Turkey: Terms Of Reference Pursuant To The International Chamber Of Commerce (ICC) Rules Of Arbitration

Terms of Reference

Terms of Reference is a document provided for the usage within international arbitration law by the International Chamber of Commerce with its main purpose being the fast and efficient progress of arbitral proceedings; the content of which is drawn and executed with participation and by mutual consent of the parties and arbitrators.

The document sets forth the scope and limits of the duties and competences of the arbitrators. The document includes information on the parties and arbitrators, a summary of pleas and defense of the parties, the claims, the dispute in question, and the procedural provisions which shall be applicable. Therefore, the drawing up of the document sets forth a framework to the flow of the proceedings, and as it reflects the consent of the parties, the recognition and enforcement of the arbitral awards at the end of the proceedings is assured.

The Advantages, Functions and Legal Nature of the Terms of Reference

The parties and the arbitrators, by drawing up the terms of reference, ensure that the dispute is explicitly put forward and defined. The parties negotiate and arrive to a consensus with respect to numerous material rules applicable to the procedure of the arbitration, such as the language and place of arbitration, terms, and means of notification. Therefore, some possible frustrating issues related to procedural matters which may arise at a later stage can be averted at the inception of the arbitration proceedings and any interruption in the proceedings may thus be prevented.

The Provisional Time Table separately prepared together with the Terms of Reference states in detail which items shall be fulfilled at which dates. Therefore, the more efficient usage of the arbitration period by the parties and the arbitrators is ensured.

By signing the document, the parties acknowledge explicitly and in writing that all proceedings executed so far, the procedure followed for the notification of the petitions, choice of place of arbitration, means of notification, advance on costs and numerous other matters have been carried out in compliance with law. Therefore, any application by one of the parties for the annulment based on matters set forth therein or raising similar claims at the enforcement stage is prevented at the inception of the proceedings. The arbitrators discussing and ruling of an issue falling out of scope of their competences is also prevented by the terms of reference. All these matters decrease the possibility of the arbitral decision being annulled and facilitate obtaining the enforcement decision from the courts of the country where the decision shall be enforced.

The Terms of Reference does not replace the arbitration clause or agreement, nevertheless it constitutes a new arbitration agreement interparty by the signing of the document by both parties. In case of controversies between the Terms of Reference and the arbitration clause, the parties shall be deemed to have declared their most recent intention and desire to put into effect by signing the Terms of Reference without any reservations, and this Terms of Reference shall prevail.

Another function of the Terms of Reference is to determine any legal gaps. The Terms of Reference provides the possibility to agree upon provisions for matters where the procedural rules to be applicable to the procedure of arbitration are silent where the International Chamber of Commerce’s Rules of Arbitration are applied.

The Terms of Reference, which has an important function in the current International Arbitration Law, has been frequently referred to by the ad hoc arbitration proceedings by the sole arbitrator or the arbitrators for its numerous advantages, even being introduced by the practices of the International Chamber of Commerce. The International Arbitration Act numbered 4686 requires the arbitrators to prepare terms of reference unless the parties agree otherwise. Pursuant to Article 18 of the International Chamber of Commerce’s Rules of Arbitration, a Terms of Reference must include the following content: Information on the parties and arbitrations, information on notification, the dispute in question by summarizing the plea and defense, listing the matters to be resolved, place of arbitration, procedural rules, whether the arbitrators are authorized to act as amicable compositeur.

Material Consequences of the Terms of Reference

The preparation of the Terms of Reference bears numerous legal and other consequences. The Terms of Reference enters into force as of its execution by the parties and the arbitrator (or the arbitral tribunal) and bears all its impacts and consequences. Nevertheless, pursuant to the International Chamber of Commerce’s Rules of Arbitration, signing of the Terms of Reference by both parties is not mandatorily required in order to proceed with the arbitration proceedings. Therefore, the prolongation of the procedures by a party refusing to sign the Terms of Reference is prevented. The International Chamber of Commerce’s Rules of Arbitration regulates that in the event one of the parties refusing to participate in the preparation or signing of the Terms of Reference, the document shall be referred to the arbitral tribunal for approval. In the event a both parties choose not to sign a Terms of Reference, the document will not subsist.

The possibility to file an annulment lawsuit for the reasons stipulated under article 15A/1 of the International Arbitration Code numbered 4686 shall materially be removed after the signing of the Terms of Reference. By preparing the Terms of Reference, the parties shall be deemed to have declared that they agree their current dispute to be resolved through arbitration, thus they may not claim the invalidity of the arbitration clause at a later stage. Given that the parties shall have acknowledged the choice of arbitrators, they shall not be able to initiate annulment proceedings claiming the undue choice of arbitrators, or the failure to pronounce a decision within the period of arbitration; requesting the annulment of the arbitral award by claiming that the arbitrators have ruled on a matter falling out of scope of the arbitration agreement or not ruling or all matters set forth in the claims of the parties or by claiming that the procedures have been violated.

Another consequence of the signing of the Terms of Reference by the arbitrator and the parties is to state that the arbitral award materially bears all enforcement qualifications. Pursuant to article 5/1 of the New York Convention, claiming the invalidity of the arbitration clause, that the appointment of arbitrators is in violation of the procedural law, that a matter falling out of scope of the arbitration agreement has been resolved, that all matters raised in the claims have not been addressed in the award, or that the procedure has been violated shall constitute a violation of the good faith principle in the event the parties have signed the Terms of Reference without any reservations.

The parties may not proceed with the annulment of the award for the reasons specified under the Terms of Reference and signed by the parties, and may not claim any such reasons at the stage of enforcement of the award.


The Terms of Reference, which has emerged as a result of increased necessity appearing in the arbitration proceedings, has become a very paramount document bearing material legal consequences with respect to its function in International Arbitration Law. The Terms of Reference aims to accelerate the proceedings, ensure legal security and efficiency by avoiding any potential procedural issues through determining matters such as revealing the respective claims and defense of the parties, the means of notification, and language of arbitration for the sake of solving the dispute in question. Furthermore, the parties once more expressly declare their agreement on the dispute to be resolved under arbitration law, thus preventing any future objections and challenges to this matter and obtaining an arbitral award, which may be recognized and has enforceability.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.