Rewriting the ICC Rules of Arbitration: Balancing Rules and Social Norms

Rushing to grab a coffee, board a plane, or buy groceries, we may be tempted to cut in line or push to the front, frustrated by the wait and anxious about being late. Yet most people remain patient, following unwritten social norms about acceptable behaviour rather than acting in ways that, in many cultures, would invite a rebuke.  

This raises an interesting question: when are social norms sufficient to govern our behaviour, and when are formal rules necessary? Social norms are generally sufficient when it comes to waiting in line because expectations about behaviour are widely shared and informal social pressures encourage compliance. Formal rules, by contrast, are often necessary when consistency, certainty and predictability are essential, particularly when non-compliance must carry defined consequences.  

Over the past two years, as I led the revision of the ICC Rules of Arbitration, which entered into force on 1 June 2026 (2026 Rules), we examined every aspect of the arbitral process and debated whether formal rules or social norms were needed – or whether a careful balance between the two would work best. We also considered how guidance, protocols and other practical measures such as good practice could help ensure that arbitration proceedings run smoothly and meet the needs and expectations of the parties. 

Encouragement and flexibility 

One issue we analysed was diversity, particularly whether the Rules should require participants to consider diversity and inclusion when making arbitral appointments. Although ICC places great value on these principles, we recognised that such a requirement would be difficult to enforce and therefore would not be appropriate for the Rules. Instead, the model letters to parties and arbitrators, as well as the Note to National Committees and Groups of the ICC on the Proposal of Arbitrators encourage consideration of diversity, broadly defined, among other relevant factors to propose the best arbitrator for the case.  

Sustainability and reducing the carbon footprint were also discussed. We concluded, however, that incorporating these objectives into the 2026 Rules would risk making them either too aspirational or too prescriptive. A mandatory approach could constrain participants’ choices without adequately accounting for the circumstances of individual cases. We therefore favoured flexibility and have adopted ICC sustainability practices for conferences and events and for the Secretariat’s own operations.  

Flexibility was also the preferred approach to various case management techniques to allow the process to be tailored to the needs of each case. Instead of requiring a second case management conference, mandating a particular approach to document production or directing the tribunal to identify the principal issues in dispute, the Note to Parties and Arbitral Tribunals on the Conduct of Arbitration (Note) provides a list of case management techniques that can be adopted for the expeditious and efficient conduct of the arbitration, as required under Article 23(1) of the 2026 Rules. Notably, under the 2026 Rules, the Terms of Reference are no longer a mandatory step in ICC Arbitration but are an available case management technique when the parties and arbitrators consider its adoption to be useful, such as when the parties subsequently agree on the scope of the tribunal’s jurisdiction.  

From rules and norms to good practice

The extensive revision process of the 2026 Rules made clear that many aspects of international arbitration are better addressed through good practice, rather than through formal rules. When participants share expectations about appropriate conduct, these practices can develop into widely accepted norms.  

Good practice can help address some of arbitration’s most frustrating situations. An unprepared arbitrator, for example, wastes time and resources, undermines confidence in the process, and can lead to poor decision-making. Yet such problems cannot be solved simply by regulating caseloads or requiring arbitrators to prepare properly. The underlying expectation is that arbitrators will manage their caseloads responsibly and come to hearings fully prepared.  

Delays in submitting draft awards present another challenge. The Note provides that a sole arbitrator is expected to submit a draft award to the ICC Court for scrutiny within two months of the hearing or last written submission, whichever is later, and a three-member tribunal submit their draft award within three months. If these deadlines are missed without good cause, the ICC Court may reduce the arbitrators’ fees.   

Although a deadline for submitting a draft award in a rule may sound potentially more effective, the arbitral institution would always have to extend such deadline if the tribunal does not submit their award within the stated time; otherwise, there is a risk that the tribunal would become functus officio and the arbitral process would be upended. As a result, the expectation of when draft awards should be submitted stated in the Note, reinforced by this financial consequence, operates as a more effective incentive than a rigid rule.  

“Due process paranoia,” leading to unnecessary cost and delay, is another recurring frustration. A tribunal may grant an extension, admit late evidence, allow yet another round of submissions, or tolerate delay tactics because a refusal might later be portrayed as denying a party the opportunity to present its case. But amending the Rules will not resolve this problem. The existing framework already requires the tribunal to establish the facts of the case and, under Article 23, obliges both the tribunal and the parties to conduct the proceedings expeditiously and cost-effectively. The solution is for the tribunal to apply these existing obligations consistently and with appropriate firmness.  

Personal conduct matters 

An efficient arbitral process depends on establishing a synergy among all stakeholders, including the parties, counsel, the arbitral tribunal, and the arbitral institution. All must work together and respect both formal rules and shared expectations of proper conduct. This means, among other things, avoiding the late submission of evidence, arguments over irrelevant matters, missed filing and hearing deadlines, and discourteous behaviour toward opposing counsel.  

Ultimately, rules, protocols, good practices and recommended case management techniques can take us only so far. A more efficient and less frustrating arbitral process also depends on respecting shared norms and taking responsibility for our own conduct. Just as most of us refrain from cutting in line, arbitration participants should recognise that fairness and efficiency depend not only on the rules they must follow, but also on their individual behaviour.