The revised ICC Rules of Arbitration came into force on 1 June 2026, replacing the 2021 edition that had governed ICC arbitrations for the preceding five years. For parties involved in international construction projects, where disputes are often high-value, multi-party, and document-intensive, several of the amendments are of particular practical significance. This article summarises the most important changes and considers their implications for construction arbitration.
Farewell to the Terms of Reference
Perhaps the most structurally significant change for construction practitioners is the elimination of the Terms of Reference. Under the 2021 Rules, the arbitral tribunal was required, within 30 days of receiving the file, to draw up a document defining the parties, their claims, the relief sought, a list of issues, and other procedural particulars, which then had to be signed by the parties and the tribunal or approved by the Court. This requirement has been removed entirely in the 2026 Rules. In its place, the tribunal must hold an initial case management conference (“CMC”) within 30 days of receiving the file from the Secretariat. During or shortly after this CMC, the tribunal establishes the procedural timetable for the efficient conduct of the arbitration.
For construction disputes, which frequently involve evolving claims, complex quantum issues, and multiple work-streams, the abolition of the Terms of Reference removes what was often a time-consuming procedural bottleneck. It also aligns the Rules more closely with the approach of other major arbitral institutions and eliminates the practical difficulty of defining issues at an early stage in disputes where claims may still be crystallizing.
Expanded Multi-Party and Multi-Contract Provisions
Construction projects routinely involve employers, contractors, subcontractors, engineers, and other participants operating under interrelated contracts. The 2026 Rules make several refinements to the multi-party framework that are directly relevant.
Under the 2021 Rules, joinder of additional parties after the confirmation or appointment of any arbitrator required the additional party to accept the tribunal’s constitution and agree to the Terms of Reference. The 2026 Rules retain the requirement that the additional party accept the tribunal’s constitution, but now require the tribunal itself to decide whether to accept the joinder request, taking into account whether it has prima facie jurisdiction, the timing of the request, possible conflicts of interest, and the effect on the arbitral procedure. This provides a clearer and more structured framework for late joinder applications, which is not uncommon in construction disputes where parties further down the contractual chain may be brought in after proceedings have started.
The multiple contracts provision remains substantively similar: claims arising out of or in connection with more than one contract may be made in a single arbitration, irrespective of whether such claims are made under one or more arbitration agreements under the Rules. This continues to facilitate the resolution of disputes spanning multiple contracts between the same parties.
Early Determination of Claims
An entirely new mechanism introduced by the 2026 Rules is the early determination procedure under Article 30. Any party may apply to the arbitral tribunal for early determination of one or more claims or defences on the grounds that they are manifestly without merit or manifestly outside the tribunal’s jurisdiction. If the tribunal allows the application to proceed, it has discretion to adopt whatever procedural measures it considers appropriate, after consulting the parties.
In construction arbitrations, where parties sometimes face unmeritorious counterclaims or jurisdictional objections that threaten to extend proceedings and inflate costs, this provision offers a valuable tool for disposing of weak claims efficiently. It may prove especially useful in cases involving claims against parties whose contractual obligations are clearly defined, or where jurisdictional issues can be resolved on the documents alone.
Emergency Arbitrator and Preliminary Orders
Construction disputes often require urgent relief. For example, to prevent the drawing of performance bonds, to preserve evidence on site, or to ensure continuity of works. The 2026 Rules refine the emergency arbitrator framework in several notable respects.
An entirely new addition is the preliminary order mechanism in Article 7 of Appendix IV. A party may now request a preliminary order directing another party not to frustrate the purpose of the Application. Such a request may be made and decided upon without notice to the other parties, although the emergency arbitrator must immediately afford the other parties a reasonable opportunity to present their case thereafter. For construction disputes, where the subject matter of urgent relief, such as calls on performance guarantees, like letters of credit, or the removal of equipment from site, can be rendered moot within hours, this ex parte mechanism adds a meaningful layer of protection.
Procedural Efficiency: Expedited and Highly Expedited Procedures
The 2026 Rules increase the threshold for automatic application of the Expedited Procedure Provisions to US$4,000,000 for arbitration agreements concluded on or after 1 June 2026, up from US$3,000,000 under the 2021 Rules. Within expedited proceedings, the tribunal retains broad discretion to limit or prohibit document production and to restrict the number, length, and scope of written submissions and witness evidence.
The 2026 Rules also introduce an entirely new “Highly Expedited Arbitration” procedure (Appendix VI), available where all parties agree. This procedure requires the tribunal to render its final award within three months of the initial CMC. Joinder and consolidation are not permitted under this procedure. While the three-month timeline may be too aggressive for complex construction disputes, it could prove suitable for discrete, lower-value issues that arise during a project, like disputes over variation orders or payment certifications, where commercial certainty is paramount and cash flow implications require quick determinations.
Tribunal Secretary Provisions
The 2026 Rules formalise the role of the tribunal secretary for the first time. Article 44 provides that the arbitral tribunal may, after consulting the parties, appoint a tribunal secretary to work under the tribunal’s direction and control, without delegating its decision-making authority. Tribunal secretaries must satisfy the same independence, impartiality, and confidentiality requirements as arbitrators and must sign a statement of acceptance before appointment. Importantly, the tribunal may claim reimbursement only for a tribunal secretary’s reasonable and justified expenses; direct fee arrangements between the tribunal and the parties regarding the secretary’s fees are prohibited.
For construction arbitrations, which frequently involve voluminous documentation, complex expert evidence, and extended timelines, the codification of the tribunal secretary’s role provides welcome clarity regarding the permissible scope of administrative support.
Changes to Costs and Financial Administration
The 2026 Rules transfer a number of costs-related decisions from the Court to the Secretary General, including the fixing and readjustment of the advance on costs. The advance is now calculated in accordance with the amount in dispute and the Schedule of Fees, rather than being fixed at the Court’s discretion.
The Rules also provide more structured guidance on instalment payments, with the Secretary General now empowered to authorise payment of advances in instalments. Bank guarantees remain available for amounts exceeding a threshold, and the provisions governing their use have been consolidated into a single article.
For high-value construction disputes, where the advance on costs can be substantial, the streamlined administration and the formalization of instalment and guarantee arrangements should assist parties in managing cash-flow burdens at the outset of proceedings.
Conclusion
The 2026 ICC Rules represent a measured modernization rather than a radical overhaul, but they introduce several changes that are of real practical significance for construction arbitration. The abolition of the Terms of Reference, the new early determination procedure, the expanded emergency arbitrator framework with preliminary orders, and the formalization of the tribunal secretary role collectively enhance the toolkit available to parties and tribunals in managing complex, document-heavy construction disputes efficiently. Parties with ICC arbitration agreements would be well advised to familiarise themselves with these changes and to consider whether their dispute resolution clauses should be updated to take full advantage of the new provisions.