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which dates. Therefore, the more efficient usage of the arbitration peri-
od by the parties and the arbitrators is ensured.
By signing the document, the parties acknowledge explicitly and
in writing that all proceedings executed so far, the procedure followed
for the notification of the petitions, choice of place of arbitration,
means of notification, advance on costs and numerous other matters
have been carried out in compliance with law. Therefore, any applica-
tion by one of the parties for the annulment based on matters set forth
therein or raising similar claims at the enforcement stage is prevented
at the inception of the proceedings. The arbitrators discussing and rul-
ing of an issue falling out of scope of their competences is also pre-
vented by the terms of reference. All these matters decrease the possi-
bility of the arbitral decision being annulled and facilitate obtaining the
enforcement decision from the courts of the country where the decision
shall be enforced.
The Terms of Reference does not replace the arbitration clause or
agreement, nevertheless it constitutes a new arbitration agreement inter-
party by the signing of the document by both parties. In case of contro-
versies between the Terms of Reference and the arbitration clause, the
parties shall be deemed to have declared their most recent intention and
desire to put into effect by signing the Terms of Reference without any
reservations, and this Terms of Reference shall prevail.
Another function of the Terms of Reference is to determine any
legal gaps. The Terms of Reference provides the possibility to agree
upon provisions for matters where the procedural rules to be applica-
ble to the procedure of arbitration are silent where the International
Chamber of Commerce’s Rules of Arbitration are applied.
The Terms of Reference, which has an important function in the
current International Arbitration Law, has been frequently referred to
by the ad hoc arbitration proceedings by the sole arbitrator or the arbi-
trators for its numerous advantages, even being introduced by the prac-
tices of the International Chamber of Commerce. The International
Arbitration Act numbered 4686 requires the arbitrators to prepare
terms of reference unless the parties agree otherwise. Pursuant to
Article 18 of the International Chamber of Commerce’s Rules of
Arbitration, a Terms of Reference must include the following content:
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NEWSLETTER 2012