ICC Drops Mandatory Terms of Reference: What the 2026 Rules Mean for Your Next Arbitration
By Emma R. Ryan | DFL Legal
On June 1, 2026, the new ICC Rules of Arbitration took effect for arbitrations commenced on or after that date, replacing the 2021 Rules. The ICC’s revisions were designed to increase flexibility in proceedings and improve case management. One of the most noteworthy changes is the elimination of the mandatory Terms of Reference, a feature that long set ICC arbitration apart from other major institutions.
The Terms of Reference document had been used to confirm the parties’ consent to arbitration, outline the scope of the dispute, and set out the procedural framework for the arbitration. The 2021 ICC Rules required the arbitral tribunal to prepare the Terms of Reference and send them to the ICC Court within 30 days of receiving the case file. The process was intended to help parties to reach early agreement on procedural matters.
Though the tribunal was meant to send the Terms of Reference within 30 days, in reality, extensions were often given so the parties and the tribunal would have time to discuss the document. Furthermore, tribunals and parties were hesitant to prepare detailed lists of issues at an early stage in the proceeding in order to preserve future flexibility. These procedural pitfalls, along with other practical problems, led the ICC to make the Terms of Reference optional, leaving it to the tribunal’s discretion whether they would be useful.
The Case Management Conference (CMC) is still required under the new Rules, and it is now the main form of procedural organization at the beginning of the arbitration. The CMC must be held within 30 days of the tribunal receiving the file. A procedural timetable is created at the CMC, and the President of the ICC Court uses the timetable (or a request from the tribunal) to set a deadline for the award. This replaces the previous default timeline of six months from the last signature of the Terms of Reference to the final award.
Once the CMC has taken place, a party needs the tribunal’s permission to bring a new claim. The tribunal then considers the nature of the new claim, the stage of the proceedings, the costs, and any other relevant factors.
Parties and counsel arbitrating under the ICC Rules should note that, for arbitrations commenced on or after June 1, 2026, Terms of Reference are no longer mandatory, and the Case Management Conference is now the main procedural milestone at the outset of the arbitration. Since new claims require the tribunal’s permission once the conference has taken place, parties should plead their full case early.
Read more about the new ICC Rules of Arbitration here.