2026 ICC Arbitration Rules: The Demise of the Terms of Reference and Other Notable Updates

The Demise of the Hallmark of ICC Arbitration, the ToR
The figure of the ToR was, until the entry into force of the 2026 Rules, one of the hallmarks of ICC arbitration. Its pedigree is long. The procedure can be traced to the 1922 Rules, where it was referred to as “Form of Submission,” with the actual expression “Terms of Reference” being introduced in the 1955 revision of the Rules. Historically, the ToR served three core functions: (i) confirming the parties’ consent to arbitrate; (ii) recording early procedural agreements; and (iii) defining the scope of the dispute, including the issues to be determined. In practical terms, it operated as an early charter for the case identifying the parties and tribunal, summarizing the claims and relief sought, fixing or recording key procedural and substantive parameters and providing the tribunal with a disciplined way to engage with the parties and matters at issue early in the proceedings.

That same discipline, however, became the source of much of the criticism. The ToR could help “set the stage,” but it could also require parties and counsel to debate the shape of a dispute before the pleadings, evidence and legal theories had been fully developed. In practice, parties and tribunals increasingly avoided detailed lists of issues at such an early stage in order to preserve flexibility as the case developed. Under the 2021 Rules, the tribunal had to prepare the ToR within 30 days after receiving the file, which contributed to parties being wary of committing to the scope of the proceedings at a very early stage.

The 2026 Rules do not abolish the objectives of the ToR, rather they alter the mechanism by which those objectives are accomplished. The ICC states that, under the 2026 Rules, ToR are no longer a necessary step in ICC proceedings, although tribunals retain discretion to establish them. The new initial Case Management Conference (CMC) becomes the central early procedural vehicle for identifying the procedural issues that will shape the proceedings. As such, Article 24 requires the tribunal to hold the CMC within 30 days of receiving the file, consult the parties on procedural measures and establish a procedural timetable during the CMC or as soon as possible thereafter. Procedural Order No. 1 (PO No. 1) will record agreed matters such as the parties’ identification, jurisdictional position, applicable law and procedural timetable. The intended immediate practical consequence is a reduction in front-end time and cost.

Overall, the success of the reform will depend on how seriously tribunals and counsel treat the CMC. If the initial CMC becomes a substantive case-design exercise, supported by a thoughtful PO No. 1, the reform will likely have the intended effect. If the CMC becomes a little more than a routine scheduling call, the process will have lost the benefits inherent in the ToR, without securing the intended advantages that motivated the rule change.

Establishment of Early Determination of Claims and Defenses
New Article 30 of the 2026 Rules gives tribunals express authority to dismiss claims or defenses earlier in the arbitration process if the claims are clearly “without merit” or outside the tribunal’s jurisdiction. While some tribunals have disposed of claims early in the process, an early disposition was not expressly authorized, which may have inhibited some tribunals. The new rule removes any doubt that early dismissal is available in ICC arbitrations. This aligns with other arbitration institutions that have similarly codified early determination mechanisms into their rules, such as the Singapore International Arbitration Centre and the London Court of International Arbitration. While the newly codified process may accelerate decision-making and thereby reduce costs, tribunals will likely remain cautious about granting such applications for fear of acting precipitously. That concern may be heightened by the fact that among the grounds for vacating an arbitration award under the Federal Arbitration Act (9 U.S.C. §1, et seq.) is a tribunal’s denying a party an opportunity to present its case.

Expansion of Fast-Track Procedures
The 2026 Rules expand the ICC’s expedited arbitration options in two important ways. First, the monetary threshold for automatically applying the Expedited Procedure Provisions (EPP) to a case is raised from $3 million to $4 million. Therefore, parties arbitrating disputes where the amount at issue is less than $4 million will, by default, be enrolled in an expedited resolution process, subject to the parties opting out. The EPP shortens the timeframe for obtaining a final award to six months after the initial CMC and allows tribunals to forgo certain procedures, including hearings and fulsome document production. Second, the ICC has introduced new Highly Expedited Arbitration Provisions (HEAP) that the parties may adopt. HEAP proceedings offer parties a final award within approximately three months of the initial CMC and are intended for disputes necessitating a speedy resolution. HEAP enables tribunals to limit document production and generally requires parties to lay out their case without the opportunity for an oral hearing. As a result, HEAP proceedings will likely be reserved for less complex cases that can be decided on a limited evidentiary record.

Strengthening of the Emergency Arbitration Procedure Through Preliminary Orders
The 2026 Rules (Appendix IV, Article 6) provide that the emergency arbitration process is available by providing that “the emergency arbitrator shall determine whether the emergency arbitrator has jurisdiction to order Emergency Measures.” A party may request emergency measures on an ex parte basis. This gives the emergency arbitrator a practical tool to protect against asset dissipation, destruction of evidence or other conduct that could frustrate the arbitration process. The reform is balanced by due process safeguards, namely, that if an emergency measure is ordered, the counterparty is afforded an opportunity to be heard, and the order may be confirmed, modified or revoked.

Expansion of the Arbitrator Disclosure Framework
All arbitration practitioners and, particularly, the arbitrators themselves know the disclosure rule: “disclose, disclose, disclose.” Disclosure is central to arbitrator selection because party confidence depends not only on actual independence and impartiality, but also on transparency about any relationships or circumstances that might reasonably be seen as possibly compromising an arbitrator’s ability to serve as an impartial and independent member of the tribunal. Article 12 of the 2026 Rules instructs that doubts about whether to disclose should be resolved in favor of disclosure, while also clarifying that disclosure alone does not establish a lack of independence or impartiality. The Rules also place a more active burden on the parties. At the outset of the case, they must identify persons and entities that prospective arbitrators should consider for conflict-checking purposes, and explain their relevance. By expanding early potential conflict identification, the rules promote early identification and resolution of the issues, thereby reducing the potential for conflicts disrupting the proceedings.

Other Notable Updates

• Tribunal Secretaries: The 2026 Rules expressly recognize tribunal secretaries, codifying an ICC practice that previously existed on an ad hoc basis, and establish a formal framework governing their appointment, responsibilities and compensation.
• Arbitrator Confidentiality Rule: Article 12(8) of the 2026 Rules introduces an express confidentiality obligation for arbitrators. This is a welcome integrity measure—particularly in disputes involving trade secrets or commercially sensitive information—but the 2026 Rules still do not impose a general default confidentiality obligation on the parties themselves, which must be imposed by their agreement.

Conclusion
In conclusion, the 2026 Rules reflect a general modernization and an increase in the flexibility of ICC arbitration to serve the parties’ interest in a time and cost-efficient proceeding. The 2021 Rules had already moved the ICC toward greater technological flexibility. The 2026 Rules continue that trajectory by including new rules providing that communications with the Secretariat are now made by email or other electronic means that create a record, and that the CMCs may be held in person, in hybrid form, by videoconference, by teleconference, or by other electronic communication as agreed by the parties or as the arbitrators may direct.

With respect to the ToR, although now replaced by the CMC and PO No.1, it remains optional. In complex, multiparty or multi-contract disputes, a ToR may still be valuable because it provides a mechanism for an early common understanding of the dispute and of the tribunal’s mandate. In such cases, the ToR may be both time and cost effective.

Overall, the updated 2026 Rules represent a welcomed update to ICC arbitration and seem well-geared to effecting a reduction in cost and a more expedited resolution of disputes.