The 2026 ICC Rules – farewell to the Terms of Reference and hello to greater expedition

ICC arbitration is still the most widely used institutional arbitration procedure for international disputes. It is specified in many standard contracts such as the FIDIC suite of contracts. The 2026 ICC Rules of Arbitration (2026 ICC Rules) introduce substantial revisions to the ICC Rules including removing a unique feature: the previously mandatory Terms of Reference.

The revisions to the 2026 ICC Rules promote:

• Greater emphasis on case management through the Case Management Conference rather than the Terms of Reference;
• Expeditious and cost-effective conduct of ICC arbitrations proportionate to the complexity and issues in dispute; and
• Interim relief in Emergency Arbitration proceedings.

The 2026 ICC Rules entered into force on 1 June 2026 and apply to any ICC arbitration which is commenced on or after that date (unless the parties have agreed that another version of the ICC Rules will apply). The key revisions include:

1. The removal of the mandatory Terms of Reference
2. Introduction of the Highly Expedited Arbitration Provisions
3. Introduction of Early Determination provisions
4. Updates to the Emergency Arbitration process including allowing proceedings against a non-signatory and preliminary orders

Terms of Reference replaced by Case Management Conference as key procedural milestone

A key revision under the 2026 ICC Rules is that the Terms of Reference are no longer mandatory. Instead, arbitral tribunals have the discretion to draft them where appropriate for case management purposes.

The Terms of Reference were a unique feature of the ICC Rules. Under the previous ICC Rules, the tribunal had to draw up the Terms of Reference within 30 days of the file being transmitted to it. The Terms of Reference defined the scope of the dispute, including a list of issues to be determined. The removal of the mandatory Terms of Reference was influenced by the experience of the ICC with the Expedited Procedure Provisions (EPP) introduced in 2017, under which the Terms of Reference was not mandatory. The ICC Court has administered more than 1,000 cases under the EPP and tribunals in only a limited number of cases elected to draw up Terms of Reference (less than 25 cases).[1]

The central procedural milestone under the 2026 ICC Rules is the convening of a Case Management Conference (CMC) by the tribunal within 30 days to consult the parties on procedural measures.

Parties should note that following the initial CMC, no party may introduce new claims without the authorisation of the tribunal. This is different from the previous versions of the ICC Rules which provided that no party could make new claims which fall outside the limits of the Terms of Reference unless authorised by the tribunal. Given this, under the 2026 ICC Rules, parties should ensure that their claims are articulated as comprehensively as possible in the Request for Arbitration and Answer and Counterclaim stages.

In determining whether to allow new claims, Article 25 of the 2026 ICC Rules provides that the tribunal shall consider the nature of the new claims, the stage of the arbitration, any cost implications and any other relevant circumstances.

The removal of the Terms of Reference brings the ICC Rules closer to the other institutional rules like the SIAC Rules and LCIA Rules. While agreeing the Terms of Reference document could be time consuming, the Terms of Reference was useful to signify the consent of parties to arbitration, the seat and the issues to be considered. Examples of Singapore cases in which the Terms of Reference have been a significant document include:

• CBX v CBZ [2021] SGCA (I) 3: the Singapore Court of Appeal set aside awards by a tribunal on the ground that they had been made in excess of jurisdiction as the tribunal considered issues that had not been raised in the Terms of Reference.
• Hilton International Manage (Maldives) Pvt Ltd v Sun Travels & Tours Pvt Ltd [2018] SGHC 56: the Singapore High Court held that it had supervisory jurisdiction as the ICC Court had fixed Singapore as the seat of the arbitration and the parties had also agreed to the Terms of Reference which expressly stated that Singapore was the seat.

Highly Expedited Arbitration Provisions

The 2026 ICC Rules introduce the Highly Expedited Arbitration Provisions (HEAP) which is an opt-in mechanism with a compact timetable and mandatory procedural rules for the conduct of the arbitration.

HEAP is an even more streamlined and fast-tracked procedure than the EPP. It is suitable for lower-complexity cases or cases which require swift dispute resolution.

Unlike the EPP which applies to claims under a certain monetary threshold, the HEAP only applies if the parties agree to adopt it prior to the commencement of the arbitration. The parties can agree for the HEAP to apply regardless of the value of the claims and the ICC has drafted a new model arbitration clause for its adoption.

The HEAP is not simply a compressed version of a standard ICC arbitration. The HEAP procedure in Appendix VI of the 2026 ICC Rules sets out shorter timeframes and mandatory procedural rules for the conduct of the arbitration:

• Disputes under the HEAP will be decided by a sole arbitrator.
• Parties are required to frontload their cases. A Statement of Claim must be filed with a Request for Arbitration, and a Statement of Defence with the Answer to the Request for Arbitration.
• The tribunal may, after consultation with the parties, decide not to allow requests for document production or to limit the number, length and scope of written submissions and written witness evidence (both fact witnesses and experts).
• The tribunal may decide the dispute solely based on the documents the parties have submitted, with no hearing and no examination of witnesses or experts.
• The final award must be issued within three months from the date of the initial CMC (to be held within 7 days of the tribunal being appointed), unless extended by the ICC.

The HEAP is similar to the Streamlined Procedure in the SIAC Rules (see our previous article) which also provides for the resolution of arbitration within 3 months. But the approach taken by the ICC and SIAC are very different:

• The Streamlined Procedure applies by default for disputes under a certain value unless the parties expressly exclude the Streamlined Procedure in the arbitration agreement or by mutual consent later one. The HEAP is a purely opt-in procedure.
• The Streamlined Procedure has a monetary threshold of SG$1M while there is no monetary threshold for the HEAP.
• The Statement of Claim does not need to be filed with the Notice of Arbitration for the Streamlined Procedure. In contrast, under the HEAP, the claimant must file its Statement of Claim concurrently with the Request for Arbitration.
• The Streamlined Procedure theoretically still allows for joinder and consolidation. Under the HEAP, joinder and consolidation is not permitted.

The 2026 ICC Rules have also introduced revisions to the EPP. The 2026 ICC Rules raised the monetary threshold for the EPP to US$4M if the arbitration agreement under the Rules was concluded on or after 1 June 2026. The monetary thresholds for arbitration agreements concluded before 1 June 2026 remain the same.

We summarise below the key differences between the EPP (Appendix V) and the HEAP (Appendix VI) under the 2026 ICC Rules:

Early Determination

The 2026 ICC Rules introduce provisions for parties to apply to the tribunal for early determination of claims or defences that are manifestly without merit. Early determination has long been a part of ICC arbitration practice, such applications being within the tribunal’s broad case management powers. The introduction of a specific rule follows the introduction by the SIAC and HKIAC of specific provisions for Early Determination. The application of these provisions have been upheld by the Singapore[2] and Hong Kong[3] Courts.

Article 30 of the 2026 ICC Rules allows a party to apply to the tribunal for an early determination of one or more claims or defences on the grounds that:

• Such claims or defences are manifestly without merit; or
• Such claims or defences are manifestly outside the tribunal’s jurisdiction.

The Tribunal shall determine in its discretion whether to allow the application to proceed. If the Tribunal allows the application to proceed, it shall adopt the procedural measures it considers appropriate, after consulting the parties.

The express provisions on early determination in the 2026 ICC Rules are likely to promote greater use of the mechanism, which is akin to summary disposal in court proceedings.

Updates to the Emergency Arbitration process including allowing proceedings against a non-signatory and preliminary orders

The 2026 ICC Rules introduce provisions to enhance the effectiveness of Emergency Arbitration (EA) proceedings. There are two significant changes – allowing EA proceedings against a non-signatory and a process for ex parte preliminary orders.

Article 1(2) of Appendix IV provides that an EA may now be commenced against a non-signatory to the arbitration agreement if the President of the ICC Court is satisfied that an arbitration agreement binding such party may exist. This is a development from the 2021 ICC Rules which only allowed EA proceedings against signatories of the arbitration agreement or their successors.

Article 7(1) of Appendix IV provides that a party may, at any stage of EA proceedings, request a preliminary order directing another party not to frustrate the purpose of the EA application. Crucially, this request may be made and decided upon without notice (or ex parte) to all other parties. This means the applicant is not required to provide the other parties with notice of the application for preliminary orders until the emergency arbitrator has determined the application. Preliminary orders may prevent a party frustrating the purpose of EA proceedings by dissipating assets or other actions after it has notice of the EA proceedings.

This development brings the 2026 ICC Rules in line with the rules of the SIAC which introduced a procedure for ex parte protective preliminary orders in EA proceedings in 2025.

Other notable amendments

Another feature of the 2026 ICC Rules is the increased scope for truncated tribunals. Under the 2026 ICC Rules, the ICC Court may decide to proceed with a truncated tribunal after the last hearing or the filing of the last substantive submissions, whichever is later. Previously, under the 2021 ICC Rules, this could only be done after the close of the proceedings. The primary benefit would be that the tribunal that is missing a member (who passed away, resigned or has been removed) may proceed to issue an award without waiting for the appointment of a replacement arbitrator.

In practice, the power to proceed with a truncated tribunal has been used by the ICC Court sparingly so it will be interesting to watch if this changes.

The provisions on disclosure (Article 12(2)) have been strengthened by incorporating the ICC Court’s expectation that “any doubts that the prospective arbitrator may have about whether to make a disclosure shall be resolved in favour of disclosure.” This was previously set out in the Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration rather than in the ICC Rules themselves. The 2026 ICC Rules also place a new obligation on parties to assist the disclosure process by submitting a list of persons and entities for prospective arbitrators to consider when complying with their disclosure obligations (Article 12(15)).

Other new features of the 2026 ICC Rules include provisions for arbitrators to keep confidential all matters relating to the arbitration (Article 12(8)), the President of the ICC Court to fix or subsequently extend the time limit for rendering a final award (Article 34) (this replaces the longstanding default time limit of six months from the Terms of Reference which in practice rarely applied), arbitrators to sign the award electronically or in counterparts (Article 38), extending the deadline for the tribunal to submit a correction of the award on its own initiative from 30 to 45 days (Article 39(1)), and the appointment of a Tribunal Secretary (Article 44).

Conclusion

The 2026 ICC Rules are designed to increase the efficiency of ICC arbitrations. The introduction of the HEAP, early determination procedure and updates to the EA regime align the ICC Rules with other arbitral institutions like the SIAC which introduced similar provisions last year.

It will be interesting to see if tribunals and parties continue to use the Terms of Reference. While it was often grumbled about, the Terms of Reference could also be a pivotal useful document for a party to rely on in subsequent challenges to arbitral procedure and awards.

Our commercial clients are often looking to resolve disputes as efficiently and expeditiously as possible which can lead to the adoption of bespoke arbitration clauses with inflexible timeframes. In the words of one judge considering an arbitration clause that provided for a decision within 30 days on a major infrastructure project, regardless of the character of the dispute: “If the dispute happens to be extremely complex then the lawyers conducting the arbitration are required to adopt Procrustean measures to accommodate it to the available arbitration time.”[4]  The new HEAP is a commendable attempt to provide parties with an efficient expedited process that can be adopted in the arbitration agreement but which allows for some flexibility if the character of the dispute requires it.

[1] New ICC Rules of Arbitration enhance efficiency, clarity and usability (22 May 2026): https://iccwbo.org/news-publications/news/new-icc-rules-of-arbitration-enhance-efficiency-clarity-and-usability/

[2] DBO and others v DBP and others [2024] SGCA(I) 4.

[3] A v B1 and B2 [2026] HKCFI 2444.

[4] Palmer J, State of New South Wales v Austeel Pty Limited [2003] NSWSC 1077. In Greek mythology Procrustes was a thief who killed his victims by making them lie on an iron bed and forcing them to fit the bed exactly by either stretching them if they were too short or by cutting off the parts that hung off the ends of the bed if they were too tall.