Draft Terms Of Reference For Icc Arbitration

---
name: draft-terms-of-reference-for-icc-arbitration
task_id: arbitration-international-dispute-resolution/draft-terms-of-reference-for-icc-arbitration
description: Ensures ICC Terms of Reference are drafted in an ICC-compliant, procedural way by identifying the parties, summarizing each side’s claims and counterclaims, bracketing disputed text for tribunal resolution, flagging contract-structure and governing-law issues for tribunal resolution, and recording agreed procedural matters.
activates_for: [planner, solver, checker]
---

# Skill: ICC Terms of Reference

## 1. Subject-matter triage
- This task is a drafting exercise for an ICC Terms of Reference under Article 23 of the 2021 ICC Rules.
- Treat the Terms of Reference as the primary deliverable; produce the document itself, not a memo about it.
- If the source materials include multiple parties, claims, contracts, governing-law references, or procedural agreements, identify them all before drafting and do not compress them into a single generic summary.
- Where the record is incomplete, bracket the missing or disputed language and leave the tribunal to resolve it.

## 2. Failure modes the skill is correcting
- Summarizes claims without separating agreed points from disputed formulations, so the same relief, factual predicate, or legal basis appears as if uncontested.
- Fails to bracket disputed Terms of Reference text, substituting one side’s wording instead of preserving both formulations for tribunal resolution.
- Misses contract-structure complexity, including layered contractual arrangements, cross-references, or multiple potentially relevant governing-law provisions.
- States applicable law too categorically when the source materials leave a choice-of-law or issue-allocation question unresolved.
- Omits agreed procedural matters that should be captured in the Terms of Reference.
- Reproduces source language mechanically without checking that the cited financial, operational, or procedural terms actually match the underlying record.
- Leaves the tribunal without a clear list of open issues that still require resolution before the Terms of Reference can be finalized.

## 3. Legal frameworks / domain conventions that apply
- ICC Terms of Reference under Article 23 of the 2021 ICC Rules should identify the parties, the tribunal, the arbitration agreement, the seat, the applicable procedural framework, the applicable substantive law, the claims and counterclaims, the issues to be determined, and agreed procedural matters.
- Terms of Reference should be drafted as a working procedural instrument: accurate, neutral, and complete enough to define the dispute without deciding it.
- When the parties disagree on wording or scope, preserve each position in bracketed alternatives rather than resolving the point in the draft.
- Governing law analysis should distinguish between the law governing the arbitration agreement, the substantive contract, and the arbitration procedure where relevant; if the record suggests tension among them, flag the issue rather than collapsing the distinction.
- Where the contract structure is atypical, multi-layered, or operationally interdependent, describe that structure with enough precision to alert the tribunal to interpretive consequences.
- Any legal proposition stated in the draft should be anchored to the controlling instrument relied on in the file, or to the relevant ICC Rules provision if the point is procedural.
- Use only source-verified terms for parties, contracts, dates, and financial references; if verification is not possible from the record, bracket or qualify the point instead of assuming it.

## 4. Analytical scaffolds
1. Identify the arbitration parties, their capacities, and the tribunal constitution details with exact names as reflected in the record.
2. Extract each party’s claims and counterclaims separately, then compare how each side characterizes the same relief, amount, timing, breach, or defense.
3. State agreed issues plainly; for disputed issues, present alternative formulations in brackets so the tribunal can choose the final phrasing.
4. Track the arbitration agreement, seat, procedural rules, and substantive law in separate clauses unless the source materials clearly unify them.
5. If the record contains more than one contract, amendment, purchase order, subcontract, or related instrument, enumerate them before drafting the applicable-law and merits summary.
6. Verify every key financial, time, and performance reference against the source set before using it in the draft.
7. Capture any pre-arbitration steps taken, including notice, negotiation, escalation, or other contractual preconditions, if they are relevant to jurisdiction, admissibility, or case management.
8. End with a concise note identifying all unresolved items that remain bracketed or require tribunal direction.

## 5. Vertical / structural / temporal relationships
- Map the dispute vertically across the contract stack: master arrangement, project-level instrument, amendments, notices, and any related financing or performance documents that affect the dispute.
- Note whether the allegedly breached obligations arise upstream or downstream in the chain of contracts, and whether a clause in one document is said to modify or incorporate another.
- Distinguish between historical facts, notice periods, cure periods, and post-dispute procedural events; do not mix them into a single chronology.
- If several instruments may govern different questions, preserve that allocation in the draft and flag any ambiguity for tribunal determination.
- Where the source documents refer to contemporaneous work, delivery, payment, delay, termination, or set-off events, place them in sequence so the tribunal can see how the dispute matured.
- If one party relies on a later amendment, waiver, or reservation of rights, identify its temporal effect on earlier conduct rather than treating it as static background.

## 6. Output structure conventions
- Draft a formal ICC Terms of Reference in document form suitable for direct conversion to `.docx`.
- Use conventional sections for: party and tribunal identification, arbitration background, summary of claims and counterclaims, issues to be determined, governing law and procedural framework, procedural matters agreed, and reserved issues.
- Where positions differ, use bracketed alternatives or bracketed disputed text; do not silently choose one side’s formulation.
- Keep agreed content clean and declarative; reserve brackets for true disputes, missing data, or tribunal choices.
- Include a final short reservation or note listing unresolved matters that the tribunal must settle to finalize the Terms of Reference.
- Do not include a cover memo in place of the Terms of Reference.
- Before finishing, ensure the Terms of Reference file is the operative product and contains the substantive clauses, not just headings or a summary.