Arbitration and ADR
Unveiling the 2026 ICC Arbitration Rules, part 5: Early determination
The revised ICC Arbitration Rules enter into force on 1 June 2026. In this fifth article of our six-part series, we explore the introduction of provisions on early determination – a procedural tool designed to help arbitral tribunals dispose, at an early stage, of claims or defences that are manifestly without merit or manifestly outside their jurisdiction. By incorporating this mechanism directly into the ICC Arbitration Rules, ICC reinforces its commitment to assist parties with resolving disputes in a time and cost-effective manner.
Introducing early determination into the ICC Arbitration Rules
Early determination has long formed part of the ICC arbitral practice. Since October 2017, guidance on its use has existed in the Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration (the “Note”), with the understanding that entertaining or rejecting an application for early determination was a matter squarely within an arbitral tribunal’s remit.
In the 2026 revision of the ICC Rules, the core provisions described in the Note have been moved into the Rules themselves, in response to feedback from the global business community and to remove any remaining doubt about an arbitral tribunal’s power to use this tool in ICC arbitrations.
Article 30 of the 2026 Rules states:
- Any party may apply to the arbitral tribunal for the early determination of one or more claims or defences on the grounds that:
- such claims or defences are manifestly without merit; or
- such claims or defences are manifestly outside the arbitral tribunal’s jurisdiction.
- The arbitral tribunal shall determine in its discretion whether to allow the application to proceed. If the arbitral tribunal allows the application to proceed, it shall adopt the procedural measures it considers appropriate, after consulting the parties.
How to apply for early determination efficiently
For early determination to be effective, parties are expected to make an application as promptly as possible after the relevant claims or defences are filed. Because the procedure is designed to promote efficiency, an application made after submissions or document production may defeat that purpose by adding unnecessary time and cost.
In deciding whether to allow the application to proceed, the tribunal may consider all relevant circumstances, including:
- the stage of the proceedings, and
- the need to ensure time and cost efficiency.
If the arbitral tribunal allows the application to proceed, it shall promptly adopt the procedural measures it considers appropriate after consulting the parties. The responding party must be given a reasonable opportunity to respond.
In practice, arbitral tribunals have most often permitted early determination where they had to determine legal issues only, and where no, or very limited evidence was required; or where essential legal elements of the claim had not been pleaded by the party bringing the claim.
By contrast, arbitral tribunals have rejected early determination where resolving the matter would require substantial legal or factual analysis, including the assessment of more than limited evidence. This includes situations where the issue cannot be decided without giving the parties a full opportunity to present evidence, for example, where expert legal evidence is required to assess the validity of a contractual clause. Further evidence will therefore be allowed only exceptionally. This approach reflects the underlying logic of the procedure, which is that the claim or defence fails as a matter of law, even assuming the factual allegations underlying a claim or defence to be true.
The arbitral tribunal is expected to decide an application for early determination as promptly as possible, consistent with the nature of the Application. The decision may be in the form of an order or award. The appropriate form will depend on the content of the decision. The ICC Court would expect any decision by the arbitral tribunal which finally disposes of claims to be in the form of an award. The arbitral tribunal may wish to discuss the appropriate form of the decision with the parties in advance. For example, parties might agree that in the event the decision would not impinge on the merits, it could be made in the form of a procedural order. The parties may also agree that the ICC Secretariat should not inform them of the receipt or approval of a draft award, as per its usual practice, where that would indicate to the parties the outcome of the decision to be made by the arbitral tribunal.
In either case, the arbitral tribunal may decide on the costs of an application for early determination pursuant to Article 41 or reserve this decision for a later stage. The ICC Court will scrutinise any award made on such Application, typically within one week of receipt by the Secretariat.
Key takeaways
- Early determination is now expressly anchored in the 2026 ICC Arbitration Rules, reflecting established practice and reinforcing an arbitral tribunal’s authority to use this tool.
- The mechanism is designed to promote efficiency, allowing arbitral tribunals to dispose of claims or defences that are clearly untenable at an early stage in the proceedings.
- Arbitral tribunals retain broad discretion to decide whether an application should proceed and how it should be managed, while safeguarding due process.
- Timing is critical: applications should be made promptly to deliver the intended time and cost savings.
This article forms part of ICC’s six‑part series breaking down the key updates introduced by the 2026 ICC Rules of Arbitration. Discover all the updates of our revised Rules ahead of their entry into force on 1 June 2026.
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