THE AUTHORS:
Ayan De, Partner at AKS Partners
Sarthak Arora, Senior Associate at AKS Partners
The ICC Rules 2026 introduced one of the most significant procedural changes in the institution’s history by making the Terms of Reference (“ToR“) optional. Although presented as a procedural reform, the change raises a deeper question. Has the ICC merely removed an administrative step, or has it fundamentally altered the manner in which the Tribunal’s mandate is to be determined? This article argues that the reform is evolutionary rather than revolutionary. The ToR’s core functions have largely shifted to the Initial Case Management Conference (“CMC“) and Procedural Order No. 1 (“PO-1“), shifting greater responsibility to tribunals and creating new practical considerations for parties, particularly at the post-award stage.
The Terms of Reference: Function, Purpose and Practice
For over a century, the ToR has been an important tool for delimiting the precise scope of the arbitral tribunal’s mandate (See, Manuel Arroyo, ‘Arbitration in Switzerland: The Practitioner’s Guide’, ed., 2d ed. 2018, p. 2325). Once signed, the parties were restricted from introducing new claims unless allowed by the Arbitral Tribunal under Article 23(4) of the 2021 Rules. Accordingly, the parties deliberated intensely to prepare the ToR in an attempt to resolve as many issues as possible, with remaining matters to be addressed at the CMC.
A Precedent Within the ICC’s Own Framework
The growing dissatisfaction with the ToR was evident. Some regarded it as redundant in light of the existing CMC and procedural order framework (See, Vijaya Kumar Rajah, ‘W(h)ither Institutional Terms of Reference?’ (2022) 39(2) Journal of International Arbitration 163), while others viewed it as an “antiquated relic” with no tangible benefits (See, Andrea Carlevaris, ‘Who (Still) Needs Terms of Reference?’ 2019 Les Cahiers de l’Arbitrage 369, 384). These prevailing sentiments were a major driver of reform, yet the 2026 changes were not without precedent. The ICC had already piloted a ToR-free model through its Expedited Procedure Provisions introduced in 2017, under which tribunals were not required to establish/prepare a ToR. Despite more than 1,000 cases proceeding under those provisions, only approximately 25 tribunals prepared a full ToR, a figure that speaks for itself (See, Claudia Salomon, ‘New ICC Rules of Arbitration enhance efficiency, clarity and usability‘). The reform is neither unprecedented nor radical. Several leading arbitral institutions, including the LCIA, SIAC, HKIAC and DIAC, have long operated without an equivalent mechanism, while U.S. arbitration practice similarly relies on procedural orders and case management rather than a formal ToR. The 2026 Rules preserve the tribunal’s discretion to adopt a ToR where the circumstances of a particular case warrant it (See, ICC Note to Parties and Arbitral Tribunals on the Conduct of ICC Arbitration, Part III, Section I, para. 2, p. 42). That discretion is an essential safeguard as the ICC’s aim is not to eliminate the functions historically performed by the ToR, but to remove the obligation to prepare one in every arbitration, thereby making the process more streamlined, time-efficient, and less combative.
Rechristening the Terms of Reference?
A question that practitioners are already asking is whether PO-1 has effectively become the ToR, albeit under a different label, a rechristening rather than a genuine structural departure. Drawing on its experience under the Expedited Procedure Provisions (“EPP”), the ICC Secretariat is currently developing a model PO-1 to assist arbitrators, a model which, by its very existence, illustrates the gap left by the removal of the ToR. However, there is a crucial structural difference. The ToR was a bilateral instrument negotiated and signed by the parties and submitted to the ICC Court for approval, whereas PO-1 is a product of the Tribunal’s deliberations and is not endorsed by the parties. As a result, there is a significant difference in how the scope of work and the mandate of the arbitrators can be challenged by the parties at the post-award stage regarding the ToR versus PO-1, as well as for other related issues. PO-1 closely resembles the ToR in content but differs significantly procedurally. Unlike the ToR, PO-1 is not approved by the ICC Court, meaning it does not follow the same rules/scrutiny.
Despite the nuanced difference, tribunals are well-positioned as they may use their case-management powers (Article 23(2) of the Rules) to invite “short written submissions” before or shortly after the Initial CMC. These submissions can outline each party’s position on the scope of dispute, jurisdictional reservations, and any possible amendments to the claim. The tribunal can then incorporate these positions into PO-1. Although the 2021 or 2026 Rules do not explicitly outline this process, the strength of Article 23(2) acts as a possible safeguard tool for any post-award challenges.
Thus, the 2026 Rules place much greater emphasis on the Initial CMC as the mechanism for establishing the parameters of the proceedings. Article 24 requires the Tribunal to hold an Initial CMC within thirty days of receiving the file, unlike the 2021 Rules, under which the CMC followed. Without a deliberative stage, the Initial CMC now bears primary responsibility for establishing the procedural roadmap. Interestingly, the 2026 framework has openly contemplated the need for further CMCs beyond the initial one (See, ICC Note to Parties and Arbitral Tribunals on the Conduct of ICC Arbitration, Part III, Section I, para. 2, p. 42-43). While a single CMC session may suffice in many cases, this is less likely in very complex or contentious arbitrations. Additional CMCs inevitably generate further procedural correspondence, increased costs, and greater scope for procedural disagreement.
New Claims Without a ToR
With the removal of the ToR, managing new claims presents a significant challenge. Article 25 of the 2026 Rules maintains the substantive restriction but alters the procedural trigger. After the Initial CMC, no party may introduce new claims without the tribunal’s authorisation, based on the nature of the claim and other relevant factors. To promote efficiency and prevent the introduction of frivolous claims, the ICC has explicitly included “cost implications” as a statutory consideration for the Tribunal’s final decision regarding newly introduced claims.
The Tribunal’s Greater Responsibility
The revised framework places a higher obligation on the Tribunal and a renewed spotlight on PO-1. A well-prepared PO-1 under the 2026 ICC Rules will now have to identify the parties, their claims, jurisdictional issues, procedure for amendments, and specify the evidentiary framework. The PO-1 will determine the circumference of the claims submitted and what constitutes a new claim, and whether a post-award court can readily determine the tribunal’s mandate from a single document. Where a case proceeds to set-aside or enforcement, that court will assess the record, including the transcript or minutes of the Initial CMC, procedural orders, and correspondence concerning the scope of proceedings. An ambiguous or incomplete PO-1 would not only recreate the uncertainty the ToR was designed to alleviate but also complicate the interpretation of the tribunal’s mandate. This requisite discipline must come from the arbitrators themselves.
Efficiency Gained, Certainty at Stake?
The central question is whether the ICC has traded procedural certainty for procedural efficiency. Our view is that the ICC has indeed done so but with prudential temperance. Evidently, the ToR’s optionality reduces both time and cost. Naturally, the elimination of repetitive steps allows the tribunal to smoothly turn to substantive merits, particularly in straightforward disputes. However, it is not without its own challenges; parties may feel compelled to front-load potential claims to avoid complications after the Initial CMC. PO-1 may become a heavily negotiated document with parties locking horns on what claims form part of the dispute. Therefore, post-award proceedings touching upon the tribunal’s mandate may become contentious. Yet, the ICC retains a significant safety net by vesting the Tribunal with discretion to adopt a ToR if it sees fit, and many arbitrators, more comfortable in a ToR environment, are likely to do so in complex disputes.
Practical Recommendations
Practitioners should therefore formulate claims comprehensively from the outset, ensure that PO-1 accurately records jurisdictional reservations and the procedure for amendments, and maintain a detailed record of the Initial CMC and subsequent procedural orders. In complex disputes, a party may still be well advised to request that the tribunal exercise its case management discretion under Article 23(2), which the ICC Note to Parties expressly recognises, even though the 2026 Rules no longer provide formally for ToR. This remains a prudent safeguard against later jurisdictional challenges.
Conclusion
The 2026 ICC Arbitration Rules mark a significant shift towards tribunal-led case management in the pursuit of procedural efficiency. Rather than eliminating the ToR’s core functions, the reforms redistribute them between PO-1 and the Initial CMC, placing greater responsibility on tribunals to define the scope of the arbitration with precision from the outset. Whether this model delivers, particularly in complex, high-value disputes, will ultimately be tested in practice. Although the ToR’s absence in letter, the spirit lingers, and its underlying objective remains attainable through careful advocacy and disciplined case management by tribunals.
ABOUT THE AUTHORS
Ayan De is a Partner and Head of International Arbitration at AKS Partners, a Delhi-based super-speciality disputes boutique. A King’s College London alumnus, he advises and represents public and private parties and sovereigns in high-value cross-border disputes under major institutional rules, including ICSID, SCC, LCIA, ICC, and UNCITRAL, spanning the oil and gas, energy, construction, and telecom sectors. Prior to joining AKS Partners, he practised at a tier-1 Indian law firm before moving to London, where he worked at two leading international law firms across international arbitration and public international law.
Sarthak Arora is a Senior Associate at AKS Partners. He is a lawyer specialising in arbitration and commercial disputes, with experience in complex domestic and international matters. His practice focuses on commercial, construction and infrastructure disputes, with a particular interest in arbitration law, procedure and emerging developments in the field. He has advised and represented clients across various stages of arbitral proceedings and regularly engages in research and writing on contemporary issues in international arbitration.
*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.
