The new ICC Rules, which entered into force on 1 June 2026, codify the Early Determination mechanism — already applied in ICC arbitration practice — as a standalone rule for the first time. Not expressly addressed in the text of the ICC Rules 2021, this mechanism was previously dealt with in the Note to Parties and Arbitral Tribunals under the arbitral tribunal’s general case management powers. With Article 30 of the ICC Rules 2026, this practice has now been incorporated directly into the text of the Rules.
The Early Determination mechanism allows for claims or defences that are manifestly without merit, or that manifestly fall outside the arbitral tribunal’s jurisdiction, to be identified and decided at an early stage of the proceedings. In this way, the ICC Rules 2026 give this already-recognised tool of ICC practice a more visible, predictable and clearly defined normative framework.
In Which Cases May Early Determination Be Sought?
Article 30 limits applications for Early Determination to two situations. Accordingly, a party may request an early determination in respect of one or more claims or defences on the basis that they are manifestly without merit or manifestly outside the arbitral tribunal’s jurisdiction.
The “manifestly” threshold for the lack of merit or jurisdiction indicates that the mechanism is not a general avenue of challenge available against every weak claim or defence. Early Determination should therefore be regarded as an exceptional procedural tool that can be effective only in situations not requiring extensive evidentiary assessment or expert examination.
The arbitral tribunal, for its part, has discretion in deciding whether to allow an Early Determination application to proceed, taking into account the timing of the application, the stage of the proceedings, the nature of the dispute and whether an Early Determination would, in fact, save time and costs.
In this respect, the provision not only confers on the arbitral tribunal the power to dispose of claims or defences at an early stage; it also assigns the tribunal a filtering role, designed to prevent the Early Determination mechanism from being used as a tactical tool to delay the proceedings or to exert procedural pressure on the other party.
Procedural Safeguards and the Form of the Decision
Under the new provision, where the arbitral tribunal decides to allow an Early Determination application to proceed, it must determine the appropriate procedural framework after consulting the parties, and the other party in particular must be given a reasonable opportunity to respond.
The decision rendered on the application may take the form of a procedural order or an award, depending on its content. Where the decision finally disposes of a claim or defence, rendering it in the form of an award will be particularly important for the ICC Court’s scrutiny process, as well as for the enforcement and set-aside regimes.
Practical Implications
The incorporation of the Early Determination mechanism into the text of the Rules under the ICC Rules 2026 makes the existing practice more clearly defined and predictable, rather than creating an entirely new mechanism in ICC arbitration. In this respect, the change reinforces the arbitral tribunal’s power to dispose of claims and defences that are manifestly without merit or manifestly outside its jurisdiction at an early stage of the proceedings and reduces any hesitation in exercising that power.
Given that the ICC Rules 2026 also remove the Terms of Reference as a mandatory step in standard proceedings, the Early Determination mechanism may be said to complement that approach. Indeed, since the new system requires the parties to set out their claims clearly and comprehensively from the outset – with the Request for Arbitration, Answer and, where applicable, Counterclaim – claims or defences that are manifestly without merit or manifestly outside the arbitral tribunal’s jurisdiction can be identified earlier and more effectively. In this respect, Early Determination should be regarded not as a subsidiary application to be raised at later stages of the proceedings, but as a case management tool capable of clarifying the scope of the case from the outset.