The 2026 ICC Arbitration Rules: A Hong Kong perspective

Streamlining early stages: Removal of mandatory Terms of Reference

One of the more notable revisions is the abolition of the mandatory Terms of Reference. Traditionally, this document was prepared at the outset of ICC arbitrations to define the scope of the dispute and procedural issues. While once considered a distinct and at times helpful feature of ICC practice, the Terms of Reference had become increasingly redundant, often causing delays and additional costs at an early stage of the proceedings. Their original function of confirming parties’ consent to arbitrate has been overtaken by modern arbitration legislation, including the Hong Kong Arbitration Ordinance (Cap. 609), which already provides a robust framework for jurisdictional confirmation.

Under the 2026 ICC Rules, the Case Management Conference (CMC) now assumes greater importance which brings ICC arbitration in line with other key arbitration centres, including HKIAC. It must be convened within 30 days of file transmission to the arbitral tribunal and now serves as the procedural cut‑off point after which no party may make new claims, unless authorised by the arbitral tribunal (Article 25). The arbitral tribunals are required to establish the procedural timetable during or immediately after the CMC (Article 24).

This reform is a welcome development for Hong Kong users, as it aligns ICC practice with the emphasis on Case Management and efficient handling of the Procedural Timetable already embedded in HKIAC proceedings. It also underscores the need for parties to prepare their claims comprehensively at the outset, given the stricter limits on introducing new issues later in the process.

A new attempt for efficiency: Highly Expedited Arbitration Provisions (HEAP)

The introduction of the Highly Expedited Arbitration Provisions (HEAP) marks an ambitious step towards faster dispute resolution. HEAP is available only on an opt‑in basis, with no monetary threshold, and is designed for straightforward disputes or discrete issues requiring swift resolution. Key features include a 20‑day deadline to nominate the sole arbitrator, mandatory front‑loading of submissions (a Statement of Claim must accompany the Request, and a Statement of Defence must accompany the Answer), and a requirement that the final award be rendered within three months of the initial CMC. Parties may also agree to dispense with reasons in the award, and joinder and consolidation are not allowed under the HEAP to preserve procedural simplicity (Appendix VI).

While HEAP offers clear advantages in terms of speed and cost, Hong Kong parties should be mindful of enforcement risks. In A v. B and Others [2024] HKCFI 751, the Hong Kong Court of First Instance refused enforcement of an award that lacked reasoning, holding that, where there is no express waiver of reasonings from the parties, its absence was contrary to fundamental principles of fairness, due process, and justice. The Court emphasised that material issues raised for determination must be addressed fairly. Accordingly, parties considering HEAP should seek legal advice before agreeing to an award without reasoning, as enforceability may be jeopardised, or at least unduly complicated, in Hong Kong and potentially other jurisdictions.

HEAP reflects the ICC’s effort to push efficiency even further, complementing the expedited procedure rules already in place at leading arbitral institutions, including the HKIAC. The competitive dynamic between ICC and HKIAC is likely to benefit users in Hong Kong, where efficiency and cost control are increasingly decisive factors in institutional choice. It will be interesting to observe whether this has an impact on how parties choose between institutions when agreeing their dispute resolution mechanisms at the outset of their contractual relationships.

Enhanced expedited procedure and emergency arbitration

The threshold for automatic application of the expedited procedure under the 2026 ICC Rules has been raised from USD 3 million to USD 4 million for arbitration agreements concluded on or after 1 June 2026 (Article 1(3) of Appendix V). Given that many ICC cases involve claims below USD 5 million, this adjustment is commercially significant. It also echoes the developments at HKIAC, which on 1 January 2026 increased its own threshold from HKD 25 million (approx. USD 3.2 million) to HKD 50 million (approx. USD 6.4 million), thereby expanding the scope of disputes eligible for expedited proceedings.

The emergency arbitration provisions have also been clarified and expanded. Applications for emergency arbitration may now be made not only against signatories but also against parties where the ICC President is satisfied, on a prima facie basis, that a binding arbitration agreement may exist (Article 1(2) of Appendix IV). Emergency arbitrators are expressly empowered to issue preliminary ex parte orders (Article 7 of Appendix IV). After granting such an order, the emergency arbitrator must hear all other parties and retains the power to modify the preliminary order (Article 7(4) of Appendix IV).

These reforms bring ICC practice into closer alignment with Hong Kong’s Arbitration Ordinance, which permits ex parte applications for preliminary orders under Section 37 of Cap. 609 Arbitration Ordinance. Similarly, under Clause 10 of Schedule 4 of the 2024 HKIAC Rules (Emergency Arbitrator Procedures), an emergency arbitrator has the same power as a constituted tribunal to grant preliminary or interim orders, including ex parte reliefs.

Express power for early determination

Article 30 of the 2026 ICC Rules introduces provisions on early determination, empowering arbitral tribunals to dispose of claims or defences that are manifestly without merit or manifestly outside their jurisdiction. Previously addressed only in the ICC’s Note to Parties and Arbitral Tribunals, the incorporation of this mechanism into the 2026 ICC Rules provides greater certainty and may encourage more frequent use. Hong Kong users and practitioners are already accustomed to early determination procedures under Article 43 of the 2024 HKIAC rules. ICC’s adoption reduces the distinction between two rules, raising the bar for case preparation and discouraging unmeritorious claims.

Arbitrator disclosure and other amendments

The 2026 ICC Rules reorganise provisions on arbitrator disclosure while maintaining the core standards of independence and impartiality. Parties must now provide a list of related entities and individuals at the outset (Article 12(5)), and arbitrators are obliged to disclose any circumstances in case of doubt (Article 12(2)). Tribunal secretaries, whose role is now formally specified, must meet the same independence and impartiality requirements as arbitrators (Article 44). The 2026 ICC Rules clarify that disclosure does not, by itself, establish a lack of independence or impartiality (Article 12(4)). This has to be the right approach particularly with well-founded concerns within the disputes community about undisclosed potential arbitrator conflicts.

Other notable changes include the adoption of electronic communications as the default (Article 3), removal of the 6-month limit for the issuance of award and replace it with a more flexible regime for time limits on awards (Article 34), and express confidentiality obligations on arbitrators (Article 12(8)). The 2026 ICC Rules continue not to impose a default confidentiality obligation on parties, reflecting the diversity of ICC arbitrations, including those involving states or matters of public interest. Parties with specific confidentiality needs should ensure that appropriate provisions are included in their contracts and in Procedural Order No. 1.

Concluding remarks 

The 2026 ICC Rules mark an important step in modernizing the ICC rules, bringing them closer to the procedural expectations of leading arbitration seats such as Hong Kong. By removing the mandatory Terms of Reference, introducing the HEAP, and expanding emergency arbitration provisions, the ICC signals its responsiveness to user feedback and its determination to remain competitive with other prominent centres.

For practitioners in Hong Kong, the real impact will lie in how arbitral tribunals and the parties deploy these new tools. The 2026 ICC Rules reflect a welcome general trend in the development of arbitration practice: greater efficiency, earlier case preparation, and more flexible procedures that can be tailored to the complexity of each dispute.

Authored by Byron Phillips and Eva Yao.