New ICC rules shift procedural focus from Terms of Reference to case management conferences

Where the Terms of Reference had been a mandatory feature of the ICC Rules since the 1920s, the 2026 revisions (106-page / 1.04MB PDF) relegate them to an opt-in mechanism. Parties and tribunals may prepare them if they consider it useful, but they are no longer obliged to do so.

The move, which came into effect on 1 June, brings the rules into line with modern practice. Making Terms of Reference optional is not a radical departure as much as it is a recognition of what practitioners have experienced for years: a well-conducted case management conference (CMC), not the Terms of Reference, is where disputes are really shaped.

What Terms of Reference were for

Historically, the Terms of Reference served three principal functions:

• confirming that the parties had agreed to arbitrate and were bound by the ICC Rules;
• recording the key procedural parameters of the case at an early stage; and
• defining, usually through a list of issues, the scope of what the tribunal was asked to decide.

In practice, however, the one-month deadline for submitting Terms of Reference under the 2021 Rules was routinely extended to allow parties to align on procedural matters, and the list of issues was deliberately kept minimal or supplemented by a floating definition - the ‘Goldman Formula’ - to preserve flexibility as the case developed.

For many practitioners, including arbitrators, the Terms of Reference became an administrative exercise rather than a meaningful procedural milestone. The real shaping of the dispute, identification of contested issues, establishment of timelines, and decisions about document production and witness evidence happened, or at least started in earnest, at the CMC and then through the parties’ more substantive written submissions.

The CMC takes centre stage

The 2026 Rules recognise this reality by transferring the procedural anchor point from the Terms of Reference to the initial CMC, which remains mandatory. Under Article 24 of the 2026 Rules, the arbitral tribunal must hold an initial CMC within 30 days of receiving the file from the Secretariat.

This deadline did not exist under the 2021 Rules, where the timing of the CMC was tethered to - and somewhat artificially focused on - the Terms of Reference paperwork. For arbitrations under the Expedited Procedure Provisions, that deadline remains 15 days while for the newly introduced Highly Expedited Arbitration Provisions, it is compressed to seven days. The President of the ICC Court, Claudia Salomon, said that the ICC had built on the perceived success of the expedited procedure model in reaching this outcome. Indeed, the latest ICC statistics revealed the growing importance of expedited procedures.

During or as soon as possible after the initial CMC, the tribunal must establish the procedural timetable and communicate it to the Secretariat and the parties. The 2026 ICC Note to Parties and Arbitral Tribunals (‘the Note’, 48-page / 2.12MB PDF) sets out what subsequent CMCs should address: including identifying contested issues in light of submissions filed to date; providing guidance on future submissions and evidence; exploring scope for narrowing disputed issues by agreement; reassessing the possibility of settlement or mediation; discussing potential bifurcation; reviewing outstanding document production requests; and considering whether post-hearing briefs or closing statements will be needed.

Where parties do choose to establish Terms of Reference, the Note clarifies that they will not be transmitted to the ICC Court, marking another clean break from the prior regime where the ICC Court’s approval was required before the case could proceed very far.

Practical implications for parties

The shift from Terms of Reference to the initial CMC as the procedural anchor point has significant consequences for how parties manage their claims.

Under the 2026 Rules, parties take on greater responsibility from the outset. Without mandatory Terms of Reference, it becomes crucial to present all claims clearly and thoroughly during the Request for Arbitration, Answer and Counterclaim stages. After the CMC, adding new claims will require tribunal approval.

Under prior versions of the Rules, the Terms of Reference served as the boundary for new claims: any claim not falling within their scope required the tribunal's authorisation before it could be introduced.

The 2026 Rules replace that boundary with a CMC-based one. Article 25 provides that, after the initial CMC, no party may introduce new claims without the express authorisation of the arbitral tribunal. In deciding whether to grant that authorisation, the tribunal will weigh four factors: the nature of the new claims; the stage at which they are being introduced; the cost implications of their admission; and any other relevant circumstances -  reflecting similar considerations to those that applied with regard to emergent claims not included in the Terms of Reference.

The practical impact of this shift is that greater weight falls on the Request for Arbitration and the Answer than ever before. These documents will need to set out all claims as fully and comprehensively as possible.

Modern practice views memorials or pleadings as the proper starting point for issue clarification and emphasises that they are the foundation on which the issues in dispute are framed. The first CMC precedes those substantive submissions and so is conducted in something of a partial vacuum. It can be truly effective only if the tribunal has a sufficient grip on the case from the parties’ initially stated positions and from a candid discussion at the CMC.

Risks to bear in mind

This change, while a welcome move towards greater procedural flexibility and efficiency, carries some risks which parties should bear in mind.

Parties celebrating the end of mandatory Terms of Reference should be careful what they wish for. The single biggest risk in complex ICC arbitrations is scope creep. Terms of Reference can promote efficiency by identifying the issues to be decided at an early stage, and parties who skip that step may find themselves more reliant on a thorough and well-documented first CMC, lest they find themselves, in time, litigating across a far broader battlefield than they ever intended.

In certain jurisdictions, an arbitration agreement alone may not suffice. A signed Terms of Reference can serve as a submission agreement where required, or as confirmation of an agreement to arbitrate if there are doubts about its existence or validity. Parties should therefore think carefully before foregoing this safeguard. This was the original purpose of ‘L’acte de mission’, after all.

The greater flexibility offered by the 2026 Rules demands, in equal measure, greater preparation.

Co-written by Johanne Brocas of Pinsent Masons.