2026 ICC Rules of Arbitration: In Conversation with Daniela-Olivia Ghicajanu

The revised ICC Rules of Arbitration 2026 came into force on 1 June 2026, applying to all Requests for Arbitration filed on or after that date. Ahead of the launch of the new Rules, Ciara Ros and Roxana Cioara had the opportunity to sit down (virtually) with Daniela-Olivia Ghicajanu, Deputy Expert Counsel at the ICC Secretariat to discuss the key changes and what they mean for practitioners and their clients.

The 2026 Rules represent a significant update to the previous 2021 iteration and introduce a number of changes that will affect how ICC arbitrations are structured, administered and run in practice. Among the most notable developments are the removal of mandatory Terms of Reference (TOR), the introduction of a new procedure, i.e. the Highly Expedited Arbitration Provisions, the official introduction in the rules of the Early Determination mechanism, an increase to the Expedited Procedure monetary threshold and new obligations around disclosures. These changes are intended to increase procedural efficiency and give parties greater flexibility in how arbitral proceedings are managed.

Freeths will be publishing an article setting out all of the major changes brought in by the 2026 Rules in the coming weeks. In the meantime, those wishing to review the changes in full can find a tracked comparison of the 2021 and 2026 Rules on the ICC's website.

Daniela: The amendment of the Rules reflects how the market evolved since the 2021. The main reasons for the changes were: (i) maintain ICC’s position as a global trusted arbitration institution; (ii) increase efficiency; (iii) ensure the changes accurately reflect the changes the Secretariat saw in practice; (iv) meet the evolving needs of all ICC arbitration users from states and state entities to private companies irrespective of their size; (v) provide clarity of the current practice. The need for a revision also came from the practice and the realisation there was a need for alignment. For the ICC the input of arbitration practitioners was and is extremely valuable.

Historically speaking, since 2012, we started to amend the rules every five years, not as an automatism, but due to these rapid changes we noticed in practice and how the disputes we managed evolved. Before 2012, the Rules were amended every ten years. The need to go, review and adapt came naturally considering that the practice and the ICC arbitration users’ expectation change since the last revision and one cannot, as much as one wants, even when one acts as the legislator in the country, anticipate everything. This is why we have the Rules, but we have also the Note as guidance for parties and tribunals. As you might have seen, what was sometimes in the 2021 Note has now its place in the 2026 rules. And on this occasion, I am also inviting you to read the 2026 Note to the Parties and Arbitral Tribunals.

Daniela: Well, they are not abolished altogether. They continue to be a case management technique alongside other techniques. In this sense, if the parties and the tribunal want to have them, they can have them. But they are not mandatory in the sense of a procedural step. Additionally, if I may add, originally, in many jurisdictions, the TORs were required to confirm the parties’ consent to arbitrate and nowadays this is not needed anymore.

The mandatory part is the Case Management Conference (CMC). And the change came because we saw in the EPP cases, in the over 1,000 EPP cases that we had,  that it plays well with or without TORs. It works for the parties to only have the Case Management Conference.

If the parties want to have those TORs, we are not blocking that. But it is just that we are not blocking the procedure from moving on by still imposing TORs, because as you know, when you had TORs, there were cases where one party was not participating or was using the sign-off of the TORs as a guerrilla tactic.

Daniela: It is also about procedural efficiency. Now you know that you have to be present at the CMC and you have to discuss. The tribunal needs to be sure that at the CMC everything is discussed and everything is on the record. Since it worked,  having only the CMC, but not TORs, for EPP cases, we decided, also listening to what the users of the ICC clause were telling us, that it should be good to provide the option to have them, but not impose them as mandatory. Also, when you have a very complicated dispute, construction, energy, 30 days are not enough, and you end up extending and extending and extending. It is more work on all three sides: the parties and the tribunal, because the tribunal can end up in a stressful deadlock with the CMC having taken place, but the parties cannot agree on the TORs. And on the other hand, the Secretariat has to extend the time limit for the TORs and the case cannot move forward.

In 30 days from the moment the file is transmitted to the tribunal, the CMC has to take place and everyone has to do their homework, coordinate and be very hands-on. The role of the CMC will increase for all arbitrations under the ICC Rule.

Daniela: We used to have this early determination possibility explained in the Note in 2021, but it was not in the Rules. So, for someone who was not experienced, or for someone who wants to use early determination as a real tactic, although very experienced, having it in the rules provides some legitimacy. In the 2026 revision of the ICC Rules, the core provisions which used to be described in the Note, have been moved into the Rules themselves, in response to the 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.

Having the Early Determination also helps to take out claims that might not have any legal basis or are speculative rather than waiting six months or a year until the hearing for the respective claims takes place.

Daniela: We wanted to offer the parties another service in addition to the EPP, because even for some disputes six months could be too long until you have a final award. HEAP is likely to be most suitable for: 

• Lower-complexity commercial disputes

• Claims with a simple factual matrix, or 

• A  distinct aspect of a dispute, which requires swift resolution – such as technology or sports-related disputes or purchase price adjustments

HEAP is not intended for procedurally complex disputes, but for parties who appreciate speed and proportionality.

Daniela: I think if this it is in the arbitration agreement, why not? At the end of the day, it is the parties' autonomy that both the Secretariat and the Court shall respect. This is why we left it broad,  when you read it in the rules, it is indeed quite broad. There is no value, there is no industry, there is no type of contract that you are bound to use it for, because it is not us who are imposing it on the parties. It is for the parties to decide and agree if they want to opt-in or not. And if they want to use it and describe it very well in the clause, they can. Or not in the clause,  maybe in an agreement afterwards. The parties can still choose an arbitrator specialist in their field or sector and as long as the dispute can be resolved in the time, with reduced submissions, witness and expert reports, no or reduced document production and potentially no hearing, parties can still use this procedure.

Daniela: There is already one such model clause on our website, ICC Highly Expedited Procedure Model Clause, along with the model clause for the normal ICC arbitration and the model clause for the EPP. The model clauses are currently in English and we will provide the translation of these model clauses in other languages along with the various translation to the Rules. I would like to add that the model clause is what we are suggesting, but of course the parties can use that or expand from it.

Daniela: The higher threshold for the EPP reflects the rising value of international commercial disputes and the confidence that businesses worldwide, as well as states and state entities have developed in streamlined ICC proceedings. We realised when we were collecting the data for the EPP Report which we published in January 2026, that the ICC registered EPP cases also above USD 3 million and they were very well handled and the awards were of good quality.

Also, the fact that a case starts automatically as an EPP case does not mean it has to stay there. You might have extensive document production, you might have two weeks of hearings, parties might want post-hearing submissions and the arbitrator might realise that actually the case should not be under the EPP and of course the Court can decide to take it out.

Daniela: This obligation formalises a structured mechanism through which parties can raise potential points to consider at an early stage, thereby promoting efficiency and reducing a risk of late-stage issues. Previously, the Secretariat was the rope holder identifying the specific relevant entities. Now the burden shifts to the parties, because they are the ones with the best knowledge of their corporate structure, who was involved in the negotiation of the respective contract, in the provision of the guarantee, and so on.

Of course, the Secretariat will also analyse the information included on the documents on the record and monitor the case — and we will be assisting the parties from the start of proceeding until the end. The lists provided by the parties will assist the arbitrator in their disclosure process and reduce any issues which might arise later on during enforcement or set-aside proceedings.

Daniela: Indeed, AI is not specifically mentioned in the 2026 Rules, but that does not mean the ICC is not focussing other efforts on considering AI. For example, the Commission on Arbitration and ADR has a Task Force on Artificial Intelligence in Dispute Resolution. This Task Force aims to offer practical guidance to arbitrators and parties and provide thought leadership on AI-driven innovation, while safeguarding fundamental principles in international dispute resolution. The Task Force is currently collecting data for the Survey on the use of AI in arbitration. I think that once the ICC Commission has issued its guidance on the use of AI then it would be a good opportunity for us to speak again about the AI topic within the ambit of the ICC Rules.

Daniela: Of course, everyone talks about no more TORs, this new Highly Expedited provision, the Early Determination. But I think what is underestimated is the more discrete changes aimed to have a more efficient procedure. For example, who takes now the financial decisions with respect to an ICC arbitration. As of 1 June 2026, all the financial decisions will be taken initially by the Secretary General with the financial costs of the arbitration being fixed by the Court. Not necessarily important for everyone, but the change is intended to bring more efficiency to the decision-making process.

Another thing people are not considering is the emergency arbitration provisional order, which a party can request on an ex parte basis,  it happened to be requested in practice, but now it is in the rules with the appropriate safeguards. And the new condition for emergency arbitration: any party for which the President is satisfied, based on information in the Application, that an arbitration agreement binding such party may exist, can now use the emergency arbitration mechanism, reflecting the reality of how practice and parties’ expectations have evolved since 2012.

And on arbitrator disclosure, now we mention it specifically in the rules, not only in the Note, that every doubt - if the arbitrator doubts whether to disclose or not - should go in favour of disclosure. Better to be exhaustive than miss a point and end up in something bigger.