Terms of Reference - ICC Arbitration *****/*** 1

MODEL TERMS OF REFERENCE

DISCLAIMER
This model is intended solely to assist arbitrators acting in ICC
arbitrations in the drafting of the Terms of Reference. It does not
constitute an exhaustive, mandatory or otherwise binding document.

This model is provided for guidance only and should be adapted to the
facts and circumstances of each case.

If a party does not sign the Terms of Reference, provisions which

reflect additional agreements of the Parties need to be adapted or
removed.

Square brackets demarcate the beginning and end of the optional

sentences suggested in the model, and slashes refer to the various
options.

For any questions, the arbitrators may contact their respective case
management teams.

© International Chamber of Commerce (ICC). All rights reserved.

Terms of Reference - ICC Arbitration *****/*** 2

TERMS OF REFERENCE
Pursuant to Article 23 of the ICC Arbitration Rules in force as of
[1 January 2012] / [1 March 2017] / [1 January 2021]
[check the relevant Article of other versions of the Rules where applicable]

ICC Arbitration *****/***

Claimant/s v/ Respondent/s v/ Additional Party/Parties

The Parties and their Representatives

Claimant/s [Represented by] / [Not represented] /

[Not participating]
NAME NAME
Address Law firm
Address
Telephone
Email

Respondent/s [Represented by] / [Not represented] /

[Not participating]
NAME NAME
Address Law firm
Address
Telephone
Email

Additional Party/Parties [Represented by] / [Not represented] /

[Not participating]
NAME NAME
Address Law firm
Address
Telephone
Email

The Arbitral Tribunal

NAME NAME NAME

Law firm Law firm Law firm
Address Address Address
Telephone Telephone Telephone
Email Email Email

[Administrative Secretary]

NAME
Law firm
Address
Telephone
Email
Terms of Reference - ICC Arbitration *****/*** 3

ICC Case Management Team [select one of the following addresses]

Headquarters
Counsel ____ (+331 49 53 ** **)
Deputy Counsel ____ (+331 49 53 ** **)
International Court of Arbitration
International Chamber of Commerce
33-43 avenue du Président Wilson
75116 Paris – France
Email: ica***@iccwbo.org

Hong Kong Office

Counsel ____ (+ ***)
Deputy Counsel ____ (+ ***)
International Court of Arbitration
International Chamber of Commerce
Suite 2, 12/F, Fairmont House
8 Cotton Tree Drive
Central – Hong Kong
Email: ica8@iccwbo.org

North America Office

Counsel ____ (+ ***)
Deputy Counsel ____ (+ ***)
In affiliation with SICANA Inc.
140 East 45th Street, Suite 14C
New York, NY 10017 – USA
Email: ica9@iccwbo.org

Brazil Office
Counsel ____ (+ ***)
Deputy Counsel ____ (+ ***)
In affiliation with SCIAB LTDA.
Rua Surubim, 504, Brooklin Novo
CEP 04571-050
São Paulo – Brazil
Email: ica10@iccwbo.org

Singapore Office
Counsel ____ (+ ***)
Deputy Counsel ____ (+ ***)
In affiliation with SICAS
32 Maxwell Road
#03-05B Maxwell Chambers
Singapore 069115
Email: ica11@iccwbo.org
Terms of Reference - ICC Arbitration *****/*** 4

[Include a Table of Content]

Optional Provision
I. Defined Terms

1. The following defined terms are used in these Terms of Reference:

• International Chamber of Commerce (“ICC”)

• International Court of Arbitration of the International Chamber of Commerce
(“Court”)
• Secretariat of the International Court of Arbitration (“Secretariat”)
• ICC Arbitration Rules in force as of [1 January 2012] / [1 March 2017] /
[1 January 2021] (“Rules”)
• Arbitral Tribunal, includes one or more arbitrators (“Tribunal”)
• Claimant/s, Respondent/s and any Additional Party/Parties together (“Parties”)
• [Any other definition that may be necessary]

II. The Parties and their Representatives

2. Any addition or change to the registered office of any party or to a party’s legal
representation after the date of these Terms of Reference must be notified to the other
Parties, the Tribunal and the Secretariat in writing immediately after such addition or
change.

3. When a relationship exists between a new party representative and an arbitrator which
in the Tribunal’s view may create a conflict of interest, the Parties agree that the Tribunal
may take appropriate measures to ensure the integrity of the arbitration, including the
exclusion of the new party representative from participating in all or part of the arbitration.

4. By signing these Terms of Reference, the Parties confirm that the above mentioned
representatives of the Parties are duly authorised to act and express themselves in this
arbitration in the name and for the account of the party that appointed them, in particular
for the execution of these Terms of Reference. Each may validly exercise his/her power
and authority individually or collectively.

III. Constitution of the Tribunal

5. The Tribunal was constituted as follows:

On ____, _____ [name]

/[was confirmed as co-arbitrator by the [Secretary General/Court] upon [joint] nomination
by Claimant/s [and the Additional Party/Parties], pursuant to Article 13(1).]
/[was appointed as co-arbitrator by the Court on behalf of Claimant/s [and the Additional
Party/Parties] upon the proposal of the ____ ICC National Committee/Group of the ICC,
pursuant to Article 13(3).]
/[was appointed directly by the Court as co-arbitrator on behalf of Claimant/s [and the
Additional Party/Parties], pursuant to Article [13(3).] /[13(4)/(a)/(b).]

On ____, _____ [name]

/[was confirmed as co-arbitrator by the [Secretary General/Court] upon [joint] nomination
by Respondent/s [and the Additional Party/Parties], pursuant to Article 13(1).]
Terms of Reference - ICC Arbitration *****/*** 5

/[was appointed as co-arbitrator by the Court on behalf of Respondent/s [and the

Additional Party/Parties] upon the proposal of the ____ ICC National Committee/Group
of the ICC, pursuant to Article 13(3).]
/[was appointed directly by the Court as co-arbitrator on behalf of Respondent/s [and the
Additional Party/Parties], pursuant to Article [13(3).] /[13(4)/(a)/(b).]

On ____, _____ [name]

/[was confirmed as sole arbitrator/president of the Tribunal by the [Secretary
General/Court upon joint nomination by the Parties/co-arbitrators], pursuant to Article
13(1).]
/[was appointed by the Court as sole arbitrator/president of the Tribunal, upon the
proposal of the ____ ICC National Committee/Group of the ICC, pursuant to Article
13(3).]
/[was appointed directly by the Court as sole arbitrator/president of the Tribunal, pursuant
to Article 13(4)/(a)/(b).]

Optional Provision
[Add where an administrative secretary has been/is being appointed]

6. The Parties agree to the appointment of _____ as administrative secretary for the
Tribunal, in conformity with the section on Administrative Secretaries of the Note to
Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of
Arbitration.

7. By signing these Terms of Reference, each party confirms that the Tribunal has been
properly constituted.

8. Accordingly, the Parties waive any objections in respect of matters known to the Parties
at the date of signature.

IV. Notifications and Communications

9. Pursuant to Article 3 of the Rules, the Parties and the Tribunal must send copies of all
written correspondence directly to all other Parties’ representatives, each arbitrator and
the Secretariat simultaneously to the addresses indicated on page ____.

10. Communications shall be sent to the Party representatives’ email addresses as set out
above on or before any date set by the Tribunal and by courier only when required.

11. Documents must be sent to the Secretariat in electronic form only.

12. [Any requirement regarding notification and/or depositing of an award at the place of
arbitration may need to be addressed.]

13. Subject to any requirements of mandatory law that may be applicable, and unless the
Parties agree otherwise, (1) the Terms of Reference may be signed in counterparts and
(2) such counterparts may be scanned and communicated to the Secretariat pursuant to
Article 3 of the Rules by email or any other means of telecommunication that provides a
record of the sending thereof.

14. Likewise, subject to any requirements of mandatory law that may be applicable, the
Parties may agree (1) that any award be signed by the members of the Tribunal in
counterparts and/or (2) that all such counterparts be assembled in a single electronic file
and notified to the parties by the Secretariat by email or any other means of
Terms of Reference - ICC Arbitration *****/*** 6

telecommunication that provides a record of the sending thereof, pursuant to Article 34

of the Rules.

V. Procedure to Date

15. On ____, the Secretariat received a Request for Arbitration filed by Claimant/s.

16. In its/their Request, Claimant/s [indicated that in accordance with the arbitration
agreement/s the arbitration is submitted to a sole arbitrator / three-member Tribunal [and
nominated ____ as co-arbitrator.] / [proposed that the arbitration be submitted to a sole
arbitrator / three-member Tribunal [and nominated ____ as co-arbitrator.]

17. The Secretariat notified the Request for Arbitration to Respondent/s on _____.

18. On ____, [following an extension of time granted by the Secretariat], [the Secretariat
received an Answer to the Request for Arbitration /[and counterclaims.] filed by
Respondent/s.] /[The Secretariat also received a Request for Joinder filed by
Respondent/s.]

19. In the Answer, Respondent/s [indicated that in accordance with the arbitration
agreement/s the arbitration is submitted to a sole arbitrator / three-member Tribunal [and
nominated ____ as co-arbitrator.] / [proposed that the arbitration be submitted to a sole
arbitrator / three-member Tribunal [and nominated ____ as co-arbitrator.] /[agreed with
Claimant/s to submit the arbitration to a sole arbitrator / three-member Tribunal.]

20. [The Secretariat notified the Request for Joinder to Claimant/s and the Additional
Party/Parties on _____.]

21. On ____, [following an extension of time granted by the Secretariat], Claimant/s and/or
Additional Party/Parties filed an Answer to the Request for Joinder.

22. [Respondent/s/The Additional Party/Parties raised a plea/s pursuant to Article 6(3) of the
Rules or did not submit an Answer.]
[It/They however requested that said plea/s be decided directly by the Tribunal.]
[Such plea/s will be decided directly by the Tribunal, after providing the Parties with an
opportunity to comment.]
[The matter was not referred to the Court. The Tribunal must decide any question of
jurisdiction or of whether the claims may be determined together, after providing the
Parties with an opportunity to comment.]
[At its session of ____, the Court decided pursuant to Article 6(4) [that this arbitration will
proceed.] /[that this arbitration will not proceed as to *** and ***.] /[that this arbitration will
not proceed as to Claimant’s/s’ /Respondent’s/s’ /the Additional Party’s/Parties’ claims
brought under *** and *** (name of contracts).]

23. Pursuant to Article 16 of the Rules the file was transmitted to the Tribunal on ____.

24. [As required by Article 24 of the Rules, the Tribunal convened a case management
conference which took place [via telephone conference] on _____ to consult the Parties
on procedural measures that may be adopted pursuant to Article 22(2) of the Rules and
Appendix IV to the Rules.]

25. [At its session of *** the Court extended the time limit for establishing the Terms of
Reference until *** pursuant to Article 23(2) of the Rules.]
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VI. Arbitration Agreement

26. /[Claimant/s /Respondent/s /the Additional Party/Parties] made claims under arbitration
agreement/s contained in [mention agreement(s), date(s), signatories], which provides:

[Quote in full the dispute resolution clause(s).]

VII. Applicable Substantive Law

27. [Quote in full the choice of law clause(s) and/or any subsequent agreement by the parties
or with the Tribunal for instance that the Tribunal may decide ex aequo et bono/amiable
compositeur; otherwise indicate whether this must be determined by the Tribunal.]

VIII. Applicable Procedural Rules

28. Pursuant to Article 19 of the Rules, the proceedings shall be governed by the Rules and,
where the Rules are silent, by any rules which the Parties or, failing them, the Tribunal
may settle on, whether or not reference is thereby made to the rules of procedure of a
national law to be applied to the arbitration.

IX. Language of the arbitration

29. [Refer to the arbitration agreement(s) and/or any subsequent agreement by the parties;
failing agreement, the Tribunal must decide on the language prior to establishing the
Terms of Reference and reflect its decision in the Terms of Reference.]

30. /[Accordingly], the language of the arbitration is _____.

X. Place of Arbitration

31. [The arbitration agreements/s provide/s for _____ as place of arbitration.] [The place of
arbitration was not provided in the arbitration agreement/s. The Court decided to fix
_____ (city/country) as place of arbitration (Article 18(1)). / The Parties subsequently
agreed on ____ (city/country) as place of arbitration.]

32. Pursuant to Article 18(2) of the Rules, the Tribunal may, after consultation with the
Parties, conduct hearings and meetings at any location it considers appropriate.

33. Pursuant to Article 18(3) of the Rules, the Tribunal may deliberate at any location it
considers appropriate.

XI. Parties’ Respective Positions and Relief Sought

34. The purpose of the following summaries is to satisfy the requirement of Article 23(1) of
the Rules, without prejudice to any other or further allegations, arguments, contentions
and denials contained in the submissions already on record, and in future pleadings or
submissions in this arbitration, subject to Article 23(4) of the Rules.

35. Therefore, no Party shall make new claims which fall outside the limits of these Terms
of Reference once they have been signed or approved, unless it has been authorised to
do so by the Tribunal who shall consider the nature of such new claims, the stage of the
arbitration and other relevant circumstances.
Terms of Reference - ICC Arbitration *****/*** 8

36. No statement or omission in the summary of any Party is to be interpreted as a waiver

or admission of any issue of fact or law. The summary neither reflects any fact finding by
the Tribunal nor any admission by any other Party.

37. [The summaries of the Parties’ respective positions and relief sought provided in these
Terms of Reference are based on the submissions made by the Parties to date: Request
for Arbitration dated ___, [Answer to the Request for Arbitration dated ___,] [Request for
Joinder dated ___,] [Answer to the Request for Joinder dated ___.]]

38. [Based on the Parties’ submissions, a summary of facts is hereafter provided.] /[The
following summary of facts is uncontested.] /[The Parties’ have summarised their position
as follows.]

39. By signing these Terms of Reference, the Parties neither subscribe nor acquiesce to the
summary of the other Party’s position set forth below.

A- Claimant’s/s’ Position and Relief sought

[to be completed]

B- Respondent’s/s’ Position and Relief sought

40. [Respondent/s [and the Additional Party/Parties] raise jurisdictional objections on the
ground that ____.]

41. [Any question of jurisdiction or admissibility shall be decided by the Tribunal.]

42. [By signing these Terms of Reference, [Respondent/s [and the Additional Party/Parties]
do/does not waive its/their jurisdictional objections.]

[to be completed]

C- Additional Party’s/Parties’ Position and Relief sought

[To be completed.]

XII. Amount in Dispute

43. [The amount in dispute is currently quantified at US$/Euros/[other currency] ____.] /[To
date, Claimant’s/s’ quantified claims amount to ____ and Respondent’s/s’ quantified
counterclaims amount to ____.] /[The amount in dispute is currently unquantified;
Claimant/s /Respondent/s /the Parties will determine the amount of their claims or
quantify the damages during the arbitration.]

XIII. Issues to be determined

44. The issues to be determined by the Tribunal may include but are not limited to the
following:

[To be completed; include any jurisdictional issues and issues related the costs to be
determined by the Tribunal; where Terms of Reference are to be approved, identify any
issue of jurisdiction as an issue to be determined]
Terms of Reference - ICC Arbitration *****/*** 9

45. In any event, the issues to be determined shall be those resulting from the Parties’
submissions, including forthcoming submissions, and those relevant to the decision of
the Parties’ respective claims and defenses, without prejudice to Article 23(4) of the
Rules.

46. The Tribunal shall be free to decide any issue by way of partial or interim awards, or by
a final award as it may deem appropriate and after having provided the Parties a
reasonable opportunity to present their case.

Optional Provisions which may be included when all parties are expected to sign

XIV. Protection of Personal Data

47. The parties, their legal representatives acknowledge, and shall ensure that all those
acting on their behalf acknowledge, that the ICC is subject to EU Regulation 2016/679
(“GDPR”) and related French data protection laws and regulations, acts as a controller
of personal data for some of the data processed during the arbitration for the purposes
detailed in the ICC Data Privacy Notice for ICC Dispute Resolution Proceedings, but not
for the activities undertaken by others in the context of ICC proceedings.

48. The GDPR or other data protection laws and regulations may also apply to the parties,
their legal representatives, the arbitrators and others acting on their behalf or at their
request. The party that considers itself or others acting on its behalf to be bound by the
GDPR or other relevant data protection laws and regulations shall inform the arbitral
tribunal as soon as practicable. The party shall insure that anyone acting on its behalf is
notified of such information of the arbitral tribunal. This means that, absent unusual
circumstances, any data protection issues shall be raised at the case management
conference if not before.

49. Each party, legal representative and arbitrators acting as data controller to which the
GDPR applies has a separate responsibility to comply with the provisions of the GDPR.

50. To the extent applicable, the arbitral tribunal, the parties, and their legal representatives
shall put in place, and shall ensure that all those acting on their behalf put in place,
appropriate technical and organisational measures to comply with any applicable data
protection laws during the arbitration and the applicable retention period in a
proportionate manner that minimizes the impact on the personal data.

51. The arbitral tribunal has authority to issue directions applying the data protection laws to
the proceedings, which shall be binding on the parties for the purposes of the arbitration.

52. The parties and their legal representatives shall put in place and shall ensure that all
those acting on their behalf put in place:

a. appropriate technical and organisational measures to ensure a reasonable level of

security appropriate to the arbitration, taking into account the scope and risk of the
processing, the state of the art, the impact on data subjects, the capabilities and
regulatory requirements of all those involved in the arbitration, the costs of
implementation, and the nature of the information being processed or transferred,
including whether it includes personal data or sensitive business, proprietary or
confidential information; and
b. mechanisms to ensure that they comply with data breach notification procedures.

XV. Other Procedural Matters

Terms of Reference - ICC Arbitration *****/*** 10

Procedural Orders

53. Any procedural matter may be determined by way of procedural orders after consultation
with the Parties.

54. Any procedural order may be made by the President alone on behalf of the Tribunal,
after consulting with the co-arbitrators. In case of urgency, the President may issue
procedural orders and directions alone.

Efficiency

55. In accordance with Article 22(1) of the Rules, the Tribunal and the Parties agree to make
every effort to conduct the arbitration in an expeditious and cost-effective manner, having
regard to the complexity and value of the dispute.

Optional Provisions
The Tribunal and the Parties may consider adding provisions related to any confidentiality
agreement, any value added tax due on the arbitrators’ fees, any reference to soft law such as
the IBA Rules on Taking of Evidence and the IBA Guidelines on Party Representation and any
reference to the use of ICC expertise services or the possibility of settling the dispute in
accordance with the ICC Mediation Rules.

Confidentiality

56. Unless disclosure is required by law, judicial or arbitral order, or for the purpose of
enforcing a judgment, order, direction, decision or award, or as needed to protect or to
pursue a Party’s legal right, or to enable an arbitrator to respond to a challenge, the
Parties and the Arbitral Tribunal undertake to preserve the confidential nature of the
arbitration.

Value Added Tax (VAT)

57. In accordance with Article 2(13) of the Rules, amounts paid to the Arbitral Tribunal do
not include any VAT. The undersigning Parties severally undertake to pay the VAT
directly to the Arbitral Tribunal upon its request of payment following presentation of
relevant invoices. The latter may arrange for the deposit of funds towards VAT due on
the fees and expenses in accordance with the Note.

Expertise

58. Any party and/or the Tribunal may request the ICC International Centre for ADR to
propose experts pursuant to the Proposal of Experts and Neutrals Rules.

Mediation

59. The Parties may, at any time, without prejudice to the present arbitration, seek to settle
their dispute in accordance with the ICC Mediation Rules.
Terms of Reference - ICC Arbitration *****/*** 11

Signature of the Terms of Reference

Place of arbitration: (city, country)

Signatures:

___________________ ___________________ ___________________

Name Name Name
For and on behalf of For and on behalf of For and on behalf of
Claimant/s Respondent/s Additional Party/Parties

Date: Date: Date:

___________________ ___________________ ___________________

Name Name Name
Co-arbitrator President / Sole Arbitrator Co-arbitrator

Date: Date: Date: