The 2026 ICC Rules and the Optional Terms of Reference: End of an Era or Old Wine in a New Bottle?

The 2026 Arbitration Rules of the International Chamber of Commerce (“ICC”) (the “2026 ICC Rules”) (a broad overview of the 2026 rules has been highlighted elsewhere in the Blog) 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 very way a tribunal’s mandate is determined?

This post 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 (“PO1”), which brings in its wake an operational risk of its own: the ICC Secretariat’s model PO1, however useful as a starting template, risks encouraging a boilerplate approach that leaves tribunals under-tailoring PO1 to the dispute – a risk that becomes acute at the post-award stage, when courts scrutinise PO1 for the tribunal’s actual mandate.

The Terms of Reference: Function, Purpose and Practice

For over a century, the ToR served as an important tool through which the tribunal delimited the precise scope of its mandate (see Manuel Arroyo ed., Arbitration in Switzerland: The Practitioner's Guide, 2nd 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 ICC Rules. Accordingly, the parties negotiated the ToR intensely, in an attempt to resolve as many issues as possible, with remaining matters to be addressed during the CMC.

A Precedent Within the ICC’s Own Framework

Growing dissatisfaction with the ToR had long been 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 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 a ToR. Despite a substantial number of cases under those provisions, only a handful have prepared a full ToR (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 London Court of International Arbitration (LCIA), the Singapore International Arbitration Centre (SIAC), the Hong Kong International Arbitration Centre (HKIAC) and the Dubai International Arbitration Centre (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 ICC Rules preserve the tribunal's discretion to adopt a ToR where the circumstances warrant it (see the ICC Secretariat's Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration pt. III, § I, ¶ 2, at 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 case, thereby making the process more streamlined, time-efficient and less combative.

Rechristening the Terms of Reference?

Practitioners are already asking whether PO1 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 developing a model PO1 to assist arbitrators, a model whose 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 International Court of Arbitration (“ICC Court”) for approval. By contrast, PO1 is a product of the tribunal’s deliberations, not endorsed by the parties and not subject to the ICC Court’s scrutiny. That difference matters most at the post-award stage, where it shapes how the scope of the proceedings and the tribunal’s mandate can be challenged. For instance, in drawing up PO1, the tribunal either relies on memory or summarises the position of the parties – which may or may not capture the precise ambit of the reference the parties intended. This situation, which is not hard to contemplate, may lead to unnecessary or even controversial arguments and/or jurisdictional challenges before the post-award court by an unwanting party. If so, arguably, PO1 survives to do more harm than streamline. Naturally, the open question, then, is how this can be remedied at the outset.

Even so, tribunals are well-positioned to close the gap as they may use their case-management powers under Article 23(2) of the 2026 ICC Rules as described in the Secretariat's Note to invite “short written submissions” before or shortly after the initial CMC, setting out each party’s position on the scope of the dispute, jurisdictional reservations, and any possible amendments to the claim. The tribunal can then incorporate these positions into PO1. Although neither the 2021 nor the 2026 ICC Rules explicitly outline this process, the strength of the Secretariat’s Note acts as a possible safeguard tool for any post-award challenges.

Thus, the 2026 ICC 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 the initial CMC within thirty days of receiving the file, unlike the 2021 ICC Rules under which the CMC followed completion of the ToR. Without a deliberative stage, the initial CMC now bears primary responsibility for establishing the procedural roadmap.

Interestingly, the 2026 framework openly contemplates the need for further CMCs beyond the initial one (see the Secretariat's Note pt. III, § I, ¶ 6, at 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 ICC Rules maintains the substantive restriction but shifts the procedural trigger. After the initial CMC, no party may introduce new claims without the tribunal's authorization, assessed by reference to 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 that the tribunal must weigh in deciding whether to admit them. Practitioners should therefore frame their claims as comprehensively as possible from the outset and address the procedure for seeking authorization to amend expressly in PO1 before the need arises.

The Tribunal’s Greater Responsibility

The revised framework places a heavier obligation on the tribunal and turns a renewed spotlight on PO1. A well-prepared PO1 under the 2026 ICC Rules must now identify the parties and their claims, record any jurisdictional issues, set out the procedure for amendments, and specify the evidentiary framework. It is PO1 that will determine the scope of the claims submitted and define what may constitute a new claim—and, in turn, determine whether a post-award court can ascertain the tribunal's mandate from a single document. Where a case proceeds to set-aside or enforcement, that court will assess the record as a whole, including the transcript or minutes of the initial CMC, procedural orders, and correspondence concerning the scope of proceedings. An ambiguous or incomplete PO1 would not only recreate the uncertainty the ToR was designed to alleviate but also complicate the interpretation of the tribunal’s actions. That 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. The optionality of the ToR plainly reduces both time and cost, and the elimination of repetitive steps allows the tribunal to turn more directly to the merits, particularly in straightforward disputes.

However, the change is not without its own challenges. Parties may feel compelled to front-load potential claims to avoid complications after the initial CMC. PO1 may become a heavily negotiated document, with parties contesting 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 deems 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 PO1 accurately records jurisdictional reservations and the procedure for amendments, and maintain a detailed record of the initial CMC and subsequent procedural orders. In complex or high-value disputes, requesting a ToR under Article 23(2) of the 2026 ICC Rules may still provide valuable protection against later jurisdictional challenges.

Conclusion

The 2026 ICC 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 PO1 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. Albeit the ToR’s absence in letter, the spirit lingers, and its underlying objective remains attainable through careful advocacy and disciplined case management.