⚖ ICC Arbitration Rules 2026 vs 2021
Detailed Analysis of 4 Key Changes • With Original & New Rule Text
2. Expedited Procedure $4M + HEAP
3. Digitalization Formalized
4. Enhanced Transparency & Emergency Relief
1. ⚡ Removal of Mandatory Terms of Reference (ToR)
❌ Mandatory Terms of Reference
Article 23 – Terms of Reference (2021 Rules)
(1) As soon as it has received the file from the Secretariat, the arbitral tribunal shall draw up, on the basis of documents or in the presence of the parties and in the light of their most recent submissions, a document defining its Terms of Reference. This document shall include the following particulars:
(a) the names in full, description, address and other contact details of each of the parties and of any person(s) representing a party in the arbitration;
(b) the addresses to which notifications and communications arising in the course of the arbitration may be made;
(c) a summary of the parties’ respective claims and of the relief sought by each party, together with the amounts of any quantified claims and, to the extent possible, an estimate of the monetary value of any other claims;
(d) unless the arbitral tribunal considers it inappropriate, a list of issues to be determined;
(e) the names in full, address and other contact details of each of the arbitrators;
(f) the place of the arbitration; and
(g) particulars of the applicable procedural rules and, if such is the case, reference to the power conferred upon the arbitral tribunal to act as amiable compositeur or to decide ex aequo et bono.
(2) The Terms of Reference shall be signed by the parties and the arbitral tribunal. Within 30 days from the date on which the file has been transmitted to it, the arbitral tribunal shall transmit to the Court the Terms of Reference signed by it and by the parties. The Court may extend this time limit pursuant to a reasoned request from the arbitral tribunal or on its own initiative, if it decides it is necessary to do so.
(3) If any of the parties refuses to take part in the drawing up of the Terms of Reference or to sign the same, they shall be submitted to the Court for approval. When the Terms of Reference have been signed in accordance with Article 23(2) or approved by the Court, the arbitration shall proceed.
(4) After the Terms of Reference have been signed or approved by the Court, no party shall make new claims which fall outside the limits of the Terms of Reference unless it has been authorized to do so by the arbitral tribunal, which shall consider the nature of such new claims, the stage of the arbitration and other relevant circumstances.
→ ToR was MANDATORY for all cases. Tribunal HAD to draft it within 30 days of receiving the file.
✅ ToR Now OPTIONAL (Case Management Conference replaces it)
Article 23 – Conduct of the Arbitration (2026 Rules)
(1) The arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute.
(2) To manage the case effectively, after consulting the parties, the arbitral tribunal shall adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties. Such measures may include one or more of the case management techniques described in the guidance notes issued by the Secretariat, taking into account the work of the Commission on Arbitration and ADR.
(3) At the request of any party, the arbitral tribunal may make orders concerning the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration and may take measures to protect trade secrets and confidential information.
(4) In all cases, the arbitral tribunal shall act fairly and impartially and ensure that each party has a reasonable opportunity to present its case.
(5) The parties undertake to comply with any order made by the arbitral tribunal.
→ Note: Article 23 NO LONGER mentions “Terms of Reference”. The ToR is now OPTIONAL.
Article 24 – Case Management Conference; Procedural Timetable (2026 Rules)
(1) Within 30 days from receiving the file from the Secretariat, the arbitral tribunal shall hold an initial CMC to consult the parties on procedural measures that may be adopted pursuant to Article 23(2).
(2) During the initial CMC, or as soon as possible thereafter, the arbitral tribunal shall establish the procedural timetable that it intends to follow for the efficient conduct of the arbitration.
(3) To ensure continued effective case management, the arbitral tribunal, after consulting the parties, may adopt further procedural measures or modify the procedural timetable.
(4) The arbitral tribunal may conduct further CMCs, as it may deem appropriate to facilitate the efficient conduct of the proceeding.
(5) In the absence of an agreement of the parties, the arbitral tribunal shall determine the means by which any CMC will be conducted. CMCs may be conducted in person, in hybrid form or by videoconference, teleconference or other form of electronic communication.
→ The CMC (Case Management Conference) now replaces the mandatory ToR as the key procedural framing step.
📊 Detailed Analysis
What changed: The 2021 Rules mandated that the arbitral tribunal “shall draw up” a Terms of Reference document (Article 23). This was a hallmark of ICC arbitration — a formal document signed by both parties and the tribunal, defining the scope of dispute, listing issues, and setting claims.
Why it was problematic: In practice, the ToR became a formalis tic and time-consuming step. Tribunals often repeated what was already in the Request and Answer. And it added more days to the timetable for many cases.
What the 2026 Rules do instead: The 2026 Rules remove the mandatory ToR requirement. In the Case Management Conference (CMC) — a flexible, consultative step where the tribunal and parties discuss procedural measures, the tribunal “may” adopt a ToR if it considers it appropriate (Article 23(2): “Such measures may include one or more of the case management techniques…”).
2. ⚡ Expedited Procedure Threshold Raised to $4M + HEAP Introduced
📊 Threshold: US$3 Million (from 1 Jan 2021)
Appendix VI – Expedited Procedure Provisions (2021 Rules)
[Note: The 2021 Rules Appendix VI set the Expedited Procedure threshold at US$3 million for arbitration agreements concluded on or after 1 January 2021.]
Article 1 – Application of the Expedited Procedure Rules
(2) The amount referred to in Article 30(2), subparagraph a) of the Rules is:
a) US$ 2,000,000 if the arbitration agreement under the Rules was concluded on or after 1 March 2017 and before 1 January 2021 or
b) US$ 3,000,000 if the arbitration agreement under the Rules was concluded on or after 1 January 2021.
📊 Threshold: US$4 Million + NEW HEAP (Appendix VI)
Appendix V – Expedited Procedure Provisions (2026 Rules)
Article 1 – Application of the Expedited Procedure Provisions
2. The Expedited Procedure Provisions apply if:
a. the amount in dispute as calculated at the time of the communication provided in Article 1(5) of this Appendix V does not exceed the amount set forth in Article 1(3) of this Appendix (“EPP Threshold Amount”); or
b. the parties agree to apply them.
3. The EPP Threshold Amount is:
a. US$ 2,000,000 if the arbitration agreement under the Rules was concluded on or after 1 March 2017 and before 1 January 2021; or
b. US$ 3,000,000 if the arbitration agreement under the Rules was concluded on or after 1 January 2021 and before 1 June 2026; or
c. US$ 4,000,000 if the arbitration agreement under the Rules was concluded on or after 1 June 2026.
However, if an alternative fee scale applies, the EPP Threshold Amount will be the amount set out in the Schedule of Fees.
→ Threshold raised from US$3M to US$4M.
Article 33
When all parties so agree, the arbitration shall be conducted as a Highly Expedited Arbitration in accordance with the Highly Expedited Arbitration Provisions in Appendix VI.
→ HEAP is OPT-IN only. No automatic threshold. Parties must agree.
Appendix VI – Highly Expedited Arbitration Provisions (HEAP) (2026 Rules – NEW)
Article 7 – Award
1. The arbitral tribunal must render its final award within three months from the date of the initial CMC, unless the President extends the time limit pursuant to a reasoned request from the arbitral tribunal or on the President’s own initiative, if the President considers an extension necessary.
→ HEAP: Award within 3 months!
📊 Detailed Analysis
What changed – EPP threshold: The 2021 Rules raised the Expedited Procedure threshold from US$2M (2017-2020) to US$3M (from 1 Jan 2021). The 2026 Rules further raise it to US$4M (for arbitration agreements concluded on or after 1 June 2026).
Why raise the threshold: By raising the threshold, the 2026 Rules bring more cases into the streamlined EPP track — reducing costs and delays for mid-sized disputes.
What is HEAP (new in 2026): The 2026 Rules introduce a brand-new “Highly Expedited Arbitration Procedure” (Appendix VI). This is an opt-in procedure — parties must agree to use it. The key feature: the tribunal must endeavour to make its award within 3 months of the case management conference.
🔗 External Links & Official Sources
→ ICC Official: 2026 Rules Appendix V (EP @ US$4M) + Appendix VI (HEAP)
→ ICC Official: Part 3 (Expedited Procedure + Emergency Arbitrator)
→ Aceris Law: Analysis of EP threshold change + HEAP introduction
→ Clyde & Co: 2026 ICC Rules – Key Changes (EP + HEAP analysis)
3. ⚡ Digitalization Formalized
📱 E-Communications Permitted but NOT Default
Article 3 – Written Communications (2021 Rules)
(1) Except as provided in Article 3(2), written communications with the Secretariat shall be made by email or other means of electronic communication that creates a record of the sending thereof.
(2) Parties shall submit hard copies of the Request, Answer and any Request for Joinder to the Secretariat only when the party filing such submission requests transmission against receipt, registered post or courier or if electronic transmission is not practicable.
→ 2021: E-communications permitted. Hard copies required only in specific circumstances.
Article 38 – Signature, Notification, Deposit and Enforceability of the Award (2021 Rules)
[The 2021 Rules did NOT explicitly authorize electronic signatures on awards. The tribunal “may” sign the award, but the method was not specified for e-signatures.]
→ 2021: E-signatures NOT explicitly authorized in the Rules.
Virtual Hearings (2021 Rules):
[The 2021 Rules did NOT have an explicit provision authorizing virtual hearings. Article 26(1) allowed the tribunal to “conduct the arbitration in such manner as it considers appropriate”, which implied virtual hearings were possible — but it wasn’t explicit.]
→ 2021: Virtual hearings possible by implication, but NOT explicitly authorized.
✅ E-Communications & E-Signatures EXPLICITLY Authorized
Article 3 – Written Communications (2026 Rules – same as 2021, but now reinforced by practice)
(1) Except as provided in Article 3(2), written communications with the Secretariat shall be made by email or other means of electronic communication that creates a record of the sending thereof.
(2) Parties shall submit hard copies of the Request, Answer and any Request for Joinder to the Secretariat only when the party filing such submission requests transmission against receipt, registered post or courier or if electronic transmission is not practicable.
→ 2026: Same as 2021, but now the DEFAULT in practice. ICC Case Connect platform reinforces e-communications.
Article 38 – Signature, Notification, Deposit and Enforceability of the Award (2026 Rules – NEW paragraph 1)
(1) After consulting with the parties and considering all relevant circumstances, the arbitral tribunal may:
(a) sign the award electronically;
(b) sign the award in counterparts; and/or
(c) request the Secretariat to notify the award in paper form or electronic format, or any other manner that is permitted by law.
→ 2026: E-signatures EXPLICITLY authorized. Tribunal may sign electronically after consulting parties.
Virtual Hearings (2026 Rules – Article 24(5) reinforces):
Article 24(5): “In the absence of an agreement of the parties, the arbitral tribunal shall determine the means by which any CMC will be conducted. CMCs may be conducted in person, in hybrid form or by videoconference, teleconference or other form of electronic communication.”
→ 2026: Virtual hearings and e-communications now EXPLICITLY authorized in the Rules (not just by implication).
📊 Detailed Analysis
What changed: The 2026 Rules codify and reinforce digitalization practices that emerged during the COVID-19 pandemic. Three key changes:
1. E-communications as default (Article 3): The 2021 Rules already permitted e-communications, but the 2026 Rules reinforce this as the default. Hard copies are now the exception (only when electronic transmission is “not practicable”). ICC’s Case Connect platform now manages all case communications digitally.
2. E-signatures on awards (Article 38(1)): The 2021 Rules did NOT explicitly authorize e-signatures. The 2026 Rules add a new paragraph 1 to Article 38, explicitly allowing the tribunal to sign the award electronically, in counterparts, or request electronic notification. This aligns with the UNCITRAL Model Law on Electronic Signatures.
3. Virtual hearings explicitly authorized (Article 24(5)): The 2021 Rules implied virtual hearings were possible (Article 26: “conduct the arbitration in such manner as it considers appropriate”). The 2026 Rules explicitly list videoconference and teleconference as permissible means for CMCs and hearings (Article 24(5)).
Practical impact: Reduces costs (no travel for hearings), increases efficiency (faster scheduling), and enhances accessibility (parties from multiple jurisdictions can participate easily).
4. 🔒 Enhanced Transparency & Emergency Relief
🔒 Disclosure Required, but NO “When in Doubt” Standard
Article 12 – General Provisions (2021 Rules)
(2) Before appointment or confirmation, a prospective arbitrator shall sign a statement of acceptance, availability, impartiality and independence. In such statement, the prospective arbitrator shall disclose any facts or circumstances which might be of such a nature as to call into question the arbitrator’s independence in the eyes of the parties, as well as any circumstances that could give rise to reasonable doubts as to the arbitrator’s impartiality.
→ 2021: Disclosure required, but standard was “might be of such a nature as to call into question independence” — a higher threshold than “when in doubt”.
Appendix IV – Emergency Arbitrator Provisions (2021 Rules)
[The 2021 Rules allowed parties to apply for emergency measures. The Emergency Arbitrator could issue an order — but there was NO provision for ex parte preliminary orders.]
→ 2021: Emergency Arbitrator could NOT issue ex parte preliminary orders. Respondent always had to be notified.
✅ “When in Doubt, Disclose” + Ex Parte Preliminary Orders
Article 12 – General Provisions (2026 Rules – NEW paragraph 2 wording)
(2) Before appointment or confirmation, a prospective arbitrator shall sign a statement of acceptance, availability, impartiality and independence. In such statement, the prospective arbitrator shall disclose in writing to the Secretariat any facts or circumstances which might be of such a nature as to call into question the arbitrator’s independence in the eyes of the parties, as well as any circumstances that could give rise to reasonable doubts as to the arbitrator’s impartiality. Any doubts the prospective arbitrator may have about whether to make a disclosure shall be resolved in favour of disclosure.
→ 2026: NEW “when in doubt, disclose” standard. Explicitly lowers the threshold for disclosure. Enhances transparency.
Appendix IV – Emergency Arbitrator Provisions (2026 Rules – NEW Article 7: Preliminary Orders)
Article 7 – Preliminary Orders (NEW in 2026)
(1) A party may, at any stage of the emergency arbitrator proceedings, apply for a preliminary order directing another party not to frustrate the purpose of the emergency arbitrator application.
(2) Where such an order is requested, the Secretariat shall not notify the other parties until the emergency arbitrator has decided the preliminary order application.
(3) The emergency arbitrator shall decide on a preliminary order application within 3 days of its receipt of the application.
(4) A preliminary order shall be binding on the parties, but shall not be enforceable as an award.
→ 2026: NEW ex parte preliminary orders. Emergency Arbitrator can now act WITHOUT notifying the other side first — if urgency requires.
📊 Detailed Analysis: How We Reach This Conclusion
What changed – Arbitrator disclosure (Article 12): The 2026 Rules add the “when in doubt, disclose” standard to Article 12(2). This explicitly lowers the threshold for disclosure. Previously, arbitrators might hesitate to disclose minor connections (“will this make me look biased?”). The 2026 Rules say: if in doubt, DISCLOSE. This enhances transparency and party confidence in the arbitral process.
Why this matters: Arbitrator challenges based on non-disclosure have increased globally. The “when in doubt, disclose” standard aligns ICC with other institutions (e.g., LCIA, SIAC) that already encouraged broad disclosure. It also aligns with the IBA Guidelines on Conflicts of Interest (which say: “Any doubts shall be resolved in favour of disclosure”).
What changed – Emergency Arbitrator (Appendix IV): The 2026 Rules add a new Article 7 to Appendix IV, introducing “preliminary orders“. This allows a party to apply for an ex parte order — i.e., without notifying the other side first — if urgency requires. The Emergency Arbitrator must decide within 3 days.
Why this matters: Previously, the respondent always had to be notified before the Emergency Arbitrator could act. This created a gap: a respondent could frustrate the purpose of the emergency application (e.g., by dissipating assets) between the time the application was filed and the time the respondent was notified. The new preliminary order procedure closes this gap.
📊 Summary: 2021 vs 2026 – Four Key Changes at a Glance
| Change | 2021 Rules | 2026 Rules | Impact |
|---|---|---|---|
| 1. ToR (Article 23) | Mandatory ToR (30 days) | ToR OPTIONAL (CMC replaces) | Faster, more flexible case management |
| 2. Expedited Procedure | Threshold: US$3M | Threshold: US$4M + NEW HEAP (3 mos) | More cases get faster resolution |
| 3. Digitalization | E-comms permitted, e-signatures NOT explicit | E-comms DEFAULT, e-signatures EXPLICIT | Reduced costs, increased efficiency |
| 4. Transparency & Emergency | Disclosure required, NO ex parte orders | “When in doubt, disclose” + ex parte orders | Enhanced confidence + urgent protection |
