THE AUTHORS:
Mayuri Tiwari Agarwala, Founder and Principal at MTA Legal
Elisha Vaswani, Associate at MTA Legal
Introduction
The 2026 ICC Rules of Arbitration came into force on 1 June 2026 (“2026 Rules”) and apply to arbitrations commenced on or after that date, unless the parties agree otherwise. The changes do not rewrite ICC arbitration. They modernise it by reducing procedural delay, requiring earlier case definition, expanding urgent relief, and strengthening disclosure, transparency and institutional control.
Key amendments include the “Highly Expedited Arbitration Provisions”, “Early Determination” procedures, and the replacement of mandatory “Terms of Reference” with an “Initial Case Management Conference.” These developments will materially influence arbitration clause drafting and case strategy. This article examines the principal changes, explains their practical implications, and brings relevant insights to the Indian context.
Emergency and Conservatory Measures
The 2026 Rules make four key changes to emergency arbitration: they expand its reach, widen the investment-dispute exclusion, narrow the emergency arbitrator’s threshold inquiry and permit ex parte orders.
First, emergency relief may now be sought against certain non-signatories. Under the 2021 Rules, it was available only against signatories and their successors. Appendix IV now permits an application where the ICC President is satisfied that an arbitration agreement binding the respondent may exist. This is a preliminary assessment; the tribunal retains final authority over jurisdiction and is not bound by the emergency arbitrator’s findings.
This is particularly relevant to parent companies, affiliates, promoters, guarantors and special-purpose vehicles involved in negotiating or performing contracts they did not sign. Although the Rules prescribe no test, guidance may be drawn from Dow Chemical v. Isover Saint-Gobain (ICC Case No. 4131), from which the group of companies doctrine emerged. The tribunal bound non-signatory Dow entities because their role in negotiating, performing and terminating the contracts showed a common intention to arbitrate; group membership alone was insufficient.
Indian parties may also be guided by Cox & Kings Ltd v. SAP India Pvt Ltd. 2023 INSC 1051, which held that a non-signatory may be treated as a party where the cumulative facts establish a mutual intention to arbitrate, particularly its relationship with the signatory, commonality of subject matter, the composite nature of the transaction, and its positive, direct and substantial role in negotiating, performing or terminating the contract. Mere group membership or commercial association is insufficient; consent must be proved through objective evidence.
Singapore courts adopt a stricter consent-based approach. In Manuchar Steel Hong Kong Ltd v. Star Pacific Line Pte Ltd [2014] SGHC 181, the High Court held that an award cannot be enforced against a non-signatory merely because it forms part of the same economic group. Singapore law preserves separate corporate personality, with veil piercing confined to exceptional cases involving abuse.
Second, the investment-dispute exclusion is wider. The 2021 Rules excluded treaty-based emergency arbitration; the 2026 Rules extend this to arbitration agreements arising from treaties or investment-protection laws, including domestic investment legislation.
Third, the emergency arbitrator’s mandatory inquiry is narrower. While the 2021 Rules required determinations on both jurisdiction and admissibility, the 2026 Rules require only a determination of jurisdiction. This prevents urgent applications from becoming broader disputes over contractual preconditions, timing or admissibility. However, those issues may still be raised where relevant and remain for determination by the tribunal in ordinary ICC proceedings.
Fourth, the Rules introduce an ex parte preliminary-order mechanism, similar to the Protective Preliminary Order regime under the 2025 SIAC Rules (Schedule 1, paragraphs 25–34). A party may seek, without notice, an order preventing conduct that could frustrate its emergency application. Once decided, the other parties are notified and, if granted, given a reasonable opportunity to respond before the order may be modified. Unlike SIAC, the ICC prescribes neither a 24-hour decision deadline nor a fixed expiry period. The mechanism is useful where notice could prompt asset dissipation or destruction of evidence.
Heightened Efficacy: Expedited Procedures & Early Determination of Claims
Expedited Procedures
The Expedited Procedure already existed; the principal change is a higher automatic threshold. For arbitration agreements concluded on or after 1 June 2026, it applies by default to disputes up to US$4 million, unless the parties opt out or the ICC Court finds it inappropriate. Earlier thresholds remain US$2 million for agreements concluded from 1 March 2017 to 31 December 2020, and US$3 million for those concluded from 1 January 2021 to 31 May 2026.
The increase is significant: ICC’s 2025 statistics show that 41% of cases involved amounts not exceeding US$4 million, bringing many more disputes within the expedited track. Unless the Court decides otherwise, such cases proceed before a sole arbitrator, with a case management conference within 15 days and an award within six months of that conference. The tribunal may limit document production, dispense with hearings or witnesses, and decide the case on documents alone.
Parties should assess complexity, not value alone. Routine payment, supply or services disputes may suit the Expedited Procedure, while technically complex construction, infrastructure, energy or shareholder disputes may require fuller evidence, expert testimony or a three-member tribunal. In such cases, parties should consider an express opt-out.
Highly Expedited Arbitration Provisions
The 2026 Rules introduce a new form of expedited procedure, by virtue of the Highly Expedited Arbitration Provisions (“HEAP”) (Article 33 and Appendix VI). Unlike the ordinary Expedited Procedure, HEAP is available only by express party agreement, and is designed for disputes capable of being resolved on a compressed timetable: a sole arbitrator, an initial case management conference within seven days of file transmission, and a final award within three months of that conference.
HEAP is best suited to discrete, document-driven disputes, including unpaid invoices, liquidated debt claims, straightforward supply or price-adjustment disputes, and limited questions of contractual interpretation. Parties should opt in when contracting, as post-dispute agreement may be difficult. HEAP is generally unsuitable for multi-party disputes, construction delay claims, fraud allegations, technically complex matters or cases requiring extensive factual or expert evidence.
Early Determination
Although ICC tribunals have long relied on their procedural powers to dispose of plainly unmeritorious claims, Article 30 now expressly codifies the power to determine claims or defences that are manifestly without merit or manifestly outside the tribunal’s jurisdiction. If the tribunal allows the application to proceed, it then determines the appropriate procedure after consulting the parties.
The threshold is intentionally high. The mechanism is best reserved for claims plainly barred by the arbitration agreement, limitation, waiver or contractual exclusion, rather than disputes requiring contested evidence or expert opinion. Used properly, it can dispose of hopeless claims early; used indiscriminately, it may create a costly satellite dispute.
Removal of Mandatory Terms of Reference
The 2021 Rules required Terms of Reference, a distinctive ICC mechanism defining the parties, claims, relief sought and key issues. Under the 2026 Rules, Terms of Reference are no longer mandatory, although the tribunal may establish them where appropriate. Article 24 instead requires an initial case management conference within 30 days of the tribunal receiving the file and a procedural timetable at or as soon as possible after that conference. Early case definition therefore shifts to the initial conference.
Article 25 reinforces this shift: after the initial conference, new claims require the tribunal’s authorisation, assessed by reference to their nature, the procedural stage, cost implications and other relevant circumstances. Parties must therefore identify claims, counterclaims, related contracts, limitation issues, necessary parties and core evidence before the first conference, as later expansion of claims will be more restricted.
Enhanced Disclosure, Funding Transparency and Confidentiality
The 2026 Rules strengthen the ICC’s disclosure regime. Arbitrators remain subject to continuing duties of independence, impartiality and disclosure, with doubts resolved in favour of disclosure. Disclosure alone, however, does not establish a lack of independence or impartiality.
Article 12(5) requires parties, at the outset, to provide a reasoned list of persons and entities relevant to conflict checks. This aligns with General Standard 7 of the 2024 IBA Guidelines, which requires parties to disclose relevant relationships and undertake reasonable enquiries. Conflict checks should also cover repeat appointments by a party, affiliate, counsel or law firm under Orange List items 3.1.3 and 3.2.8.
For Indian parties, the value of this requirement is best illustrated by MSA Global LLC (Oman) v. Engineering Projects (India) Ltd., 2026 DHC 3216, where a co-arbitrator failed to disclose a prior appointment involving MSA’s chairman and the same counsel. The Delhi High Court held that the conscious non-disclosure met the public-policy threshold under Section 48 of the Arbitration and Conciliation Act, 1996, and refused enforcement.
Indian parties should therefore consider Fifth Schedule entries 20–24 and 29 on prior services, repeat appointments and related arbitrations, and Seventh Schedule relationships triggering ineligibility under Section 12(5) of the Arbitration and Conciliation Act, 1996. Conflict lists should identify group entities, controllers, funders, insurers, counsel and prior appointments; confidentiality clauses should cover pleadings, evidence, hearings and awards. Article 12(6) requires prompt disclosure of the existence and identity of any third-party funder with an economic interest in the outcome. Article 12(8) separately imposes an express confidentiality obligation on arbitrators, subject to limited exceptions, including where information is public, or disclosure is legally required. The Rules impose no equivalent obligation on parties unless separately agreed.
Tribunal Continuity, Digital Procedure and Award Administration
The 2026 Rules continue the ICC’s move towards digital and flexible procedure. Article 3 makes electronic communication with the Secretariat the default, subject to limited exceptions. Hearings, case management conferences and deliberations may be conducted in person, remotely or in hybrid form. Article 38 permits electronic signature and notification of awards where appropriate.
Article 16(5) introduces a continuity rule. This is an interesting change under which the ICC may allow the remaining arbitrators to continue instead of reconstituting the tribunal where an arbitrator dies or is removed after the last hearing or filing of the final substantive submissions (whichever is later).
Article 44 formally regulates tribunal secretaries. After consulting the parties, the tribunal may appoint a secretary to work under its direction and control, but may not delegate decision-making authority. Before appointment, the secretary must satisfy the same independence, impartiality and confidentiality requirements as arbitrators and sign the prescribed statement.
Finally, Article 37(3) strengthens award scrutiny by requiring the ICC Court, so far as practicable, to consider the award’s validity and enforceability and the requirements of mandatory law at the seat. This reinforces enforceability as a core institutional objective.
Conclusion
The 2026 ICC Rules mark a deliberate shift from procedural formality towards earlier case definition, differentiated procedural tracks and stronger institutional control. The removal of mandatory Terms of Reference, introduction of HEAP and early determination, expansion of emergency relief, enhanced disclosures, regulation of tribunal secretaries and closer scrutiny of enforceability seek to improve efficiency and procedural integrity.
The ICC has preferred flexibility over prescription. The reforms provide a stronger procedural toolkit, but not a substitute for careful drafting and disciplined case management. Their success will depend on whether parties, tribunals and the ICC use that flexibility to achieve proportionate, efficient and enforceable outcomes. Arbitration strategy should therefore begin before a dispute arises. For example, parties should consider whether to opt into HEAP, opt out of the Expedited Procedure where appropriate, align dispute-resolution clauses across related agreements and address confidentiality at the contract drafting stage itself.
ABOUT THE AUTHORS
Mayuri Tiwari Agarwala is an arbitration and disputes lawyer with over 15 years of experience in international and domestic arbitration, complex commercial litigation and public international law. She regularly represents clients in institutional (SIAC, ICC, LCIA, AAA-ICDR and MCIA Rules) and ad hoc arbitrations across multiple jurisdictions and has previously held Partner roles at leading Indian law firms and the SIAC Secretariat. She also serves on the Executive Committee of the Arbitration Bar of India and acts as an Arbitrator.
Elisha Vaswani is an India-qualified lawyer practising in international and domestic arbitration, commercial litigation and arbitration-related court proceedings. She also works on investigations, and represents clients in white-collar disputes and matters before the Economic Offences Wing in India. She previously worked at Bharucha & Partners and served as a Law Clerk-cum-Research Associate to Hon’ble Justice Hrishikesh Roy at the Supreme Court of India.
*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.
