Beyond The Terms Of Reference: Key Changes In The 2026 ICC Rules

Overview

Having celebrated the centenary of the ICC Court of Arbitration in 2023 and registered its 30,000th case under the ICC Arbitration Rules at the end of 2025, the International Chamber of Commerce (“ICC”) is not resting on its laurels as the world’s leading arbitral institution. On 1 June 2026, the new ICC Rules of Arbitration (the “2026 Rules”)¹ entered into force, replacing the 2021 Arbitration Rules.² The 2026 Rules will apply to arbitrations filed on or after that date, regardless of when the underlying arbitration agreement was concluded, unless the parties agree otherwise. The exception is the increased monetary threshold for the Expedited Procedure Provisions, which applies only to arbitration agreements concluded on or after 1 June 2026. This article summarises the key changes introduced by the 2026 Rules and considers their practical implications for parties involved in international arbitration.

New Highly Expedited Arbitration Provisions

A key innovation is a new opt-in Highly Expedited Arbitration Procedure (“HEAP”) which provides compressed timelines for disputes of any value to be decided within three months from the first case management conference (“CMC”).³ HEAP is closest in design to the Streamlined Procedure introduced under the Singapore International Arbitration Centre (“SIAC”) Rules 2025, which similarly provides for a sole arbitrator and an award within approximately three months. The London Court of International Arbitration (“LCIA”) Rules 2020 contain no direct equivalent, although Articles 9A and 9B provide for expedited tribunal formation and emergency relief.

HEAP requires the consent of all parties to apply to an ICC arbitration. Under HEAP, the ICC appoints a sole arbitrator , which would override any pre-existing agreement in an arbitration clause on the number of arbitrators.⁴ HEAP is therefore a particularly attractive option for time-sensitive, narrowly defined disputes, including contractual interpretation issues in post-M&A disputes, LNG price reviews where selected parts of a price formula are disputed, debt claims, on-demand performance bond calls, or isolated contractual claims in construction disputes rather than for document-heavy, high-value, and expert-led disputes. For example, in disputes where the parties need a rapid determination as to whether a change order has been validly issued, or where a dispute in relation to access to the site is holding up critical path works.

Parties should carefully consider whether their potential disputes are suited to this accelerated process, which does not allow the joinder of additional parties or consolidation of two or more arbitrations. Whilst parties may be guided by the ICC’s model clause for incorporating the parties’ consent to HEAP into contracts, parties may wish to consider drafting a bespoke arbitration clause to consent to HEAP for specific types of disputes and which includes a mechanism for the appointment of a three-member tribunal.⁵ Additionally, where a sole arbitrator is to be appointed by the ICC Court of Arbitration, a claimant which uses HEAP would need to ensure deposits are paid promptly so a sole arbitrator is appointed without delay.

Early Determination Mechanism

The 2026 Rules introduce an early determination mechanism, enabling any party to seek expeditious determination of claims or defences that are “manifestly without merit or manifestly outside the tribunal’s jurisdiction”.⁶ The tribunal has discretion to allow the application and, if permitted, must adopt appropriate procedural measures after consulting the parties.⁷ Having its origins in ICSID Arbitration Rule 41, the adoption of similar mechanisms by the SIAC in its 2016 Arbitration Rules and the Hong Kong International Arbitration Centre (“HKIAC”) in its 2018 Administered Arbitration Rules show a convergence in procedures in institutional arbitrations. This provision therefore brings the ICC into line with the LCIA, SIAC and HKIAC Rules, which have offered analogous mechanisms for some time. Experience under those rules suggests that tribunals exercise the power sparingly, and unsuccessful applications can add cost and create due process arguments at the enforcement stage. Used judiciously, however, early determination is a useful tool for disposing of clearly frivolous claims and narrowing the proceedings. Recently, the Hong Kong Court of First Instance in its decision in A v B1 and B2 [2026] HKCFI 2444 upheld a partial award rendered under the HKIAC’s early dismissal mechanism and found the use of the early dismissal mechanism was not a breach of natural justice. ⁸

Emergency Arbitration Enhancements

The 2026 Rules clarify and strengthen the emergency arbitration provisions.⁹ Three developments are particularly noteworthy:

Preliminary orders. A new mechanism allows a party to apply for a preliminary order, either ex parte or inter partes, directing another party to refrain from conduct that would frustrate the purpose of the interim measure sought, prior to the emergency arbitrator’s issuance of an Order (as defined in the 2026 Rules). Where prior notification would risk the relief requested, such as potential asset dissipation, imminent breach of confidentiality obligations or the destruction of evidence, it can be procedurally advantageous to obtain an ex parte preliminary order.¹⁰

In contrast to the preliminary protective order mechanism under the SIAC Rules 2025, which has detailed provisions regarding the steps after a preliminary protective order has been issued, the 2026 Rules leaves considerable discretion to the emergency arbitrator in the conduct of matters after an ex parte preliminary order is issued. This suggests the ICC would likely appoint as emergency arbitrators highly experienced practitioners who have done emergency arbitrations for such cases.

Expanded respondent categories. Emergency proceedings may now be commenced against: (i) signatories to the relevant arbitration agreement; (ii) their successors; and (iii) any party in respect of whom the ICC Court President is satisfied, based on the application, that a binding arbitration agreement may exist.¹¹ This third category is new and is of practical importance for disputes involving complex group structures (for example, where urgent relief is needed against a parent company, guarantor or affiliated SPV). Neither the SIAC Rules 2025 nor the LCIA Rules 2020 contain an equivalent express extension and emergency relief against non-signatories under those rules continues to depend on substantive legal doctrines.

Investment arbitration carve-out. The emergency arbitrator regime expressly excludes arbitrations arising “from a treaty or an investment protection law”¹², avoiding jurisdictional overlap with investment arbitration mechanisms.

The end of an era: removal of mandatory Terms of Reference

The 2026 Rules eliminate the Terms of Reference (“ToR”) — the iconic ICC document which defined the scope of the arbitration — as a mandatory procedural step. A tribunal retains the discretion to prepare a ToR where appropriate. The ICC has pointed to the experience of the Expedited Procedure Provisions (“EPP”), under which fewer than 25 of over 1,000 tribunals elected to draw up ToR.¹³

The CMC now is the sole procedural step required within 30 days of the tribunal receiving the file.¹⁴ Critically, no party may introduce new claims after the initial CMC without the tribunal’s authorisation.¹⁵ All potential claims must therefore be identified and carefully assessed well in advance of the CMC, failing which there is a risk of exclusion unless a party is able to justify why a claim or counterclaim is raised after the first CMC.

Where an agreed list of issues or separate lists of issues are now the norm in international arbitrations, the removal of the ToR shows the ICC’s willingness to be more user friendly and provides more procedural flexibility to arbitrators to run cases efficiently.

Increased Threshold for the Expedited Procedure

The monetary threshold for automatic application of the EPP has increased from USD 3 million to USD 4 million for claims brought under arbitration agreements concluded on or after 1 June 2026.¹⁶The ICC has indicated that over 40% of its 2025 cases involved amounts in dispute of USD 4 million or less.¹⁷A substantial proportion of ICC cases will therefore default to a sole arbitrator on an expedited timetable.

Parties negotiating new contracts should evaluate whether to opt out of the EPP for disputes below USD 4 million or opt in for disputes above that amount.

Other procedural refinements

The 2026 Rules also introduce several other refinements:

Arbitrator Disclosure. Arbitrators must resolve any doubt as to disclosure in favour of disclosure.¹⁸ For the purpose of conflict checks, together with the Request or Answer, or joinder application, parties must now submit lists of persons and entities which prospective arbitrators and arbitrators should consider and the reasons thereof, shifting part of the conflict-identification burden to the parties at an early stage.¹⁹This practical refinement will speed up conflict checks for prospective arbitrators, as the relationship of each individual or entity to a dispute would indicate whether or not there is likely to be a conflict of interest.

Arbitrator Confidentiality. Whilst the ICC Rules has consistently maintained that confidentiality in arbitrations would be left to each arbitral tribunal and the seat of arbitration²⁰, the Rules now expressly impose a confidentiality obligation on arbitrators and tribunal secretaries.²¹

Flexible award deadline. The previous fixed six-month deadline for the final award from the last signature of the ToR is replaced with a regime under which the ICC Court President sets the time limit by reference to the procedural timetable, with the power to extend upon a reasoned request.²²

Truncated tribunals. The remaining members of a tribunal may now proceed to render an award following the last hearing or substantive written submissions where an arbitrator is removed at a late stage, reducing the scope for tactical delay.²³

Key Implications

As one of the leading arbitral institutions in the world, the ICC has shown in the 2026 Rules that it is attuned to the needs of users of arbitration and is willing to “slaughter sacred cows” like the ToR which is synonymous with ICC arbitration. The introduction of HEAP, early determination and increased threshold for EPP arbitrations all show the ICC’s focus on active and efficient case management, and these new mechanisms provide the foundation for parties to expand on or modify in their arbitration agreements. The codification of the emergency arbitrator’s powers to grant preliminary orders on an ex parte or inter partes basis provide one more tool for claimants that need urgent relief and where it may be difficult to obtain similar relief quickly in national courts. The refinements in the 2026 Rules represent a careful distillation of institutional and user experience of the 2021 Rules and positions the ICC well for the future. We would be happy to discuss how clients can best take advantage of the 2026 Rules in crafting bespoke arbitration agreements and how they can impact dispute resolution strategies.

See the full text of the 2026 ICC Arbitration Rules here.

Footnotes

1. Art. 1(2) of the 2026 Rules. See also: ‘ICC Executive Board approves revised Rules of Arbitration’ 23 March 2026, available in: https://iccwbo.org/news-publications/news/icc-executive-board-approves-revised-rules-of-arbitration/.

2. ‘ICC Arbitration Rules 2021 and 2026 compared version’ available in: https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/rules-procedure/2026-arbitration-rules/.

3. Appendix VI, 2026 Rules.

4. Appendix VI, 2026 Rules. See also: Claudia Salomon, ‘New ICC Rules of Arbitration enhance efficiency, clarity and usability’, 22 May 2026, available in: New ICC Rules of Arbitration enhance efficiency, clarity and usability - ICC - International Chamber of Commerce.

5. Model Clauses on HEAP as published by the ICC here: Arbitration Clause - ICC - International Chamber of Commerce.

6. Art. 30(1) 2026 Rules.

7. Art. 30 (2) 2026 Rules.

8. See the Hong Kong Court of First Instance Decision in A v B1 and B2 [2026] HKCFI 2444 28 April 2026 available in: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=180880&currpage=T.

9. Appendix IV, 2026 Rules. See also Claudia Salomon, ‘New ICC Rules of Arbitration enhance efficiency, clarity and usability’, 22 May 2026, available in: New ICC Rules of Arbitration enhance efficiency, clarity and usability - ICC - International Chamber of Commerce.

10. Art. 7 of Appendix IV, 2026 Rules.

11. Appendix IV, 2026 Rules.

12. Art. 1(3)(c) of Appendix IV, 2026 Rules.

13. Claudia Salomon, ‘New ICC Rules of Arbitration enhance efficiency, clarity and usability’, 22 May 2026, available in: New ICC Rules of Arbitration enhance efficiency, clarity and usability - ICC - International Chamber of Commerce.

14. Article 24(1) 2026 Rules.

15. Art. 25 2026 Rules.

16. See: ‘Unveiling the 2026 ICC Arbitration Rules, part 3: Expedited Procedure Provisions and Emergency Arbitration’, https://iccwbo.org/news-publications/news/unveiling-the-2026-icc-arbitration-rules-part-3-expedited-procedure-provisions-and-emergency-arbitration/ .

17. Unveiling the 2026 ICC Arbitration Rules, part 3: Expedited Procedure Provisions and Emergency Arbitration - ICC - International Chamber of Commerce.

18. Art. 12(2) 2026 Rules.

19. Art 12, 2026 Rules.

20. See: 'Part I: Preliminary Matters, Chapter 2: Key Innovations under the 2012 ICC Rules', in Jacob Grierson and Annet van Hooft, Arbitrating under the 2012 ICC Rules (2012), pp. 14-15, as available on Kluwer Arbitration at https://www.kluwerarbitration.com/document/kli-ka-1221004-n; and Jason Fry, Simon Greenberg and Francesca Mazza ‘ICC Secretariat’s Guide to ICC Arbitration’ (2012), para. 3-804- 3-809.

21. Art. 12(8) 2026 Rules.

22. Art 34 2026 Rules.

23. Art. 16(5) 2026 Rules.