LEGAL PERSPECTIVE: ICC terms of Reference for arbitration by AbdelGadir Warsama Ghalib, Principal Legal Counsel, Bahrain

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Dr AbdelGadir Warsama Ghalib, Principal Legal Counsel, Bahrain

During arbitration, before International Chamber of Commerce (ICC) there are procedural steps to be carefully followed. Once the “Arbitral Tribunal” has been constituted and the advance requested has been paid, the ICC Secretariat transmit a copy of the file to members of the “Arbitral Tribunal”. From that time, parties are requested to correspond directly with the “Arbitral Tribunal”, while sending copies of their correspondence and submissions to the Secretariat and to the other party. By doing this, all parties involved in the arbitration are having all necessary info to proceed.

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Also, at this stage, and before the actual merits of the case can be addressed, the “Arbitral Tribunal” must first establish and draw up the Terms of Reference (TR). The Terms of Reference (TR) should contain the particulars listed in the ICC Rules. These include the names and descriptions of the parties and arbitrators, place of arbitration, summary of the parties’ respective claims and details concerning the applicable procedural rules. The Terms of Reference (TR) also contain a list of issues to be determined, unless the “Arbitral Tribunal” considers this inappropriate. Thereafter, the “Arbitral Tribunal” establishes a provisional timetable to be followed during the conduct of the arbitration.

The Terms of Reference (TR) must be transmitted to the Court within two months of the file being transmitted to the “Arbitral Tribunal”. Should one of the parties refuse to take part in drawing up or not sign the Terms of Reference (TR), the latter are submitted to the Court for approval, whereupon the arbitration may accordingly proceed.

The Terms of Reference (TR) become operative once they have been signed by the parties and the arbitrators or have been approved by the Court where a party has, failed to sign them. The “Arbitral Tribunal” must then proceed to establish the facts of the case. When it is satisfied that the parties have had a reasonable opportunity to present their cases, the “Arbitral Tribunal” declares the proceedings closed and proceeds to draft an “Award”, indicating to the Secretariat the approximate date by which the draft Award will be submitted to the Court. The Award is rendered within six months from the signature or approval of the Terms of Reference (TR), a time limit which the Court may extend. Then the issue, is ready for the final “Award”.