This article sets out some of the principal amendments to the 2026 Rules, compares them with current Danish arbitration practice, and considers their practical implications for businesses.
In brief
- Terms of Reference are no longer mandatory.
- New Early Determination mechanism.
- Introduction of a Highly Expedited Arbitration Procedure.
- Amendments to the Expedited Procedure Provisions.
- Emergency Arbitration Provisions strengthened.
Terms of Reference are no longer mandatory
Under the 2021 Rules, arbitral tribunals and parties were required to draw up Terms of Reference, a procedural document outlining the claims and the issues to be determined during the arbitration.
The 2026 Rules dispense with this mandatory procedural step while preserving the arbitral tribunal’s discretion to require them where appropriate. In practice, the preparation of Terms of Reference could be a resource- and time-consuming exercise at the early stages of proceedings, and dispensing with the requirement may therefore reduce both time and costs.
Users of the Danish Institute of Arbitration and the Danish courts, where the establishment of Terms of Reference is not required, are unlikely to experience this amendment as a groundbreaking change.
A novel access to Early Determination
Article 30 of the 2026 Rules introduces a formal procedure allowing parties to request the early determination of claims or defenses that are manifestly without merit or otherwise suitable for summary disposal, thereby reinforcing procedural efficiency and reducing costs incurred defending or pursuing claims without prospects.
The introduction of Article 30 aligns the ICC with other arbitral institutions such as the Singapore International Arbitration Centre or the Hong Kong International Arbitration Centre. Article 30 has no direct equivalent under the rules of the Danish Institute of Arbitration.
It remains to be seen whether arbitral tribunals will make frequent use of Article 30 or exercise it cautiously because of due process concerns.
Expedited Arbitration frameworks to strengthen efficiency
Several other amendments to the 2026 Rules seek to reduce the time, procedural steps, and spending required to reach a final award:
Highly Expedited Arbitration Provisions: The new Highly Expedited Arbitration Provisions (Article 33 and Appendix VI of the 2026 Rules) further emphasize procedural efficiency and economy. The procedure applies only where all parties expressly agree and is designed for disputes requiring an exceptionally swift determination. The procedure provides for a sole arbitrator, extensive procedural flexibility, and a final award within three months of the initial case management conference.
Expedited Procedure Provisions: The preexisting Expedited Procedure Provisions (Article 32 and Appendix V of the 2026 Rules) are maintained but the monetary threshold for their automatic application has now been raised to USD 4 million (approx. DKK 26.3 million), for arbitration agreements concluded on or after 1 June 2026. Agreements concluded before that date continue to be governed by the previous thresholds of USD 3 million if the agreement was concluded on 1 January 2021 or before 1 June 2026 (approx. DKK 19.7 million) or USD 2 million (approx. DKK 13.1 million) if the arbitration agreement was concluded on or after 1 March 2017 and before 1 January 2021.
By increasing the automatic application from USD 3 million to USD 4 million, a significantly larger number of disputes will qualify for the streamlined procedure. Parties should expect lower procedural costs through shorter proceedings, fewer procedural steps, and a sole arbitrator.Arbitral tribunals may limit written submissions, document production and witness evidence, or decide the dispute without an oral hearing after consulting the parties. The final award must be rendered within six months of the initial case-management conference.
By comparison, the Danish Institute of Arbitration Express Arbitration Rules are not linked to a monetary threshold but apply only where the parties have expressly agreed to their use.
Given these relatively high thresholds, businesses negotiating arbitration agreements should therefore consider whether the automatic application of the Expedited Procedure Provisions reflects the complexity of the disputes they anticipate could arise under their agreements, and where appropriate, whether to opt out.
Emergency Arbitration Provisions: The Emergency Arbitration Provisions (Article 31 and Appendix IV of the 2026 Rules) have also been strengthened. Most notably, emergency arbitrators may now issue preliminary orders, including on an ex parte basis (Article 7(1) of Appendix IV), while the jurisdiction of emergency arbitration has been expanded to permit applications involving parties that are non-signatories to the arbitration agreement (Article 1(2)(c) of Appendix IV).
The 2026 Rules introduce a number of genuinely novel features alongside the ICC’s more familiar procedural toolkit. Businesses that already use ICC for arbitration, as well as those considering it for future contracts, should take the time to understand what these changes mean in practice and how they may affect existing and future arbitration cases. Plesner follows these developments closely and is available to guide clients, whether current or prospective users of the ICC.