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Article 23(4) applies, and consequently, whether the new claim shall
be authorized.
On the other hand, it may be the case that the other party does not
object to the new claims. Whether this lack of objection could be con-
sidered as a waiver under Article 39 of the Rules shall be analyzed. The
relevant article sets forth that a party which proceeds with the arbitra-
tion, without raising any objection to a failure to comply with any pro-
vision of the Rules, or any other rules applicable to the proceedings,
any direction given by the arbitral tribunal shall be deemed to have
waived its right to object. However, to err on the side of safety, it is
preferable that the arbitral tribunal makes a decision on whether the
new elements as introduced fall within the scope of the terms of refer-
ence, and if so, whether they should be admitted
4
.
The Factors to be considered by the Arbitral Tribunal
Article 23(4) of the Rules gives a broad discretion to the arbitral
tribunal in considering whether the new claims shall be admitted. The
relevant article provides that the tribunal may consider all relevant cir-
cumstances, other than the ones given as examples in the relevant pro-
vision.
If the initial claims as recorded in the terms of reference, and the
new claims arise out of the same facts and the same agreement, there
is a higher chance that these new claims would be admitted by the arbi-
tral tribunal.
Again, the timing of new claims may be of significance, as well. If
the proceedings are in an early stage, such as right after the signature
of the terms of reference, and prior to the statements of the parties
being submitted, it is more likely that they will be admitted by the arbi-
tral tribunal. In this case, the new claims would not have a major neg-
ative impact on slowing down the proceedings. On the other hand, if
the new claims have been introduced after all the evidence has been
submitted, and prior to the rendering of the award, this may affect the
proceedings, and may be considered as a factor not to authorize the
new claims by the arbitral tribunal.
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Secretariat’s Guide, p. 256.