The 2026 ICC Arbitration Rules take effect: the key changes explained from a user’s perspective

No mandatory terms of reference

Different from a long-standing practice at the ICC, which was also a rather unique element of ICC arbitral procedure, the new ICC Rules no longer require the signing of terms of reference by the arbitral tribunal and the parties. Those had originally been used to delineate the scope of the dispute and have certainty as regards the claims, counterclaims and defences raised. These terms of reference, however, were seen more and more as an unnecessary formality. As the ICC itself noted when introducing the new Rules, retaining the terms of reference only as an optional tool is also a result of lessons learned from the application of the Expedited Procedure Provisions since 2017, where no terms of reference are required either.

From the user’s perspective, this removes a step rather than a safeguard. But where you value an early, binding fix on the scope of the claims and defences – for instance in a high-stakes or document-heavy dispute – you can still ask the tribunal to draw up terms of reference. They are now an option to be requested, not a default to be relied on.

A new need for speed

The ICC Rules 2026 further place an emphasis on a more speedy resolution of disputes. For a user, speed cuts both ways: it lowers cost and brings certainty sooner, but it also leaves less room to develop a complex case – so the real question is which disputes you are content to fast-track and which you are not.

On the one hand, the monetary threshold for the automatic application (opt-out) of the Expedited Procedure Provisions has been raised to US$4 million for arbitration agreements concluded on or after 1 June 2026 (Article 1(3)(c) of Appendix V). This is intended to broaden the range of disputes that could be administered in this fast-track type of procedure, which is expected to lead to an arbitral award within six months from the first case-management conference (“CMC”). In practice, however, extensions of time – approved by the ICC Court – were common. In practical terms, this means that – by default – disputes worth up to US$4 million will now run as a fast-track procedure – typically before a sole arbitrator and on a compressed timetable. If that is not what you want for a particular contract, you have to opt out expressly in the arbitration clause; and you should treat the six-month target as an aspiration rather than a promise.

On the other hand, the new Rules introduce additional Highly Expedited Arbitration Provisions (“HEAP”), which aim at obtaining arbitral awards within only three months from the first CMC. Notably (Article 7(2) of Appendix VI), where the applicable lex arbitri allows, the parties can also opt for an award without reasons under the HEAP to facilitate the speedy resolution of their dispute. Before agreeing to an unreasoned award, weigh the trade-off carefully: it is faster, but you lose the ability to understand and stress-test the tribunal’s reasoning, to explain the outcome to your board or business, and to assess annulment and enforcement risk. For most companies, this will make sense only for low-value, time-critical disputes where preserving the commercial relationship matters more than a reasoned result.

Finally, the 2026 Rules also clarify and broaden the scope of the already existing Emergency Arbitrator Provisions, including a possibility for an emergency arbitrator to issue interim orders also on an ex parte basis (Article 7(1) of Appendix IV). This cuts both ways for a user. As an applicant, you may be able to secure urgent relief – for instance, an asset freeze – before the other side can react or dissipate assets. As a respondent, you may find yourself on the receiving end of an order made without a hearing. Either way, factor in that ex parte relief can later be challenged on right-to-be-heard grounds, which may affect whether it can be enforced.

Early determinations now anchored in the Rules

The 2026 Rules incorporate several elements that had so far only been provided for in the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration in its 2021 version. An important procedural tool that was moved from the Note to the Rules is the possibility to apply for an early determination that one or more claims are either manifestly without merit or manifestly outside the arbitral tribunal’s jurisdiction (Article 30). 

The early determination procedure had been applied in practice for some time already, also where one of the parties expressly objected to it, solely based on its mentioning in the ICC Note. Nevertheless, tribunals were at times still hesitant to go for an early determination. Its inclusion in the Rules is an overdue but welcome step to create legal certainty and perhaps nudge arbitrators and tribunals to embrace this tool more often. For a company – in particular a frequent respondent – this is good news on cost: where you face a claim that is clearly unfounded or plainly outside the arbitral tribunal’s jurisdiction, you now have a rules-based route to have it disposed of early, rather than paying to litigate it all the way to a final award.

The introduction of this new provision follows other institutional rules, such as those of the London Court of International Arbitration (“LCIA”) of 2020 in Article 22(viii), the Singapore International Arbitration Centre of 2025 in Rule 47 or the Hong Kong International Arbitration Centre Rules of 2024 in Article 43. It is also comparable to Rule 41 (formerly Rule 41(5)) of the ICSID Arbitration Rules, so the mechanism is by now firmly part of the international mainstream.

New confidentiality requirement for arbitrators 

With regard to confidentiality, the most important point for a user of ICC arbitration is what the Rules still do not do: ICC arbitration is not automatically confidential as between the parties. The 2026 Rules merely include a new express requirement for arbitrators to “keep confidential all matters relating to the arbitration unless otherwise in the public domain, agreed by the parties, required by applicable law, or necessary to protect a legal right or comply with disclosure obligations” (Article 12(8)). Notably, this provision does not establish a general confidentiality rule for all participants in the arbitration, as applies – for example – under Article 44 of the 2018 DIS Rules. It still remains for the parties and the arbitral tribunal to agree on a respective clause as part of Procedural Order no. 1, should the underlying contract not already include a provision. The new addition to the ICC Rules is nevertheless helpful, since any confidentiality requirements already applicable between the parties in light of their contractual relationship do not ipso facto apply to the arbitrators.

Practical takeaway: if confidentiality matters to you – for regulatory, reputational or competitive reasons – build an express confidentiality clause into the contract or into Procedural Order no. 1. Do not assume the Rules will supply one.

More stringent disclosure requirements for arbitrators

Also, the disclosure requirements for arbitrators have been adjusted. The ICC Rules had long adhered to the established standard that potential arbitrators must disclose any facts or circumstances which might call into question their independence and impartiality. The 2026 Rules further require that any doubts as to whether to make a disclosure or not shall be resolved in favour of disclosure (Article 12(2)). As the new Rules also clarify, a “disclosure does not, by itself, establish a lack of independence or impartiality” (Article 12(4)). Article 12(5) also seeks to enable a more efficient conflict check for the arbitrators by requiring each party to “submit to the Secretariat a list of persons and entities which they believe the prospective arbitrators and arbitrators should consider and the reasons thereof”.

For you as a party, this adds a small but real task at the constitution stage: you will be expected to compile a considered list of related persons and entities for the conflicts check. To prevent long lists from being submitted, there is a need to justify the inclusion of each person or entity. In a group with many affiliates, counterparties and advisers, this is worth preparing early rather than under time pressure. 

Express provisions on tribunal secretaries

Finally, the 2026 Rules also include a new express provision on the appointment and work of tribunal secretaries (Article 44), to whom the arbitral tribunal’s decision-making authority may expressly not be delegated. This provision also constitutes an incorporation of practical guidelines contained in the ICC Note for some time. Importantly, in terms of costs and as also the Note had set out before, “a tribunal secretary’s reasonable and justified expenses” may have to be reimbursed in addition to the arbitral tribunal’s fees and expenses by the parties. “Otherwise, appointing a tribunal secretary shall not create any additional financial burden on the parties. Direct arrangements between the arbitral tribunal and the parties regarding the tribunal secretary’s fees are prohibited.” (Article 7 of Appendix III) The practical point for a user is cost transparency: you may be asked to reimburse the secretary’s reasonable expenses, but not a separate fee, and the arbitral tribunal cannot strike a side deal with you on the secretary’s remuneration.

Conclusions

Overall, the new ICC Rules seek to create a more efficient arbitral procedure, while updating their provisions considering already established practices. Whether in particular the new HEAP will be actively used by parties – in particular in complex cases – remains to be seen. In any event, and this is to be welcomed, parties to arbitral proceedings have been given more options to tailor their dispute resolution process to their needs under the revised Rules. Similarly, when drafting arbitration clauses, contract negotiators are well-advised to seek counsel from disputes specialists to assess whether to opt out of some of the available procedures, such as – for instance – the Emergency Arbitrator Provisions. 

What to do now

1. Review your standard arbitration clauses against the new US$4 million expedited threshold and decide, as a matter of policy, whether to accept, raise or opt out of the Expedited Procedure and HEAP for the types of contract you sign.
2. Set a default position on the Emergency Arbitrator and ex parte relief – useful offensively, exposing defensively – and opt out where surprise relief against you is the greater concern.
3. Add or maintain an express confidentiality clause to your contracts or to Procedural Order no. 1 – the Rules do not make ICC arbitration confidential between the parties.
4. In live disputes, consider whether early determination under Article 30 can dispose of a clearly unfounded claim or jurisdictional objection before you incur the full cost of the proceedings.