On 1 June 2026, the new ICC Arbitration Rules 2026 (the“2026 Rules”) entered into force and will apply to all arbitrations commenced after that date unless the parties have agreed to use an earlier version of the ICC rules. The ICC has also published updated guidance on the application of the new rules from the ICC

We address below the key developments most likely to affect parties commencing and conducting ICC arbitrations.

Removal of mandatory Terms of Reference

Under the 2026 Rules, the initial case management conference (“Initial CMC”) replaces the Terms of Reference as the key early procedural milestone. Under the standard procedure it must occur within 30 days of the arbitral tribunal receiving the file from the ICC Secretariat (Article 25) and now marks the point after which new claims generally require tribunal approval. The timetable for the award is set by the President of the ICC Court based on the procedural timetable set by the arbitral tribunal (Article 34).  

The ICC has explained that the removal of the Terms of Reference was inspired by its experience of expedited arbitration procedure, under which they are not mandatory (and indeed are used by tribunals in a relatively small number of cases). For parties, the change is unlikely to mean significant time and cost savings. They will however be expected to articulate their approach to pleadings, evidence, document production, confidentiality, hearing format and timetable at the Initial CMC.

The ICC has confirmed that it expects to release a model Procedural Order No 1 for arbitrators and parties, which may include elements previously found in the Terms of Reference, for instance on the scope of the dispute and issues to be determined.

Early determination of claims and defences

The 2026 Rules formally recognise the arbitral tribunal’s power to determine claims or defences at an early stage (Article 30). Applications may be made at any point in the proceedings, although arbitral tribunals are most likely to grant them where the issue is manifest and can be resolved without extensive evidence.

The ICC notes that arbitral tribunals have most often granted applications where they had to determine legal issues only, and where limited or no evidence was required. This reflects the logic of the procedure, that the arbitral tribunal should not need detailed witness or documentary evidence to dispose of it.

Expedited vs highly expedited arbitration

Expedited Arbitration (“EPP”)

The EPP will now automatically apply to disputes of up to USD 4 million where the arbitration agreement was concluded on or after 1 June 2026, increasing the number of cases likely to fall within the regime. Parties may still opt out, or agree to use expedited procedures for higher-value disputes.

Opt-in Highly Expedited Arbitration Procedure (“HEAP”)

A new “highly expedited” procedure is now available to parties on an opt-in basis regardless of the value of the dispute. It is conducted before a sole arbitrator, and aims to produce an award within three months of the Initial CMC. Under the HEAP, Claimants must submit their Statement of Claim together with their Request for Arbitration; respondents then have 30 days to submit both their Answer to the Request for Arbitration and Statement of Defence (including any counterclaim). There can be no joinder or consolidation.

As such, the procedure requires substantial engagement and front-loading from the parties as the arbitration commences and within a tight timeframe. The sole arbitrator has considerable discretion to meet the three-month award issuance deadline, including through limiting submissions and evidence, excluding document production and dispensing with a hearing. Although there is no limit on value, the procedure will likely suit discrete and straightforward disputes, such as certain payment claims or contractual interpretation disputes. Parties should consider whether engagement with this procedure should be expressly caught by their arbitration clauses in contracts, which may ease the burden on commercial relationships where, for example, numerous minor disputes are prevalent, or whether agreement to the HEAP should be given after the dispute has arisen.

Emergency arbitration and without notice preliminary orders

Emergency arbitration allows parties to seek urgent relief before the tribunal is constituted. In a significant update, it may now be sought against a party where the President of the ICC Court is satisfied that an arbitration agreement binding that party may exist, including in cases where the party in question is neither a signatory of the arbitration agreement or a successor to a signatory (Article 1(7) of Appendix IV). There are a number of exclusions, including in circumstances where the arbitration agreement on which the Application is based arises from a treaty or an investment protection law.

The 2026 Rules also introduce a power for arbitrators to issue preliminary orders without notice (Article 7 of Appendix IV). This is a useful tool where prior notification may undermine the effectiveness of the relief sought, such as through asset dissipation or destruction of evidence.

The new rules facilitate access to emergency arbitration. Parties should still consider issues of enforceability of the emergency arbitrator’s orders in individual jurisdictions, together with the timing and availability of court relief.

Confidentiality

The 2026 Rules, Article 12(8) and 44(2), expressly require arbitrators and tribunal secretaries, respectively, to keep matters relating to the arbitration confidential, subject to specified exceptions. The obligation does not automatically extend to parties, counsel, experts or other participants. Therefore, wider confidentiality protection continues to depend on party agreement, applicable law and tribunal orders.

This reflects the diversity of approaches taken by parties, including disputes involving states or matters of public interest where it may not be suitable. Where confidentiality is commercially important, parties should consider whether the arbitration clause or procedural arrangements should address it directly, including whether to apply to the tribunal for a confidentiality order.

Prospective arbitrator disclosures

The 2026 Rules also make a series of changes directed at transparency, procedural integrity and administration.

A key point is that, under Article 12(5), parties must now provide lists of relevant persons and entities for arbitrators to consider when assessing potential conflicts. Depending on the circumstances, this may require parties to identify relevant affiliates, individuals, funders, insurers, reinsurers and other persons or entities whose relationships may be material to conflict checks.

Conclusion

The 2026 Rules increase the routes available for resolving suitable disputes quickly, but they also require careful assessment by parties as to whether which procedure is appropriate for their particular dispute. Parties should review their arbitration clauses to ensure they reflect the desired approach to expedition (including whether they need to opt in or out of particular procedures) and emergency relief. Once a dispute arises, they should consider their procedural strategy early, including their needs for document production and witness and expert evidence

For more information about the content of this article, please contact Caroline Croft.