Viewing the Terms of Reference System from the Perspective of Efficiency of International Commercial Arbitration

The Terms of Reference system, as stipulated in Article 23 of the ICC Arbitration Rules, pursues efficiency as its value. However, the defects of the current Terms of Reference system in the definition of new claims, the determination of the content standard of Terms of Reference, and the consistency of its internal logic have hindered the maximization of the efficiency of the Terms of Reference system. From the perspective of law and economics, marginal improvements to the existing Terms of Reference system can effectively improve its efficiency. First, clarify the definition of new claims, distinguish them from modifications of original claims, and define them based on the independence of cause of action and relief sought. Second, revise the logical structure of Article 23 of the ICC Arbitration Rules, eliminate unnecessary logical progression, and make the rules clearer and more specific. Third, introduce the principle of party autonomy, allowing new claims to be included in the arbitration procedure on the basis of consensus between the two parties. Finally, improve the granularity and predictability of the rules by publicizing typical arbitration cases. The optimization of the Terms of Reference system can promote the improvement of commercial arbitration efficiency, promote the improvement of international arbitration rules, and meet the dynamic and realistic needs of international dispute resolution.