The ICC has announced that, under the new rules, the requirement to draw up Terms of Reference in standard ICC arbitration proceedings has been removed.
Although Terms of Reference have traditionally served purposes such as recording the key procedural matters of an ICC arbitration at an early stage and defining the scope of the dispute, their practical utility has weakened over time in many cases, and whether Terms of Reference are actually necessary in every dispute has been a matter of debate for some time.
As Terms of Reference Become Optional, the Case Management Conference Will Gain Greater Practical Significance
Terms of Reference are no longer mandatory. Pursuant to the ICC Rules 2026, Terms of Reference are no longer a mandatory step in standard proceedings but retain their place in the Rules as a tool that arbitral tribunals may use where they consider it useful. In support of this approach, reference is made to the experience under the Expedited Procedure Rules that entered into force in 2017: out of more than 1,000 proceedings conducted under the Expedited Procedure Rules — where no requirement to draw up Terms of Reference applied — fewer than 25 arbitral tribunals opted to prepare them.
The Case Management Conference gains in importance. The Case Management Conference, which remains mandatory under Article 24 and must, under the new framework, be held within 30 days from the transmission of the file to the arbitral tribunal, becomes the central procedural stage of the proceedings. The procedural timetable established at the Case Management Conference will now be submitted to the Secretariat, rather than to the ICC Court. In light of the removal of the requirement to draw up Terms of Reference, the ICC Secretariat has also announced that it has prepared a model First Procedural Order (“PO1”) template to guide arbitral tribunals that wish to address the key matters relating to the proceedings in the PO1.
Restrictions on new claims. To underscore the ICC’s objective of efficiency and cost-effectiveness, the new framework makes the introduction of new claims after the initial Case Management Conference subject to the leave of the arbitral tribunal. In deciding on such requests, the arbitral tribunal will take into account the nature of the claim, the stage of the proceedings and its potential impact on the costs of the arbitration. In the absence of Terms of Reference, it will become critical for the parties to set out their claims in full from the outset, in their Request for Arbitration, Answer and Counterclaim.
Time Limit for the Final Award. Pursuant to Article 34 of the new Rules, the time limit for rendering the final award will be set by the President of the ICC International Court of Arbitration on the basis of the procedural timetable or on a reasoned request from the arbitral tribunal. This removes the standard six-month time limit that ran from the signing of the Terms of Reference and was rarely observed in practice, aligning the Rules with current established practice.
Practical Implications
By making Terms of Reference optional, the ICC Rules 2026 bring standard ICC arbitration closer to the framework of the Expedited Procedure Rules and shift the natural focal point of the proceedings from the Terms of Reference to the Case Management Conference. In this respect, the ICC Rules 2026 deliver a more flexible, more efficient and less formalistic structure for procedural management in standard ICC arbitration.
From the parties’ perspective, it can be said that the most significant practical consequence is the increased importance of setting out their claims in full at the Request and Answer stages.