2026 ICC Arbitration Rules: Early determination

The International Chamber of Commerce (ICC) has approved a revised set of Arbitration Rules (2026 ICC Arbitration Rules), which came into force on the 1st of June 2026, and apply to all arbitrations commenced from that date, unless the parties have agreed to be subject to the earlier version (2021 ICC Arbitration Rules). The revisions followed an extensive development process, and represent a significant update to ICC arbitration, which places a clear focus on efficiency, flexibility, and effective case management.

One of the most significant structural changes is the departure from the Terms of Reference. The initial Case Management Conference takes a more prominent role in shaping the proceedings and establishing the procedural timetable. It remains mandatory and must be held within 30 days from receiving the file from the Secretariat.

The Rules also expand the ICC’s expedited framework. A new Highly Expedited Arbitration Provisions (Appendix VI) has been introduced, to be applied when all parties so agree, providing a markedly accelerated process, including an award within three months of the initial case management conference.

At the same time, the threshold for the automatic application of the Expedited Procedure has been increased to USD 4 million for arbitration agreements concluded on or after 1 June 2026.

Of particular practical significance is the formal introduction of an application for the “Early Determination” of claims or defences, a procedural mechanism previously provided for only in ICC practice notes.

Early determination has long formed part of the ICC arbitral practice. Since October 2017, guidance on its use has existed in the Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration (the “Note”), with the understanding that entertaining or rejecting an application for early determination was a matter squarely within an arbitral tribunal’s remit.   

In the 2026 revision of the ICC Rules, the core provisions described in the Note have been moved into the Rules themselves, in response to feedback from the global business community and to remove any remaining doubt about an arbitral tribunal’s power to use this tool in ICC arbitrations.  

Pursuant to Article 30 of the 2026 Rules, any party is entitled to apply to the arbitral tribunal for the early determination of one or more claims or defences where such claims or defences are either manifestly without merit or manifestly outside the jurisdiction of the arbitral tribunal. Upon receipt of such an application, the arbitral tribunal has discretion to decide whether the application should be allowed to proceed. If the tribunal determines that the application may proceed, it shall, following consultation with the parties, adopt such procedural measures as it deems appropriate for the determination of the application.

For early determination to be effective, parties are expected to make an application as promptly as possible after the relevant claims or defences are filed. Because the procedure is designed to promote efficiency, an application made after submissions or document production may defeat that purpose by adding unnecessary time and cost.  

In deciding whether to allow the application to proceed, the tribunal may consider all relevant circumstances, including the stage of the proceedings, and the need to ensure time and cost efficiency.   

If the arbitral tribunal allows the application to proceed, it shall promptly adopt the procedural measures it considers appropriate after consulting the parties. The responding party must be given a reasonable opportunity to respond.   

In practice, arbitral tribunals have most often permitted early determination where they had to determine legal issues only, and where no, or very limited evidence was required; or where essential legal elements of the claim had not been pleaded by the party bringing the claim.   

The arbitral tribunal is expected to decide an application for early determination as promptly as possible, consistent with the nature of the Application.

The decision may be in the form of an order or award. The appropriate form will depend on the content of the decision. The ICC Court would expect any decision by the arbitral tribunal which finally disposes of claims to be in the form of an award.

The arbitral tribunal may wish to discuss the appropriate form of the decision with the parties in advance.

The arbitral tribunal may decide on the costs of an application for early determination pursuant to Article 41 or reserve this decision for a later stage. While similar mechanisms have existed in other institutions, and the ICC’s practice notes, its formalisation in the 2026 Rules provides a clear basis for parties to challenge unmeritorious claims or defences, and marks a significant shift towards positive case filtering.