The ICC Rules 2026 and the Decline of Terms of Reference

The 2026 International Chamber of Commerce (“ICC”) Rules of Arbitration (the "2026 Rules", already discussed here) mark a quiet but significant procedural shift by removing the mandatory Terms of Reference ("ToR") in standard arbitral proceedings. Although presented as an efficiency-driven reform, the amendment fundamentally reshapes how arbitral procedure is organised in practice, moving procedural control away from a single constitutive document prepared at the outset towards continuous tribunal-led case management throughout the proceedings.

While the reform does not alter the substantive standards governing new or additional claims, it changes how the procedural framework is established and adapted as the arbitration progresses. In doing so, the 2026 Rules bring the ICC into closer alignment with a broader institutional trend away from fixed procedural milestones and towards iterative case management centred on tribunal discretion.

From Terms of Reference to Early Procedural Structuring

Under the previous ICC framework, the ToR served two core functions. First, they marked the formal transition from tribunal constitution to the merits phase. Second, they operated as a procedural reference point against which later developments, such as amendments, joinder, and additional claims, were assessed.

This structure promoted early procedural discipline and clarity. However, it also created friction at the outset of proceedings. Negotiating the ToR could become a contested exercise in defining the procedural and substantive scope of the arbitration, sometimes delaying substantive case management. In practice, the ToR could also generate subsequent procedural disputes where parties disagreed over the extent to which later claims, arguments, or procedural developments fell within its originally defined scope.

The 2026 Rules remove this mandatory step in standard proceedings. Procedural structure is therefore no longer crystallised in a single document agreed at the outset. Instead, it is expected to emerge progressively through early Case Management Conferences (“CMC”) and a sequence of procedural orders.

In practical terms, the reform changes how disputes are framed procedurally. Under the previous regime, much of the procedural framing exercise occurred during negotiation of the ToR, often requiring parties to agree on a consolidated statement of claims and issues before substantive case management could begin. Under the 2026 Rules, that framing function is redistributed: parties present their positions through the Request for Arbitration and the Answer, while the tribunal progressively constructs the procedural framework through tailored directions under Article 25.

Under the substitute mechanism, namely the CMC, the removal of mandatory ToR may nevertheless give rise to certain challenges. A CMC, however, effectively conducted, remains a procedural event rather than a durable written instrument capable of accompanying the arbitration throughout its course. In the absence of an obligatory consolidated document, procedural continuity may be affected as proceedings evolve, particularly in complex or evolving disputes where claims, arguments, and procedural requests are progressively refined. Without a single written point of reference, procedural understandings may become dispersed across procedural orders, submissions, and communications, gradually undermining coherence as procedural steps accumulate. Over time, reconstructing what has been agreed, clarified, or delimited at earlier stages may become less straightforward.

These challenges may be particularly pronounced in arbitrations involving parties from different legal traditions, where shared procedural assumptions cannot be taken for granted. The ToR traditionally performed a stabilising function by providing a common procedural framework that aligned expectations at an early stage and reduced the potential for interpretative divergence as the proceedings progressed. While the CMC may achieve a similar initial alignment, it does not provide the same enduring documentary framework through which that alignment can be maintained throughout the arbitration.

This does not suggest that the absence of ToR will necessarily diminish procedural effectiveness. Rather, it reflects a shift in how procedural coherence is achieved. Whether the removal of the ToR ultimately enhances procedural efficiency without compromising procedural coherence and predictability will depend largely on the tribunal's ability to exercise active procedural management, issue clear procedural directions, and maintain a clear and predictable procedural structure as the arbitration evolves.

Continuous Case Management and the Centrality of the CMC

With the removal of the ToR, the CMC assumes a structuring role. Rather than functioning merely as a preliminary organisational step, the first CMC becomes the primary forum for shaping the procedural framework, including timetabling, evidentiary organisation, document production, and efficiency measures.

Procedural organisation accordingly shifts from a single foundational instrument to an evolving sequence of tribunal directions. Arbitration becomes less a staged process anchored by an early procedural document and more a continuing exercise of tribunal decisions throughout the case.

This shift also increases the importance of early engagement with the tribunal. In practical terms, the first CMC assumes much of the organisational function historically associated with the ToR. Parties who do not come to the first CMC with a clear procedural vision risk ceding ground to the tribunal’s own framing of the case.

The reform therefore reflects a broader trade-off increasingly visible in institutional arbitration: greater procedural flexibility, but also greater reliance on tribunals to manage procedure consistently and to preserve procedural certainty and stability throughout the case.

Chains, Amendments, and Continuity of Standards

Despite this structural shift, the 2026 Rules do not materially alter the standards governing new or additional claims. Tribunal discretion remains governed by a structured balancing exercise under Article 25, broadly consistent with the approach previously reflected in Article 23 of the 2021 ICC Arbitration Rules.

Relevant considerations continue to include procedural fairness, efficiency, timing, and cost implications. The reform clarifies these factors but does not lower admissibility thresholds or materially expand opportunities for amendment.

A practical tension nevertheless remains. Where tribunals refuse the introduction of additional claims, parties may be incentivised to commence parallel proceedings in order to preserve unresolved aspects of their dispute. This dynamic is not a consequence of the removal of the ToR as such, but rather reflects the broader structural limits of consolidation and joinder mechanisms in international arbitration more generally.

Institutional Convergence

The reform brings the ICC closer to other major institutions that already rely on tribunal-led case management rather than fixed procedural documents. The 2020 London Court of International Arbitration (“LCIA”) Rules already operate without Terms of Reference, relying instead on early procedural directions and ongoing tribunal supervision. Other institutions, including the Dubai International Arbitration Center (“DIAC”) and the Saudi Center for Commercial Arbitration (“SCCA”), similarly emphasise tribunal-led procedural structuring and flexible case management rather than a predefined instrument. This reflects a broader institutional trend away from formalised procedural milestones towards more adaptive and efficiency-oriented models of arbitration management. For parties, counsel, and arbitrators operating across different institutional frameworks, this convergence promotes greater procedural familiarity and reduces the need to adapt to institution-specific procedural architectures.

More broadly, the reform reflects a wider trend in international arbitration towards procedural frameworks that evolve through ongoing tribunal supervision rather than being fixed at the outset of the proceedings, grounded in increasing reliance on detailed requests for arbitration and answers, early procedural conferences, and the progressive allocation of procedural authority to tribunals within institutional case management systems.

Practical Implications: Discretion, Flexibility, and Predictability

The shift towards continuous case management increases flexibility and allows tribunals to respond more dynamically to evolving disputes. At the same time, it expands reliance on tribunal discretion in areas previously structured through a constitutive procedural instrument.

For parties and counsel, this carries immediate strategic consequences. The Request for Arbitration and the Answer assume greater significance, as they are more likely to shape how the tribunal initially conceptualises and organises the dispute. Equally, advocacy during the first CMC becomes increasingly decisive, effectively replacing ToR negotiations as the primary site of procedural influence.

More broadly, the reform may also incentivise parties to frame their claims and procedural positions more comprehensively from the outset. In the absence of a formal ToR, early submissions and the first CMC are likely to exert greater influence over how tribunals conceptualise the structure and trajectory of the case.

At the same time, the removal of a fixed procedural anchor raises questions concerning predictability and procedural consistency. Much will depend on how coherently tribunals exercise their expanded case management powers, and on whether early procedural conferences can reliably replicate the discipline and procedural clarity historically provided by the ToR.

Conclusion

The removal of mandatory ToR under the 2026 Rules represents more than a procedural simplification. It reflects a broader shift in how procedural authority is exercised and maintained throughout arbitral proceedings.

Rather than concentrating procedural organisation in a single constitutive document negotiated at the outset, the revised framework distributes procedural structuring across successive CMC and procedural orders. The reform therefore strengthens the tribunal’s role not merely as adjudicator, but as the continuous architect of the procedural framework.

At the same time, the amendment leaves intact the substantive standards governing amendments and additional claims. The principal change is therefore institutional rather than doctrinal: procedural coherence is now expected to emerge dynamically through ongoing tribunal supervision rather than through a fixed procedural instrument.

Whether this model enhances efficiency without undermining predictability will ultimately depend on how tribunals exercise their expanded case management powers in practice. The success of the reform will turn on the ability of tribunals to exercise expanded procedural discretion in a manner that preserves clarity, procedural discipline, and party confidence throughout the lifecycle of arbitration.