Leaner, faster, greener? Procedural flexibility in the 2026 ICC Arbitration Rules

Leaner, faster, greener? Procedural flexibility in the 2026 ICC Arbitration Rules

1. In this last post of our series on the 2026 ICC rules (the 2026 Rules), we explore three changes that aim to make ICC arbitration more flexible and efficient: an express provision for early determination of meritless claims/defences, the removal of mandatory Terms of Reference (ToR), and increased scope for truncated tribunals. 

Early determination: a valuable efficiency tool

2. Article 30 codifies early determination of claims, bringing the 2026 Rules in line with other leading arbitral institutions – such as the SIAC (Rule 47), HKIAC (Art 43), CIETAC (Art 50), LCIA (Art 22.1(viii)) and SCC (Art 39) –  which already provide for this procedural device, albeit with variations in grounds, application requirements, procedural steps and decision timelines.
3. As mentioned in our first post in this series, the ICC is not late to the practice: its 2017 note to parties and arbitrators already confirmed that tribunals have the power to summarily decide claims and defences under Article 22 (as it then was).
4. Article 30 takes a step further by expressly providing for that power in the body of the 2026 Rules. It also defines the grounds for exercise (ie, manifest lack of merit or manifest lack of jurisdiction over claims or defences), while preserving tribunal discretion in shaping the procedure.
5. Despite widespread incorporation of early determination procedures across arbitral rules and their obvious potential to make proceedings more efficient and discourage frivolous claims, applications for early determination are still relatively rare and even more rarely successful. Only 5% to 8% of LCIA cases have involved an application for early determination, and in 2024 just one out of 16 was granted. The HKIAC and SIAC report similar patterns.
6. Due process paranoia may explain the low uptake and even lower success rate – the fear that early determination may be seen to infringe a party’s right to be heard and expose awards to challenge. But this fear may be unfounded. Supervisory courts have so far rejected set-aside applications based on the contention that an early determination resulted in denial of due process or breach of natural justice (see DBO and others v DBP and others, [2023] SGHC(I) 21, [2024] SGCA(I) 4; A v B1 and B2 [2026] HKCFI 2444).
7. There is a risk that this new ICC procedure may create additional opportunities for disruption. In particular, early determination applications may be used to delay, increase costs or gain procedural advantage rather than genuinely to dispose of unmeritorious claims quickly. This will need to be policed judiciously by tribunals.
8. Since arbitrations (particularly commercial contract arbitrations) are largely confidential and do not create binding jurisprudence, there will be little guidance for tribunals when applying the “manifest lack of merit” threshold, creating uncertainty for parties as to how tribunals will approach the threshold in any given case. For London-seated arbitrations, if parties want to have greater certainty in this regard, they may wish to adopt the default “no real prospect of success” threshold for summary dismissal under the Arbitration Act 1996 (as revised in 2025), which mirrors the threshold for summary judgment in the English courts and is therefore the subject of extensive case law.

A more flexible procedure: farewell to the Terms of Reference and default time limits for awards

9. The 2026 ICC Rules no longer require mandatory ToR. Until now one of the distinctive features of ICC arbitration, the ToR (signed by all the parties as well as by the arbitrators), required the tribunal to set out the parties’ claims, identify issues to be determined and define key procedural parameters before the arbitration began in earnest. While the ToR served valuable functions, encouraging early engagement on the merits, setting the boundaries of the dispute and occasionally curing jurisdictional defects, they also attracted criticism for adding time and cost. The 2026 Rules eliminate this step in favour of a streamlined initial case management conference (CMC), with the cut-off for new claims now pegged to the CMC. This aligns ICC practice with most other leading arbitral institutions such as the LCIA, SIAC, HKIAC and ICSID, which have never required ToR, while preserving the substance of early case organisation through a mandatory CMC.
10. That the ICC Rules no longer require ToR is not without any downsides. As already noted, ToR can help expose jurisdictional defects not evident from the Request for Arbitration and Answer. More broadly, they also impose discipline by requiring the parties and tribunal to articulate the scope of the dispute early. Without that anchor, uncertainty and defects may linger and surface later when corrective options may be more limited. The CMC is not a like-for-like substitute, as it is a procedural scheduling exercise rather than a document scrutinised and signed by all parties defining the basis and scope of the parties’ dispute.
11. The 2026 Rules also abandon the default six-month time limit for rendering a final award. In its place, Article 34 empowers the ICC Court’s President to fix (and extend) the time limit on a case-by-case basis, having regard to the procedural timetable or a reasoned tribunal request. This formalises what was already standard practice. Under the previous rules, the six-month default was almost invariably replaced by a Court-fixed deadline reflecting the actual procedural calendar.

Increased scope for truncated tribunals

12. The 2026 Rules also lower the threshold for allowing proceedings to continue with a truncated tribunal. Under the 2021 Rules, where an arbitrator withdrew or was removed, the ICC Court could authorise the remaining arbitrators to proceed without replacement only after the formal closing of proceedings. The 2026 Rules relax this requirement. A truncated tribunal may now be authorised once the last hearing has been held or the last substantive submissions have been filed, whichever is later. This may precede formal closure. While the ICC Court has historically exercised this power sparingly, the broader temporal window should reduce disruptions and costs in cases where an arbitrator departs at a late stage, particularly where deliberations are already underway.
13. However, there are reasons to be cautious. Permitting a truncated tribunal to continue risks undermining the integrity of deliberations where a departing arbitrator had already formed, and potentially shared, preliminary views. There is no ICC mechanism requiring the remaining arbitrators to disclose the extent to which the departing arbitrator’s views influenced the draft award. 

Does “flexible” mean “greener”?

14. Recently, the ICC Court’s President stressed that the 2026 Rules aim to improve efficiency and sustainability while adapting to evolving technological developments.
15. The question is whether the flexibility provided by the changes discussed above will result in more sustainable, “greener” arbitrations.
16. The new early determination procedure in the 2026 Rules may shorten the lifespan of many disputes, thereby reducing the energy, travel and resource intensity typically associated with lengthy arbitrations.
17. The removal of the ToR in the 2026 Rules should reduce paper consumption and carbon footprint.  On the other hand, there is a risk that dispensing with the ToR may in some cases impede early clarification of issues, potentially resulting in additional submissions and procedural disputes later in the proceedings, increasing paper consumption and carbon footprint.
18. However, the greater role now played by the CMC in arbitrations under the 2026 Rules should promote more rigorous early case management, fostering more efficient proceedings and thereby creating more sustainable, “greener” arbitrations.