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This provision intends to assist the arbitral tribunal in managing
the proceedings smoothly and efficiently, as well as providing enough
flexibility to permit new claims, where appropriate
1
.
Under Article 23(4) of the Rules, the arbitral tribunal is required to
conduct a two-step analysis. Firstly, the arbitral tribunal should decide
whether the new elements introduced are new claims, and as a second
step, whether these new claims should be authorized.
The Definition of “New Claim”
Within this context, the limits of what may constitute a new claim
must be analyzed. The Rules do not provide a definition for the term
of “new claim”. On the other hand, the scope of the terms of reference
should be examined with reference to the request for relief, and if a
new claim leads to the modification of the relief sought, or to an addi-
tional request for relief, there may well be an issue as to whether it is
within the scope of the terms of reference
2
. Within this framework,
there would be a difference if the claim is based on new facts or new
legal arguments, or if there is a change in the nature of the relief
sought.
It should be emphasized that only a change in the argument is
insufficient to be considered as a new claim, and a new claim will
imply that the relief requested is based on entirely new grounds
3
.
Therefore, a new characterization of a relief within the scope of the
terms of reference will not be considered as a new claim under this pro-
vision.
The timing of the decision of the arbitral tribunal may depend on
whether the party specifically requests permission to make a new
claim, or whether the other party opposes the new claims introduced.
If there is an objection to the new claims, or where the new element is
obviously a new claim, the arbitral tribunal shall decide whether
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187
1
Jason Fry, Simon Greenberg, Francesca Mazza
, The Secretariat’s Guide to ICC Arbitration,
ICC Publication 729 (Paris 2012), p. 255 (“
Secretariat’s Guide
”).
2
Thomas H. Webster, Michael W. Bühler,
Handbook of ICC Arbitration, Commentary,
Precedents, Materials, 3rd Edition, p. 364 (“
Webster/Bühler
”).
3
Secretariat’s Guide, p. 257.