Legal Force of the Terms of Reference under the 2026 ICC Arbitration Rules

Abstract

This study examines how the removal of the mandatory requirement to prepare Terms of Reference under the 2026 ICC Arbitration Rules affects the legal force of their provisions when Terms of Reference are nevertheless drawn up, in light of the Jordanian Arbitration Law No. 31 of 2001, as amended, and the case law of the Jordanian Court of Cassation. It adopts an analytical doctrinal methodology that compares the institutional regulation of Terms of Reference under the 2021 and 2026 ICC Arbitration Rules and analyses the legal basis governing their effects under Jordanian law and judicial practice. The study finds that removing the requirement to prepare the document did not, in itself, affect the legal force that its provisions may possess. Rather, it separated the requirement to prepare the document from the legal source giving rise to the effect of each provision. Provisions embodying a valid agreement between the parties derive their binding force from the parties’ mutual consent, whereas provisions determined by the arbitral tribunal within the scope of its procedural authority derive their effect from the source conferring that authority. By contrast, statements recording claims, defences, issues, and positions retain an organisational or evidentiary function unless they evidence consent capable of giving rise to an independent legal effect. The Jordanian Arbitration Law likewise indicates that the legal force of Terms of Reference does not arise from the document’s designation or signature as such, but from the source and legal nature of each element. This approach is supported by the case law of the Jordanian Court of Cassation, which distinguishes between the existence of a procedural agreement, the mere recording of a matter in the Terms of Reference, and the jurisdictional limits defined by the arbitration agreement. The study concludes that the source and legal nature of each provision constitute the most accurate basis for determining the legal force of Terms of Reference following the shift under the 2026 ICC Arbitration Rules from mandatory preparation of the document to its use as an optional procedural instrument.