I. Introduction
On 1 June 2026, the new Arbitration Rules of the International Chamber of Commerce (“ICC”) will come into force (“2026 ICC Rules”), replacing the 2021 edition that had governed ICC proceedings for the preceding five years (“2021 ICC Rules”).[1]
Each iteration of the ICC Rules recalibrates the procedural framework that shapes how international and cross-border business disputes are resolved annually.
The 2026 ICC Rules introduce several amendments, including in relation to arbitrator disclosures,[2] party disclosures in relation to third parties,[3] the default form of written communications,[4] the tribunal’s discretion to conduct hybrid hearings,[5] and codification of the tribunal secretary role.[6]
These revisions are a series of targeted refinements.
This note focuses on three other significant changes, with a brief comparative commentary on the practical implications of the amendments.
II. Brief analysis and commentary
A. Elimination of the Terms of Reference (“TOR”)
The 2026 ICC Rules lay to rest the TOR, a long-standing procedural feature of ICC arbitration.
Previously, Article 23 of the 2021 ICC Rules expressly required the tribunal to draw up the TOR, including a summary of the parties’ claims, issues to be determined, and procedural particulars.
The 2026 Rules dispense with this requirement entirely, instead placing the initial case management conference (“CMC”) at the heart of early procedural management.
The tribunal must now hold an initial CMC within 30 days of receiving the file from the Secretariat,[7] at which it establishes the procedural timetable for the efficient conduct of the arbitration.[8]
As a result, the default cut-off date for new claims now attaches to the initial CMC rather than the signing of the TOR.[9]
HAMP Commentary:
For parties, the removal of mandatory TORs eliminates what was sometimes a time-consuming formality exploited by recalcitrant parties. The ICC Rules addressed the latter issue by providing that the TOR may be approved by the ICC Court of Arbitration if a party refuses to sign them.
In the past, a written document expressly confirming the parties’ consent to the arbitration clause and to other important aspects of the arbitration (such as the Tribunal’s jurisdiction to award legal costs) had important practical uses. For UAE-seated arbitrations, the need for a TOR is perhaps less pressing today given the pro-arbitration stance adopted by UAE Courts and reflected in the UAE Arbitration Law.
Tribunals in UAE-seated arbitrations may continue to adopt TOR; however, since the ICC Court of Arbitration will no longer step in to approve them in case a party decides not to sign these, the benefit of TOR – in the absence of party consent – is relatively diminished.
This amendment aligns ICC practice with other leading regional institutional rules that dispensed with the TOR requirement. For example, under the arbitrate-AD Rules, the issuance of TOR is subject to the Tribunal’s discretion and is not mandatory.[10] TORs are similarly not required under the DIAC Rules.
In addition, the 2026 ICC Rules require that all claims be formulated by the initial CMC at the latest, if not already done in the request for arbitration and subsequent answer. From a temporal perspective, this is not a material change compared to the 2021 ICC Rules because under both sets of rules, no new claims can be formulated within 30 days from the transmission of the file to the Tribunal. The difference is the event which triggers the closure of the period to file new claims.
The default cut-off for introducing new claims is notably different under DIAC and arbitrate-AD, which is generally set at the filing of the statement of claim.[11] In all instances, the Tribunal retains discretion to allow new claims after the default cut-off date.[12]
B. Expedited Arbitration (“EA”) and Highly Expedited Arbitration (“HEA”)
The provisions on EA largely remain in force in the 2026 ICC Rules, with the exception that the threshold for EA is raised to USD 4 million for agreements concluded on or after 1 June 2026.[13]
Significantly, the 2026 ICC Rules introduce an entirely new regime for highly expedited arbitrations.
Unlike the EA procedure which applies by default,[14] the HEA provisions only apply where the parties expressly consent to their application.[15]
Another significant difference is that unlike the EA procedure which applies automatically to disputes of a certain value or lower, the HEA procedure is entirely independent from the value of the dispute.
HEA entails a strictly defined procedure with significantly truncated timelines, including that the respondent must file the answer and statement of defence (and counterclaims, if any) within 30 days of receiving the request and statement of claim.[16]
No other written pleadings may be filed by the parties,[17] and no extensions of time limits may be granted unless agreed by the parties.[18] That being said, the rules suggest that the tribunal has discretion to establish the procedural timetable, which means further written submissions may be allowed after the initial CMC.
This strict HEA procedural framework is in contrast with the EA process, where there are no similar restrictions on timelines for filing the statement of defence. Additionally, joinder and consolidation are expressly excluded from HEA.[19]
Under the HEA provisions, the sole arbitrator must render the final award within three months of the initial CMC,[20] compared to six months under the EA provisions.[21]
HAMP Commentary on EA
The 33% increase in the threshold amount for EA means that this amendment significantly broadens the pool of cases subject to EA by default.
Since the EA provisions apply automatically to arbitration agreements concluded after 1 March 2017 (albeit with different thresholds from year to year), parties must carefully consider whether the EA procedure is appropriate for them, and whether they would prefer to opt-out in their arbitration clause. Special consideration is prudent in mid-value contracts (i.e. where the entire value of the contract is USD 4 million or below).
Special provisions for EA are in place under both the DIAC Rules and arbitrate-AD Rules.
The arbitrate-AD Rules apply expedited procedures for disputes not exceeding AED 9 million (approximately USD 2.5 million).[22]
The DIAC Rules set a significantly lower default threshold of AED 1 million (approximately USD 272,000), with a three-month deadline for the final award.[23]
The ICC’s higher threshold means more cases default into expedited treatment, while more cases follow the standard procedures under the DIAC Rules and the arbitrate-AD Rules.
The variation in thresholds across institutions means that the choice of institution may have procedural consequences that parties do not always anticipate at the drafting stage.
HAMP Commentary on HEA:
EA and HEA are subject to the same fee scale for administrative expenses and arbitrator fees.[24]
This means that the ICC fees for the EA and HEA procedures are identical, and main differences between EA and HEA relate to procedural flexibility (wide under EA and limited under HEA) and the timeline for rendering the final award (i.e., six months versus three months).
This raises the question of when HEA is more suitable.
The ICC Commentary emphasizes that “the suitability of HEAP does not depend on the value of the claims but instead on the complexity of the issues and the parties’ interest in a swift resolution of their dispute”. (emphasis added) It further clarifies that for this reason, the HEA provisions apply on a pure opt-in basis, irrespective of the value of the dispute.
Parties who opt into HEA in their arbitration clause do not benefit from a monetary threshold that would automatically exclude high-value disputes from the procedure.
The ICC Commentary highlights that the newly introduced HEA procedure is “not intended for procedurally complex disputes”.[25]
This gives rise to the question of what may happen if a party does not agree with the characterization of the dispute as not being procedurally complex.
The answer is in Article 1(2) of Appendix VI, which provides that the ICC International Court of Arbitration (“ICC Court”) may decide that the HEA provisions do not apply on its own motion or upon request of a party or the tribunal.[26]
The built-in, discretionary review by the ICC Court means that an HEA provision may not apply even if a party fails to object to its application.
The decision to opt into the HEA provisions is, in substance, a risk allocation decision taken at the point of contracting.
Parties can exit the way they entered (i.e. through mutual consent), which is party-driven. There is an additional exit option via the ICC Court determination that the HEA procedure will not apply, which is a discretionary decision.
Parties may agree on the HEA procedure during the contract drafting process, when their interests are (more) aligned. The nature of disputes is that adverse parties may not be as keen to align diverging interests, which creates potential challenges for opting-out later on, when the relation becomes contentious.
Because the HEA provisions carry no monetary cap and apply solely by agreement, a party may find itself bound to a three-month timetable on a dispute of considerable value and complexity, with the only unilateral exit route being a determination of the ICC Court that the HEA provisions do not apply.
For that reason, parties may forgo opting into HEA in their arbitration clause, and instead revisit the question when a dispute has crystallized.
C. Early Determination
Another important development is the introduction of a formal mechanism for early determination of claims or defences on the grounds that they are manifestly without merit or manifestly outside the tribunal’s jurisdiction.[27]
HAMP Commentary:
Although previous iterations of the ICC Rules contained no equivalent provision, early determination is established as a well-recognized practice in ICC arbitrations, that was addressed in the ICC’s guidance note of October 2017.[28]
To confirm the validity of early determination as an accepted tool for ICC arbitrations, the main procedures from the guidance note were enshrined in the 2026 ICC Rules. As such, the 2026 ICC Rules elevate provisions on ED from soft guidance into the Rules themselves, thereby cementing the legitimacy of this procedure.
Early determination empowers tribunals to dismiss unmeritorious claims at an early stage, reducing cost and duration for respondents.
Parties should note that the threshold for early determination is significantly elevated. It is not sufficient to establish a prima facie case of no merit or lack of jurisdiction. The “manifest” standard resembles a threshold of obviousness: the lack of merit or absence of jurisdiction has to be clear or evident on the materials already before the tribunal, without a full evidentiary process.
The arbitrate-AD Rules have adopted a similar mechanism of “early dismissal” since 2024.
III. Conclusion
The 2026 ICC Rules represent a considered refinement of the ICC’s procedural framework, addressing established areas of friction while introducing new mechanisms that reflect the evolving expectations of users of international arbitration.
The elimination of the TOR, the expanded reach of expedited procedures, the introduction of the HEA regime, and the codification of early determination each raise distinct considerations that will interact differently depending on the seat of arbitration, the value and complexity of the dispute, and the commercial relationship between the parties.
As the regional arbitral landscape continues to develop, the interplay between the ICC Rules and frameworks such as the arbitrate-AD Rules and the DIAC Rules warrants close attention at the point of drafting dispute resolution clauses and when managing live proceedings.
[1] The 2026 ICC Rules will automatically apply to all requests for arbitration filed on or after their entry into effect (Article 1(2), 2026 ICC Rules).
[2] Article 12(2) of the 2026 ICC Rules introduces a provision that any doubts about whether or not to make a disclosure should result in disclosure.
[3] Article 12(5) of the 2026 ICC Rules now mandates the parties to submit a list of person or entities that should be considered for conflicts purposes. This is a separate requirement from third-party funding disclosures at Article 12(6) of the 2026 ICC Rules. This dual disclosure mechanism – combining a conflicts list with the funder disclosure -strengthens the framework for identifying potential conflicts of interest at an earlier stage.
[4] Article 3(1) of the 2026 ICC Rules provides that written communications will be made by email or other electronic means as a default, with Article 3(2) requiring hard copies only when the filing party requests proof of physical delivery or if electronic transmission is not possible. This replaces the 2021 Rules’ requirement to submit sufficient hard copies for each party, arbitrator, and the Secretariat (ICC 2021 Rules, Article 4(4)(b)).
[5] Article 27(1) of the 2026 ICC Rules includes a new provision confirming this.
[6] Article 44, 2026 ICC Rules.
[7] Article 24(1), 2026 ICC Rules.
[8] Article 24(2), 2026 ICC Rules.
[9] Article 25, 2026 ICC Rules.
[10] Article 24, arbitrate-AD Rules.
[11] Article 30(1), arbitrate-AD Rules; Article 24.3, DIAC Rules.
[12] Article 25, 2026 ICC Rules; Article 30, arbitrate-AD Rules; Article 24.3, DIAC Rules.
[13] Article 1(3)(c), Appendix V, 2026 ICC Rules ; Article 1(2)(b), Appendix IV, 2021 ICC Rules.
[14] Article 32, 2026 ICC Rules.
[15] Article 33, 2026 ICC Rules.
[16] Article 2(5), Appendix VI, 2026 ICC Rules.
[17] The exception is in case of counterclaims, where the claimant may file a reply to the statement of counterclaims within 20 days of receipt.
[18] Article 2(9), Appendix VI, 2026 ICC Rules.
[19] Article 3, Appendix VI, 2026 ICC Rules.
[20] Article 7(1), Appendix VI, 2026 ICC Rules.
[21] Article 4, Appendix V, 2026 ICC Rules.
[22] Article 36(1) and Article 36(2)(viii), arbitrate-AD Rules.
[23] Article 32.1(a) and Article 32.5, DIAC Rules.
[24] Article 6, Part II, Schedule of Fees, 2026 ICC Rules.
[25] “Unveiling the 2026 ICC Arbitration Rules, part 4: Highly Expedited Arbitration Provisions”, ICC Publications, 21 May 2026.
[26] A similar provision remains in place for EA.
[27] Article 30, 2026 ICC Rules.
[28] “Unveiling the 2026 ICC Arbitration Rules, part 5: Early determination”,ICC Publications, 27 May 2026.