer required as necessary evidence of consent and/ or to assist in the enforceability of an award, together with the advent of new procedural tools and practices, have rendered the ToR all but superfluous in today’s context. The article proposes that the ToR’s mandatory nature be dispensed with in the interest of efficiency, making way for dynamic procedural alternatives. International Arbitration, Terms of Reference, ICC, Arbitration Procedure