THE AUTHORS:
Khushboo Kataruka, Partner at Hammurabi & Solomon Partners
Sanjana Sachdev, Senior Associate at Hammurabi & Solomon Partners
Nikita Sharma, Associate at Hammurabi & Solomon Partners
Introduction
The ICC Arbitration Rules 2026 (“2026 ICC Rules”) are designed to address the three criticisms most frequently levelled at arbitration. It is too slow, expensive, and vulnerable to procedural gamesmanship. With the new 2026 reforms, the ICC has restructured the arbitration process around earlier case management, greater tribunal control, and faster procedural pathways. The success of these reforms will depend less on the new rules themselves and more on how aggressively tribunals use the powers they now have.
Construction disputes are defined by three structural features. Firstly, they are evidence-led and not law-led. This means that outcomes turn less on controversial legal doctrine and more on dense factual records, programme updates, RFIs, site instructions, daily logs, inspection reports, payment applications, and variation accounts. Secondly, claims are rolling and mutating over the life of the project where delay, disruption, and quantum positions shift as the critical path evolves, and as-built data and expert analysis emerge. Landmark construction disputes demonstrate how the real contours of the case only become visible once this evidentiary and expert infrastructure is in place. Thirdly, construction projects are executed through multi‑party contractual chains, employers, main contractors, subcontractors, suppliers, joint ventures, guarantors, and insurers, so that a single project event can generate interlocking claims across several contracts and arbitration agreements.
By way of this article, the authors examine how the 2026 ICC Rules interact with these characteristics of construction disputes. The article does not offer a general commentary on the Rules; instead, it asks a narrow yet sector‑specific question: where do the new tools for speed and tribunal control genuinely assist in managing construction arbitrations, and where do they risk distorting fact‑heavy, evolving, multi‑party cases?
Abolition of Terms of Reference
Perhaps the most significant change to the 2026 ICC Rules is the removal of required Terms of Reference (“TOR”). The TOR was the main tool used under the 2021 framework to limit new claims and define the extent of the dispute. According to Articles 24 and 25 of the 2026 Rules, the tribunal’s case-management authority is transferred to the initial Case Management Conference (“CMC”). This is a transfer of procedural control from a formal filing exercise to an active hearing, and it only increases efficiency if the tribunal genuinely employs Article 25 and Article 23(1) – (2) to regulate scope early rather than just re-labelling the same delay in a different way.
In construction arbitration, this shift is both justified and risky. It is justified because construction disputes rarely crystallise neatly at the outset. Delay, extension of time, variation and quantum positions often only harden after the critical path analysis, contemporaneous records and expert reports are exchanged. The difficulties associated with early crystallisation of claims are exemplified by Walter Lilly & Co Ltd v Mackay [2012] EWHC 1773 (TCC), where a major construction dispute generated over 32,000 pages of documents, nine factual witnesses, and eight experts. Describing the matter as a “full-blooded conflict” involving “hundreds of issues,” the court highlighted the inherently evolving nature of complex construction disputes, underscoring why rigid procedural mechanisms requiring early and exhaustive definition of claims may prove artificial and inefficient. In Obrascon Huarte Lain SA v Attorney General for Gibraltar (“OHL v Gibraltar”), [2014] EWHC 1028 (TCC), a road-and-tunnel project intended to last two years was terminated after more than two and a half years, with only a quarter of the works completed. The dispute centred on contamination, redesign, and foreseeability issues that emerged through ongoing technical and expert investigation, illustrating why the full scope of construction claims often cannot be defined at the outset. This supports the ICC 2026 shift away from a TOR-centred framework towards more flexible case management through the CMC.
A possible concern might be the new ICC Rules simply shifting disputes regarding the scope of arbitration from the TOR to the CMC. If the CMC is treated as a routine meeting instead of a stage where the scope of the case is settled, similar issues may continue to arise. Furthermore, since the Tribunal will no longer define the scope for the parties, they must come prepared with a clear claim, a practical timeline, and a firm view on what can and cannot be changed later. While this may make the process faster, it may not always be fair. Parties with better preparation, stronger records, and more resources will have an advantage, while smaller contractors and subcontractors may find it difficult to keep up.
Early Determination
The 2026 ICC Rules authorise the early dismissal of claims or defences that are “manifestly” without merit or “manifestly” outside the tribunal’s jurisdiction. The changes become valuable in construction disputes, where jurisdictional objections frequently arise from complex contractual structures involving employers, EPC contractors, subcontractors, consortium members and guarantors. A respondent may argue that it never signed the arbitration agreement, that the claim arises under a different contract, or that a non-signatory has been improperly joined. In such circumstances, requiring parties to proceed through document production, expert evidence and a full merits hearing before determining whether the tribunal has jurisdiction can impose substantial and unnecessary costs. Article 30 provides a mechanism for addressing such defects at an earlier stage where the jurisdictional objection is manifestly clear.
Early determination, however, should not be romanticised. In construction disputes, many apparently weak claims are fact-dependent. Delay, disruption and concurrency claims in construction arbitration are rarely capable of summary disposal because they typically depend on expert delay analysis, project records and contested factual evidence. This is particularly significant in the construction industry where parties often advance extensive pleadings, multiple heads of claim and large evidentiary records to strengthen settlement leverage. A lower threshold for early determination would therefore risk creating additional procedural disputes rather than eliminating unmeritorious claims.
Expedited Procedure: Heap And the Limits of Speed
The increase of the Expedited Procedure threshold from US$3 million to US$4 million is sensible for many mid-value disputes, but construction disputes are driven by complexity rather than value. A US$3.5 million claim may still involve delay analysis, variations, and extensive expert evidence, creating a risk that technically complex cases are channelled into an overly streamlined process.
Highly Expedited Arbitration Provisions (“HEAP”) introduced in Article 33 and Appendix VI of the 2026 ICC Rules go much further. It is an opt-in model with no monetary threshold, providing for a sole arbitrator, compressed pleadings, restricted evidence, limited or no hearing, and an award within three months of the initial CMC. Its strongest application in construction lies in the expedited enforcement of FIDIC DAB/DAAB decisions that are “binding but not final”. A three-month HEAP award converting a DAB decision into an enforceable award is a genuinely novel contribution. However, HEAP may not suit infrastructure disputes involving prolonged project execution, multiple variations, extension-of-time claims, and competing factual and expert evidence. Further, HEAP excludes joinder and consolidation, a significant limitation in multi-party construction disputes involving contractors, subcontractors, employers, guarantors, or joint venture entities.
Accordingly, while HEAP may be effective for discrete payment, notice, or dispute board enforcement disputes, parties should carefully define its scope or consider opting out where disputes are likely to involve multiple parties or complex factual issues.
Emergency Arbitration
The emergency arbitration reforms introduced in Appendix IV of the 2026 ICC Rules speak directly to the realities of construction disputes. While parties that are signatories to the arbitration agreement were already entitled to seek emergency relief, the 2026 ICC Rules significantly expand this regime by extending it to any party for which the President is satisfied that an arbitration agreement binding such party may exist (Appendix IV, Article 1(2)(c)). This reform is particularly significant in the construction sector, where disputes frequently involve subcontractors, employers, guarantors, joint venture entities, and other participants whose status as parties to the arbitration agreement may itself be contested. Coupled with the power to grant preliminary orders without notice (Article 7(1), Appendix IV), the amendments reduce the risk of procedural delay being used as a strategic weapon and provide a realistic avenue for obtaining urgent protection before irreparable harm occurs. However, emergency relief is only as effective as the legal framework available for its recognition and enforcement.
In jurisdictions, especially where the court’s support is still needed for practical effect, the order is not self-executing. So, the new rule helps at the front end, but it does not solve the enforcement problem.
Disclosure
The disclosure reforms are more understated, but they are important in large construction cases. Article 12 of the 2026 ICC Rules now pushes both arbitrators and parties toward earlier and fuller disclosure. Arbitrators must resolve doubts in favour of disclosure during the arbitral proceedings on an ongoing basis. Parties must provide lists of persons and entities relevant to potential conflicts. Third-party funding must also be disclosed. In construction arbitrations, this is a structural response to complexity. Large projects often involve affiliates, shareholders, funders, insurers, and overlapping corporate groups. The old system relied too much on the arbitrator to identify the full web of relationships. That is unrealistic in modern construction disputes. The new rules force the parties to carry some of that burden, reducing challenges at a later stage, which are especially destructive because they often waste months of proceedings. The reform is therefore useful, but it also creates a new tactical space. Parties may now weaponise omissions. If the disclosure list is too narrow, challenges will follow. The same logic applies to the rules on confidentiality, electronic communications, tribunal secretaries, truncated tribunals, and award timing. These are not headline reforms, but they are part of the same philosophy.
Conclusion: Drafting as the New Front Line
The ICC is reducing procedural friction where it can, and formalising what had already become normal practice. For instance, electronic filing is now the default. Arbitrators have an express confidentiality duty. Tribunal Secretaries are regulated. The President now fixes the time limit for the final award by reference to the procedural timetable, rather than by a rigid six-month rule tied to the TOR. Together, they show that the ICC’s real objective is to make procedure less ceremonial and more managerial. These, however, will require the tribunals to be more active, not less. A passive tribunal under the 2026 ICC Rules will produce delay in a different form.
Furthermore, with the disappearance of mandatory TOR and the expansion of expedited and highly expedited tracks, the front-line shifts to contract drafting. Parties must decide, upfront, whether to:
- opt out of the Expedited Procedure for technically complex disputes, notwithstanding moderate quantum;
- exclude or tightly define the scope of HEAP, confining it, if at all, to narrow, documentary issues;
- integrate emergency arbitration expressly with bond, guarantee, and security documentation; and
- anticipate how multi‑party and multi‑contract structures will be managed within the ICC framework, given the likely need for consolidation or coordinated proceedings.
For construction projects, these are no longer peripheral boilerplate choices. They determine whether the 2026 reforms will support, or distort, the resolution of disputes that are inherently document‑heavy, evolving, and structurally multi‑party. In that sense, the decisive moves in the next generation of construction arbitrations will be made not in the first case management conference, but in the arbitration clause that the parties settle before a spade ever hits the ground.
ABOUT THE AUTHORS
Khushboo Kataruka is a Partner heading the East India practice at Hammurabi & Solomon Partners. With over a decade of expertise in commercial disputes and arbitration, she advises major corporate and public sector clients on complex EPC contracts, energy disputes, property, and regulatory litigation.
Sanjana Sachdev is an Indian-Qualified Lawyer and currently a Senior Associate at Hammurabi & Solomon Partners, New Delhi specializing in arbitration matters with a specific focus on infrastructure disputes. She pursued her LL.M. in Transnational Arbitration & Dispute Settlement (“TADS”) from Sciences Po Law School, Paris, and has previously worked with Clyde & Co. Paris (International Arbitration Team).
Nikita Sharma is an Associate at Hammurabi & Solomon Partners, where her practice focuses on arbitration and commercial litigation. She holds an undergraduate law degree from Symbiosis International University. She is a member of the Young SIAC Practitioners Group (“YSIAC”), the LCIA Young International Arbitration Group (“YIAG”), the American Bar Association, and the International Arbitration and Mediation Centre, Hyderabad.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
