1. The new ICC Arbitration Rules 2026 came into force yesterday, 1 June 2026, for all arbitrations under ICC Rules which are commenced as from that date. Lawyers running ICC arbitrations, whether as counsel or as arbitrators, will need to bear this new version in mind as it brings about a number of changes to the practice of ICC arbitration over the last five years under the 2021 version of the Rules.
2. The 2026 Rules effect a good number of changes both of a substantive and of a more cosmetic or presentational nature. Comprehensive coverage of the changes can best be gleaned from an extremely helpful comparative grid on the ICC Website. Thus, for example, the new Rules adopt new or refine existing procedures for the expedition of the reference [see Article 30 (early determination); Article 33 and Appendix VI (Highly Expedited Arbitration Provisions); article 1(3) of Appendix V (the increase of value for the purposes of the Expedited Procedure)]; Articles 12(8) and 44(2) – arbitrators’ and tribunal secretaries’ duties of confidentiality are now express rather than simply implicit; Article 3(1) now states expressly what must have been assumed for years, namely that e-mail communications are valid and indeed now the default means of communication in ICC arbitrations.
3. In this short Note, however, rather than going through these and other changes, we shall be concentrating on what appear to us to be two of the more substantive changes in the Rules, two changes moreover which raise interesting practical issues where an ICC arbitration is seated in this jurisdiction. Those two changes are:
i. the removal of the erstwhile mandatory Terms of Reference stage; and
ii. new rules regarding the disclosure of possible arbitrator conflicts of interest (Article 12(5)).
We take the view, for the reasons presently to be set out, that the first change is to be welcomed, but that the second is not.
Terms of Reference
4. The Terms of Reference (“ToRs”) stage has long been a characteristic feature of ICC arbitrations, first having appeared as a formal article in the 1955 version of the Rules. Reactions to ToRs have differed as between both parties and arbitrators. At one end, ToRs are regarded positively as a standard and welcome procedure geared to concentrating the minds of the parties of what matters in the arbitration soon after it is initiated: the claims, any counterclaims, the reliefs sought, the issues. At the other more critical end of the spectrum, ToRs are regarded as a costly and premature procedure which simply delays the start of effective engagement on the merits by involving the parties in a mandatory “phoney war”, where weeks can be spent on discussions about, as it were, what used to be called, decades ago in Kissinger’s time, the shape of the conference table. True it is that ToRs were not meant to act as a “straitjacket” precluding different positions being taken as the reference proceeds. The reality, however, is that because of the fear that ToRs might act as a straitjacket precluding changes of position, meticulous care is always taken to draft ToRs defensively, at some length and at considerable cost.
5. To cross over from ICC arbitrations to a less formal arbitral environment, there is much in ToRs which is covered in a different way at the Questionnaire stage of LMAA Arbitrations (London Maritime Arbitrators Association). The big, and in our view salutary, difference with the (now optional) ToRs is that LMAA Questionnaires are completed at a much later stage of the reference, (the default position being 14 days after the last written submissions). At that stage, the parties have worked on and set out their respective stalls in written submissions; the parties each have a clear picture of what both are after and why; the “pause” button is pressed for a couple of weeks while Questionnaires are drafted, giving the parties an opportunity to consider their positions, both legal and commercial, armed with a clear idea not only of their own case, but also of that of their opponent’s. Moreover, that clear and informed perspective gives the parties, particularly the lay parties footing the bills, a transparent sense of whether it is best to fight or to settle: indeed anecdotally, at any rate, this post-Questionnaire stage is when settlements frequently happen.
6. Arbitrators too get a clear view in the Questionnaires of the terrain, a view painted in full sight of the submissions made, allowing them to make effective directions tailor-made to those submissions. At the ToR stage, on the other hand, the tribunal is inevitably working somewhat in the dark, submissions not having yet been filed.
7. Above all, however, there is no – or at any rate far less – risk in the LMAA Questionnaire system of the parties finding themselves caught by positions prematurely taken (in fought-over and successive drafts of ToRs) and having then to bob and weave through caveats and amendments to the final version.
8. It is clear where our sympathies on ToRs lie: while the ICC 2026 Rules do not jettison ToRs altogether, they are no longer mandatory. They are wisely replaced instead by a mandatory Case Management Conference, a “CMC” (Article 24(1), ICC Rules 2026), which helps the parties and the Tribunal to step back and see the big picture of the arbitration, armed now with a clear idea of the parties’ respective positions.
9. The ToR stage, despite its respectable pedigree, is (was?) a procedure both premature and distilled at an altogether too high a level of abstraction, in effect a one-size-fits all procedure drafted in the half-light, at considerable cost of time and money. It will be interesting to see whether old habits die hard, whether parties subjecting their reference to ICC arbitration choose to opt for the retention of ToRs – or whether they will embrace the (in our view) very much more practical, necessary, and timely default introduction of CMCs. The change is, in our view, very welcome.
Disclosure of Possible Conflicts of Interest (Article 12(5), ICC Rules 2026)
10. We live in a post-Halliburton v Chubb ([2020] UKSC 48) age, and, in this jurisdiction, operating in the shadow of section 23A of the Arbitration Act 1996 as amended in 2025: Halliburton and section 23A both tighten up an intended arbitrator’s duty to disclose “circumstances that might reasonably give rise to justifiable doubts as to the individual’s impartiality to the proceedings, or potential proceedings, concerned.”
11. It would be true to say, albeit anecdotally, that, eight months since the coming into force of the 2025 Act, arbitrators are still figuring out precisely what is necessary, acceptable or advisable in the matter of disclosure of perceived conflict of interest. It is clear, though, that whether one frames the question of disclosure through the prism of the common law Halliburton rules or through the statutory code of the 2025 amendment, the initiative in asking the question Do I disclose or not? is left firmly in the intended arbitrator’s hands.
12. Article 12(5) of the ICC 2026 Rules takes us, however, to a new place. The new Rules explicitly cast the parties in the role of interrogators initiating in a very explicit way what (or rather whom) the intended arbitrator ought to consider in exercising their duty of disclosure. “To assist prospective arbitrators and (to assist) arbitrators in complying with their disclosure obligations, parties must submit to the Secretariat (at various early stages of the reference) a list of persons and entities which they (the parties) believe the prospective arbitrators and arbitrators should consider and the reasons thereof.” This presumably gives each party the right, indeed the duty (must), to name a list of people or entities which that party considers might raise doubts as to the impartiality of one of the arbitrators.
13. A number of issues arise, some of principle and others of granular detail. Most broadly, does this new power/duty go a mile too far? In a universe based on trust, drawing on the services of professionals in a sector whose activities are based on good faith, have we reached a place we actually want to occupy? Is it appropriate that an intended appointee, alive to the strictures of Halliburton, of the new section 23A of the Arbitration Act1996 as amended, and having moreover filled in the copious forms and signed the appropriate confirmations required by the ICC Secretariat, be faced in addition with a list of persons and entities “to consider”? How long is the list to be? And once presented, can further lists be dreamt up later? Moreover, if a name on a list has been considered, and accepted by the other party, but a “relevant circumstance” later comes to light within the meaning of that phrase in section 23A of the Arbitration Act 1996, does the fact that the name has been accepted for the purposes of Article 12(5) of the ICC Rules 2026 mean that issues cannot now be raised under section 23A of the Arbitration Act?
14. Underlying the intricacies of these questions there lurks a serious practical risk: does the new power/duty to draw up a list of “persons of interest” run the risk of being weaponised by an unwilling respondent (and respondents normally are quite unwilling) to put a break on the orderly progress of a reference under the new Rules through unmeritorious, lengthy and possibly successive lists of persons of interest to be considered? Are we sure that by aiming for the best, we now run the risk of missing the good? Ought not the chances of challenge, whether of the arbitrator’s appointment or of any ensuing Award, and the risk of reputational damage in a closely knit professional community, be regarded as a sufficient and adequate spur to appropriate disclosure without this novel posting of lists of names to be considered? A case, perhaps, of the need to be careful what to wish for?
Conclusion
15. Occasional revision of institutional arbitral rules is always healthy, so long as it does not happen too often and so long as it reflects demonstrated movement in market practice. Accepting the legitimacy of e-mail and streamlining procedures to further expedition come so obviously within those criteria as hardly to merit comment.
16. The two areas forming the subject-matter of this Note, however, namely ToRs and disclosure of possible conflicts, are not immediately susceptible to obvious answers and different views can be taken of either. Our own views, for the reasons here set out, are that the new Rules bid a welcome Good-bye (or is it simply au revoir) to the erstwhile venerated ICC ToRs; and that the heavier superstructure now added to arbitrator’s duties of disclosure is cumbersome and may well cause costly and unnecessary delay in the progress of a reference.
Charles Debattista
Shyam Thakerar
36 Stone
Further information
For more information from the stone team, contact clerks@36stone.co.uk
