How to draft Terms of Reference
| Autor: | Jean-Claude Goldsmith |
|---|---|
| Rok vydání: | 1987 |
| Předmět: | |
| Zdroj: | Arbitration International. 3:298-308 |
| ISSN: | 1875-8398 0957-0411 |
| DOI: | 10.1093/arbitration/3.4.298 |
| Popis: | TERMS OF REFERENCE undoubtedly form a key issue under the Rules for the ICC Court of Arbitration (the ‘ ICC Rules ’) which make them a requirement. They have, however, also to be established in ad hoc arbitrations where there is no pre-existing arbitration clause or when such an arbitration clause is not specific enough by itself to provide a foundation for the arbitration process. This article considers the manner in which to draft Terms of Reference under ICC Rules. The determination of the best manner in which to draft Terms of Reference involves an assessment of their advantages and disadvantages – or, one should probably say, advantages and risks. The subject will accordingly be treated by broad reference to its context, ie the whole ICC arbitration system, rather than to restrict the drafting nightmares encountered by arbitrators in establishing Terms of Reference. Terms of Reference have the advantage of bringing clarity and safety to the arbitration process, and are of an ‘educational value’ to the parties.1 Seen from that angle, Terms of Reference appear as ‘a protection of awards against attack, a tool for organizing the future path of the arbitral proceedings and sometimes a means to rapprochement of the parties’.2 On the other hand, against Terms of Reference one may say that they are not indispensable to the arbitration process: other institutional arbitration systems than that of the ICC function without them. A more serious complaint is that, by ‘crystallising’ the arbitration, they ‘freeze’ it as well, since under Article 16 of the ICC Rules no new claims or counterclaims may be made outside of the limits fixed by the Terms of Reference unless these are amended to that effect. Be that as it may, the requirement for Terms of Reference has for many decades existed … |
| Databáze: | OpenAIRE |
| Externí odkaz: |
|