The 2026 ICC Arbitration Rules: A German perspective

The elimination of mandatory Terms of Reference is perhaps the most significant structural change. The Terms of Reference were a formal document, signed by both the parties and the tribunal, that defined the scope of the dispute, recorded the parties' claims and relief sought, and established key procedural parameters – a unique (former) hallmark of ICC proceedings that lent structure to the early phase of proceedings, but also entailed considerable administrative effort and was, to an extent, duplicative. Their removal also in non-expedited ICC proceedings brings the ICC in line with the approach taken by most parties and tribunals in ICC expedited proceedings since 2017 and by other major institutions. German parties with experience in DIS arbitrations will find this familiar, as the DIS Rules have never required Terms of Reference.

In practical terms, the key procedural cut-off point shifts: where the finalisation of the Terms of Reference previously served as the deadline for introducing new claims, this function is now performed by the initial Case Management Conference ("CMC"), after which no new claims may be introduced without tribunal authorisation (Article 25). Parties should therefore ensure that all claims and counterclaims have been formulated and filed by this stage. In other words, the subject matter of the dispute must be fully defined before the CMC takes place. In practice, well-advised parties will have been preparing on this basis already, as the CMC was always the forum in which both the Terms of Reference and the procedural framework were discussed. The change is therefore less revolutionary than it may appear: what falls away is the formal Terms of Reference document, not the substantive need to have crystallised one's case by the time the CMC takes place.

The new Article 30 expressly permits, upon a party's application, an early determination of one or more claims or defences on the grounds that such claims are manifestly without merit or manifestly outside the tribunal's jurisdiction. The revision elevates this mechanism from the Note to the Rules themselves, in line with other institutions – including the SIAC, HKIAC, and the LCIA – that have already introduced the comparable provisions. Parties should be aware that the ICC expects the application to be made as promptly as possible after the filing of the relevant claims or defences, which further illustrates the need to front-load case preparation.

For German parties, this mechanism should be a familiar concept: it is, in essence, what a German court does when it dismisses a claim as unschlüssig – manifestly failing to state a cause of action on the facts as pleaded. The difference is that, while German judges exercise this power routinely, international arbitration tribunals have historically been reluctant to dispose of manifestly unmeritorious claims at an early stage. This is primarily due to two factors: first, the arbitral tribunal is typically the court of last resort – a dismissal is, in most cases, a final and irrevocable determination of the claimant's rights, which understandably makes arbitrators cautious. Second, at an early stage of the proceedings, the tribunal may not yet have had the opportunity to study the file in sufficient detail, and a decision of such consequence requires a thorough examination of both the facts and the law, which, particularly in complex disputes, cannot always be accomplished in a short period of time. Article 30 now provides an express textual basis that may help to overcome that reluctance, but its effectiveness in practice will ultimately depend on whether arbitrators engage with the substance of the case early enough to make such determinations with the necessary confidence.

From a practitioner's perspective, it is to be hoped that tribunals will embrace this mechanism for claims that are manifestly unfounded – e.g. lacking any legal basis, resting on wholly insufficient factual allegations, or being clearly time-barred. The mechanism provides the opportunity to dispose of genuinely unmeritorious claims early on without the cost and duration of conducting the entire proceedings, potentially including extensive document production and evidentiary hearings, only to dismiss the claims on grounds that were apparent from the outset.

The 2026 ICC Rules clarify and expand the powers of emergency arbitrators. The scope of parties against whom emergency proceedings may be brought has been expanded beyond signatories to the arbitration agreement and their successors, provided that the President of the ICC Court "is satisfied, based on information in the Application, that an arbitration agreement binding such party may exist" (Article 1(2)(c) of Appendix IV). In practice, this may be applicable where an arbitration agreement covers third parties, e.g. third-party beneficiaries. Most notably for German parties, the Rules now expressly confirm that emergency arbitrators may issue ex parte preliminary orders directing a party not to frustrate the purpose of the application (Article 7 of Appendix IV). Emergency arbitrators can thus now grant interim relief with speed and efficacy comparable to that of German state courts.

As under German procedural law, the ICC mechanism is subject to immediate due process safeguards: the other parties must be heard immediately after the order is granted, and both the emergency arbitrator and, later, the arbitral tribunal may modify or revoke it (Articles 7(4) and 6(10) of Appendix IV). The ex parte order must also be preliminary, i.e. no Vorwegnahme der Hauptsache. The codification of this mechanism within the ICC framework should reassure German parties that urgent relief under the ICC Rules operates with safeguards comparable to those they expect from domestic proceedings.

The automatic application threshold amount of the Expedited Procedure Provisions ("EPP") has been raised to USD 4 million for arbitration agreements concluded on or after 1 June 2026 (Article 1(3)(c) of Appendix V). With the median amount in dispute in ICC cases standing at approximately USD 5 million, a significant share of German companies' ICC disputes will now fall under the EPP by default.

The EPP imposes a sole arbitrator, limits document production, and compresses timelines – features that promote efficiency and reduce costs, but that may not be appropriate for all disputes falling below the threshold amount. For many companies, particularly in the German Mittelstand, disputes in the range of up to USD 4 million can be of considerable commercial significance. Accelerated proceedings place substantial demands on the parties and their legal teams, demands that smaller companies or leaner in-house departments may not be able to meet at short notice. Moreover, a three-member tribunal offers a greater degree of assurance as to the accuracy of the award than a sole arbitrator, a consideration that weighs heavily where the outcome has material consequences for the business. Companies should therefore review their ICC arbitration clauses in new contracts and consider whether an opt-out from the EPP is advisable for disputes that, while  falling below the monetary threshold, are complex enough to warrant a three-member tribunal and greater procedural flexibility.

5. HEAP: A new tool for less complex disputes

The newly introduced Highly Expedited Arbitration Provisions ("HEAP") provide for a final award within three months of the initial CMC by a sole arbitrator, on a strictly opt-in basis with no threshold amount. HEAP introduce a new fast-track arbitration procedure (Article 33 of Appendix VI) that parties can agree to apply either to an entire dispute or to a discrete aspect of a dispute requiring swift resolution, such as a purchase price adjustment, a technical preliminary question, or any other matter that lends itself to a clear yes-or-no determination. HEAP are not designed for procedurally complex disputes with extensive fact-finding requirements; they are best suited to cases where urgency or simplicity make a three-month resolution realistic.

For German parties, HEAP invite comparison with two existing mechanisms designed for fast dispute resolution. Dispute Adjudication Boards ("DABs"), common in construction and FIDIC-based contracts, offer rapid decisions but are not final – the parties retain the right to refer the dispute to arbitration, effectively creating a right to appeal. The German Schiedsgutachterverfahren (expert determination) provides for resolution of technical or valuation questions but produces a contractually binding determination rather than an arbitral award.

HEAP occupy a distinct position: they combine the speed of these mechanisms with the finality and international enforceability of an ICC arbitral award under the New York Convention. This may make HEAP particularly attractive for German SMEs involved in cross-border supply chain, technology licensing, or purchase price adjustment disputes. Parties should, however, be aware that finality cuts both ways: unlike a DAB decision, a HEAP award cannot be revisited in subsequent arbitral proceedings, and unlike a Schiedsgutachten, it is not subject to review for manifest inequity. A final award rendered within three months, on the basis of compressed proceedings and potentially without a hearing, leaves little room for correction. This makes the decision to opt in to HEAP one that should be taken with full awareness of its consequences.

The compressed timeline places significant demands on all participants: the deadlines are extremely tight, including for fact-finding and internal document preparation. Submissions are front-loaded, with the Request required to include a Statement of Claim and the Answer a Statement of Defence, both supported by evidence and legal authorities. For larger or more complex disputes, where procedural depth and a full evidentiary hearing are needed, a standard ICC arbitration or the EPP likely remains the more appropriate choice.

The ICC's new Article 12(5) requires parties to submit, at the time of filing their initial submissions, a list of persons and entities that prospective arbitrators should consider for disclosure purposes and the reasons thereof, i.e. a short description of their relevance to the dispute. This formalises a practice that was already part of the ICC Secretariat's case management. Now, the parties are formally required to contribute to this process from the outset, ensuring that potential conflicts are surfaced earlier and more comprehensively. Parties should be prepared to compile this information at an early stage, building this into their case preparation workflows from the outset.

The Rules introduce an express confidentiality obligation for arbitrators and secretaries (Articles 12(8) and 44(2)) and maintain the confidentiality obligations of the ICC Secretariat and Court (Article 2 of Appendix I). German parties accustomed to DIS or SGH arbitration should note, however, that, unlike the DIS Rules (Article 44.1 DIS Rules and Article 15 SGH Rules), the 2026 ICC Rules still do not impose a default confidentiality obligation on the parties. The parties therefore remain free to agree – or not – on the confidentiality of the proceedings. Parties who wish to ensure confidentiality should address this expressly in the arbitration agreement or at the CMC stage, rather than relying on institutional default protections that do not exist under the ICC framework.

• Relaxed form requirements and digitalisation: the draft bill introduces a Model Law-style record requirement for arbitration agreements, recognising electronic communications and other durable media (draft-§ 1031(1) ZPO), reducing the risk that ICC arbitration agreements concluded electronically are later challenged for non-compliance with German form requirements. The draft also expressly permits virtual hearings and electronic awards – resonating with the ICC's own embrace of digitalisation, including virtual and hybrid hearings (Article 27(1)), deliberations and CMCs (Articles 19(3) and 24(5)), and signing of awards electronically or in counterparts (Article 38(1)).
• English-language court proceedings: the draft introduces the possibility of conducting arbitration-related court proceedings, including set-aside and enforcement, entirely in English before the new Commercial Courts (draft-§ 1063a ZPO), with appeals to the BGH also possible in English. This removes a longstanding practical barrier for international parties in German-seated ICC arbitrations.
• Reform of interim relief: the draft bill clarifies the enforceability of interim measures ordered by arbitral tribunals, including, for the first time, those seated abroad (draft-§ 1041(2) ZPO), and replaces the court's previous discretion with specific grounds for refusal. On the ICC side, the Rules clarify and expand the powers of emergency arbitrators. Taken together, German parties have a more robust dual-track toolkit for obtaining urgent relief and greater clarity on what measures will be enforceable against them in Germany.

• Review your arbitration clauses: check compatibility with the new framework. Consider whether to incorporate HEAP, adjust for the revised EPP threshold, and add tailored confidentiality provisions.
• Prepare for mandatory disclosure obligations: systematically identify relationships and connections at the outset of proceedings and build this into early case workflows.
• Front-load your case preparation: the Terms of Reference are gone. The initial CMC is now the key procedural milestone where relief sought should be refined and potential additional claims should be identified.
• Get familiar with early determination and ex parte emergency relief: both mechanisms may become regular features of ICC practice. The ability to deploy them effectively, or to respond to them effectively, will be increasingly helpful in practice.

Authored by Sophie Thiel, Karl Poernbacher, and Kira Kuhnert.