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New Claims subsequent to the Terms of Reference
in ICC Arbitrations
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Att. Ezgi Babur
In International Chamber of Commerce (“ICC”) arbitrations, new
claims that are subsequent to the terms of reference are subject to the
arbitral tribunal’s authorization. Article 23(4) of the ICC Arbitration
Rules (“Rules”) give discretion to the arbitral tribunal by setting forth
that the arbitral tribunal shall consider the nature of new claims, the
stage of the arbitration, and other relevant circumstances. The issue of
new claims in ICC arbitrations and the application of Article 23(4) in
these matters are analyzed in this article.
In General
In ICC arbitrations, the terms of reference play an important role.
One of the purposes of the terms of reference is to establish the parties’
claims. The terms of reference contain, among other things, the relief
sought by the parties. If the parties make claims that fall outside of the
scope of the terms of reference, the provisions to be applied to these
new claims shall be determined.
In ICC arbitrations, Article 23(4) of the Rules sets forth under
which conditions new claims may be advanced in ICC arbitrations.
Pursuant to this provision, after the terms of reference have been
signed or approved by the court, no party shall make new claims that
fall outside the limits of the terms of reference, unless it has been
authorized to do so by the arbitral tribunal. The arbitral tribunal shall
consider the nature of such new claims, the stage of the arbitration, and
other relevant circumstances.
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NEWSLETTER 2015
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Article of October 2015