August 2026 Edition
The ICC has undertaken the first major revision to its Arbitration Rules since 2021. Most of what has changed constitutes tidying up: the rules catching up with practice, or formalising a discretion the Court already had. However, a handful of changes are genuinely new and worthy of a proper review because some may have a noticeable impact on arbitration practice and drafting choices for an arbitration clause.
The most interesting changes
Arbitrator disclosure
Arbitrators are required to be neutral in their decision making, and there have long been rules requiring disclosure to the parties of any connections that could be perceived to be a conflict of interest.This topic has been up for debate in the arbitration community and has been a particularly hot topic for London arbitrations since the decision in Halliburton v Chubb [2020] UKSC 48. Essentially, there is a tension between the duty to disclose, and the difficulty that such disclosure is said to introduce in areas where there are more limited pools of available arbitrators and a high volume of arbitrations, such as in the shipping industry. Despite strong resistance from some quarters (notably the LMAA), the disclosure obligation was made an express requirement by the Arbitration Act 2025 (new section 23A). If an arbitration is London-seated, the ICC rules are now closely matched with the statutory obligations already in place, and this is also the case with many of the major arbitration seats.
The key change to the ICC rules in this regard is twofold. First, Article 12(2) now provides expressly that any doubt a prospective arbitrator has about whether to make a disclosure “shall be resolved in favour of disclosure”, a formulation that puts a thumb on the scale in a way the 2021 Rules did not. Second, and perhaps more significant in practice, parties themselves now have a role to play: at the point of filing their Request, Answer, or Request for Joinder, each party must submit to the Secretariat a list of persons and entities it believes the tribunal should take into account when considering whether a disclosure is necessary, together with the reasons why, and must separately disclose the existence and identity of any third-party funder with an economic interest in the outcome.
As all arbitration practitioners know, arbitrator disclosure is something a party can make mischief with, even where there is no real concern. Some will use a disclosure as an excuse to reject the counterparty’s chosen arbitrator as a tactical weapon. The new rules do not eliminate that risk, but it may shift the timing of the arguments and may introduce arguments over who should or should not be on the list submitted to the ICC. However, on the flip side, it reduces the burden on arbitrators in second guessing where there may be a connection.
Ultimately, there is an element of waiting and seeing how practice develops when it comes to this matter. Critics have said it will create an undue burden on arbitrators. Our more optimistic view is that as long as parties and practitioners can take a pragmatic view on challenges, this rule provides welcome transparency and confidence in the independence of the tribunal.
Highly Expedited Arbitration Provisions (HEAP)
HEAP is a new concept for the ICC. The key features are that there is no consolidation or joinder, the award is due within three months, and it can be dealt with on paper only.
The most common criticism of arbitration is that it is long-winded and expensive. HEAP is designed to short-cut that for a simple dispute capable of being resolved quickly on limited evidence. Critics say this comes at the expense of due process, though it is worth noting that objections to speed tend to come loudest from those whose fee structures reward longer proceedings. But due process is about whether a party had a fair opportunity to present its case, not about how much time was spent presenting it. A dispute that turns on a handful of documents and no real factual conflict does not become fairer by taking longer to resolve. One of the selling points of arbitration is its inherent flexibility and the ability to tailor the process to what is required for the dispute at hand and not every dispute needs months of document production or lengthy witness evidence. HEAP provides a clear and predictable framework for disputes that can be resolved more quickly and is deliberately limited to the kind of dispute that is not complex or evidence heavy.
Real appetite for this kind of solution already exists, and English statutory adjudication is the clearest evidence of it. Adjudication typically takes 28–42 days, is largely conducted on paper, and produces a reasoned award. It is much maligned for the stress it brings and much loved for its speed, particularly in construction, where it can unlock or resolve related disputes without waiting for the end of the project. That it is driven by a statutory obligation to adjudicate does not detract from the point: plenty of parties genuinely think it is a fast and effective way of moving on with the commercial relationship, even where the result is not always the one they wanted. Adjudication is not the only comparator: the LMAA Terms have both a Small Claims Procedure and an Intermediate Claims Procedure which are designed to be short and lighter on evidence and can be done on paper. SIAC has also recently introduced a similar streamlined procedure.
A key point, and another one that undermines the due process point, is that HEAP only applies ”when all parties so agree” (Article 33). It is opt-in, unlike the standard Expedited Procedure, which applies automatically unless excluded, and the ICC standard clauses include recommended language that can be used to opt-in to HEAP. There are many reasons why parties should consider building HEAP into an arbitration clause, particularly if a contract is establishing a longer-term relationship: there may be huge commercial value in being able to resolve smaller legal difficulties or hiccups without a deeply fought, expensive battle which may come at the expense of the entire relationship. Agreements on procedure will typically be harder to reach once a dispute has actually arisen, so although it is possible to agree to HEAP at the point of a dispute, parties may be less inclined to be pragmatic and sensible at that point. Addressing it in the clause is a stronger plan than leaving it to chance.
Early determination
Early determination is a process that allows the Tribunal to use its discretion to summarily dismiss a claim or defence. Arguably, under most arbitration laws and rules, tribunals have always had an inherent right to manage the case, which would include the right to make an early determination on an issue in dispute. However, as discussed above in relation to expedited proceedings, arbitration is often accused of being too slow, and the intention behind introducing early determination rules is to give arbitrators confidence to use this power and to ensure that arbitration is efficient and therefore remains attractive to the parties. Whilst the intention is good, it may prove less useful in practice.
The LCIA introduced an early determination rule in 2020, and the experience there is instructive. In 2024, of the 16 applications for early determination under the LCIA Rules, only one was granted, and enthusiasm for granting applications has if anything waned since the procedure was introduced. Anecdotally, a simple early determination application with a one-day hearing can take up to three months and £150,000 for three arbitrators to reach a decision. By comparison, a London High Court proceeding of more complexity, with the same one-day hearing, would produce a judgment within less than a fortnight. The process therefore appears to have done little to deter recalcitrant parties from fighting hopeless points in order to postpone the inevitable.
The ICC has now formalised a power to determine claims or defences that are manifestly without merit or outside the tribunal’s jurisdiction, but formalising a power is not the same as encouraging its use, and the incentive structure does not obviously help: the hourly fee structure that governs most ICC appointments creates no structural incentive to shorten proceedings, and a ”manifestly without merit” threshold gives any hesitant tribunal ample room to let the case run its course instead. The power now exists. Whether it gets used is another question, and if the LCIA’s experience is anything to go by, it is questionable whether there will be a great surge of early determinations of unmeritorious claims.
Award quality and fees
On paper, this looks like the smallest change in the 2026 Rules. However, it may have more teeth than it appears to. Under the 2021 Rules, the Court could already take into account the diligence, efficiency and rapidity of the tribunal when setting fees. The 2026 Rules add an explicit new factor: the quality of the draft award itself.
The first question that arises is how will quality actually be assessed? The mechanism already exists in the form of the Court’s scrutiny of the award under Article 37, and it gives some sense of what ”quality” might mean in practice. Scrutiny can add real time to a case; a draft award going back to the tribunal more than once before it is approved is not unheard of, and each round can add months. Article 37(2) is also careful to say that the Court’s comments on substance must not affect the tribunal’s liberty of decision, but the line between form and substance is not always a clean one to hold, and some practitioners have observed comments at the scrutiny stage edging closer to the application of the law than the rule appears to contemplate. If the same process that already produces those tensions is now also the basis for a fee reduction, the new factor may inherit them rather than resolve them.
That is before even getting to how tribunals might respond. Will it change appointment patterns, as arbitrators who feel exposed to a quality assessment become more selective about which cases, or which co-arbitrators, they are prepared to sit with? Will it change the behaviour of the tribunal itself, for better or worse, if a chair becomes more cautious about circulating a draft for fear of how it will be read at the fee-fixing stage? Or will it simply sit unused in the background, much like the Court’s existing discretion to depart from the fee scales in exceptional circumstances, invoked rarely and unpredictably?
It is too early to say, and anyone who tells you with confidence how this will play out is guessing. But of all the changes in the 2026 Rules, this is the one most capable of reshaping how tribunals go about their work, simply because a fee consequence operates on a different level than case management guidance.
The changes at a glance
