Unveiling the 2026 ICC Arbitration Rules, part 2: Moving beyond mandatory Terms of Reference

Historically, Terms of Reference fulfilled three principal functions in ICC Arbitration: (i) confirming the parties’ consent to arbitrate (particularly relevant in jurisdictions where post-dispute submission agreements were required); (ii) recording key procedural agreements at an early stage; and (iii) defining the scope of the dispute, including a list of issues to be determined. 

Over time, the function and practical relevance of Terms of Reference have evolved alongside legal frameworks and practice of international arbitration. Successive revisions of the ICC Arbitration Rules have reflected this evolution, notably by adapting the responsibilities for drawing up the Terms of Reference (transferred by the Secretary to the Court, and to the arbitral tribunal), making the list of issues to be decided optional and reducing the applicable time limit for their preparation.  

Under the 2021 edition of the ICC Arbitration Rules, the arbitral tribunal had the responsibility of preparing the Terms of Reference and transmitting them to the ICC Court within 30 days of the file being transmitted to it. However, in practice, extensions – often of a further 30 days – were frequently granted to allow for meaningful consultation between the tribunal and the parties. If a party refused to take part in the drawing up of the Terms of Reference or to sign the same, they would be submitted to the ICC Court for approval. 

In many cases, Terms of Reference have provided an opportunity for the parties to align on procedural matters at an early stage. This was particularly so in regions where the Terms of Reference had served as a practical tool for procedural coordination, even as their original functions – such as confirming consent to arbitrate – had diminished. In practice, tribunals and parties increasingly refrained from setting out a detailed list of issues at such an early stage of the proceedings, allowing for greater flexibility as the case developed.  

A new default position under the 2026 Rules 

Under the 2026 Rules, Terms of Reference are no longer a necessary step in ICC proceedings, although arbitral tribunals retain the discretion to establish them where appropriate as a useful case management tool.  

This approach builds on the experience of the Expedited Procedure Provisions (EPP) introduced to the ICC Arbitration Rules in 2017, under which Terms of Reference are not mandatory. To date, the ICC Court has administered more than 1,000 cases under EPP, with fewer than 25 tribunals deciding to draw up Terms of Reference. 

Greater emphasis on early case management  

With this development, the Case Management Conference (CMC), which remains mandatory under Article 24 of the Rules and must be held within 30 days of the transmission of the file to the arbitral tribunal, has a more significant role. The procedural timetable – established at the initial CMC or as soon as possible thereafter – under the 2026 ICC Rules of Arbitration will be communicated to the ICC Secretariat (rather than to the ICC Court), while institutional monitoring will remain robust. In practice, the CMC becomes the central procedural milestone for structuring the proceedings and ensuring efficiency from the outset. 

Drawing on experience under the EPP, arbitral tribunals may wish to record, in Procedural Order No. 1 (PO1), key elements of the arbitration on which the parties have agreed. These may include, inter alia: “(i) the identification of the parties; (ii) confirmation of the tribunal’s jurisdiction; and (iii) the applicable law” (see ICC Toolkit for Arbitrators in Expedited Procedures). Depending on the circumstances of the case, additional elements may also be included. The ICC Secretariat is currently working on a model PO1 to assist arbitrators and parties in considering its various elements.  

It is also noteworthy that, following the initial CMC, no party may introduce new claims without the authorisation of the arbitral tribunal. Consequently, in the absence of mandatory Terms of Reference, parties may want to ensure that their claims are articulated as fully and as comprehensively as possible in Request for Arbitration and Answer and Counterclaim stages. 

In determining whether to authorise  for new claims introduced after the CMC, the tribunal shall take into account: (i) the nature of the new claims; (ii) the stage of the proceedings; (iii) any cost implications; and (iv) any other relevant circumstances. The express inclusion of cost implications as a relevant factor under Article 25 reflects the ICC Court’s continued emphasis on efficiency and cost-effectiveness. 

Finally, Article 34 of the 2026 Rules provides that the President of the ICC Court shall fix, or subsequently extend, the time limit for rendering the final award, taking into account: (a) the procedural timetable; or (b) a reasoned request from the arbitral tribunal. This replaces the longstanding default time limit of six months from the last signature of the Terms of Reference. In practice, that default time limit was rarely applied in standard ICC proceedings, as the Court typically fixes time limits aligned with the procedural timetable to grant parties greater predictability as to when the final award will be issued. 

Under the 2026 Rules, the authority to fix and extend time limits is vested in the President of the ICC Court, with a view to enhancing efficiency and strengthening oversight of proceedings timelines. In practice, most arbitrations will continue to operate under time limits aligned with the procedural timetable, as was already the prevailing approach under previous editions of the ICC Arbitration Rules. 

Overall, the changes outlined above reflect a move towards greater procedural flexibility, reduced formality and increased emphasis on efficiency – while preserving the tribunal’s discretion to draw up Terms of Reference where useful. 

This article forms part of ICC’s seven-part series breaking down key updates introduced by the 2026 ICC Rules of Arbitration. Discover all the updates of our revised 2026 Rules before entry into force on 1 June 2026.