1. ICC 2026 Rules: Speed and Efficiency
Welcome new features of the ICC 2026 Rules aimed at enhancing speed and efficiency include a “highly expedited” arbitration procedure to deliver an award within only three months and a formal mechanism for the early determination of claims or defences that are manifestly without merit. Tribunals are also no longer required to prepare Terms of Reference. A summary of key changes, which are likely to be popular among arbitration users, is available here.
2. ICC 2026 Rules: Emergency Arbitration Upgraded
EA mechanisms enable parties to quickly obtain urgently needed interim measures in the period before an arbitral tribunal has been constituted (which can take weeks or months). They can provide a useful alternative to obtaining such relief from national courts and therefore now feature in the rules of all major arbitral institutions.
The ICC 2026 Rules retain the key features of the EA mechanism in the ICC 2021 Rules, which worked well in practice. In summary, upon receiving a party’s EA application, the ICC Secretariat will aim to appoint an Emergency Arbitrator within two days. The Emergency Arbitrator will then have 15 days to receive submissions from the parties and issue a decision in the form of an Order.
However, the ICC 2026 Rules introduce at least two key upgrades.
First, the ICC 2021 Rules did not expressly deal with whether an Emergency Arbitrator could grant interim relief during the EA proceedings (e.g., to prevent the counterparty frustrating the EA proceedings in the period before the Emergency Arbitrator had issued the Order). While some ICC Emergency Arbitrators had been willing to imply such a power, the absence of an express rule created unwelcome uncertainty (See ICC Commission Report, ‘Emergency Arbitration Procedures’, 2019).
The ICC 2026 Rules helpfully remove this uncertainty by expressly confirming that Emergency Arbitrators are so empowered: “[a] party may, at any stage of the emergency arbitrator proceedings, request a preliminary order directing another party not to frustrate the purpose of the Application (“Preliminary Order”)”(Appendix IV, Article 7(1)).
In an eye-catching move, the ICC 2026 Rules also go a step further by empowering Emergency Arbitrators to grant Preliminary Orders on an ex parte basis: “Such request [for a Preliminary Order] may be made [by a Party] and decided upon [by the Emergency Arbitrator] without notice to all other parties”(Appendix IV, Article 7(1)).
To safeguard Parties’ due process rights, the ICC 2026 Rules incorporate procedural safeguards:
- as soon as the Emergency Arbitrator has decided a Preliminary Order request, the request and other materials must be transmitted to all other parties (Appendix IV, Article 7(3));
- if the Preliminary Order is granted, the Emergency Arbitrator must immediately give all other parties a reasonable opportunity to present their case (Appendix IV, Article 7(4)); and
- the Emergency Arbitrator can modify the Preliminary Order (Appendix IV, Article 7(4)).
Second, the ICC 2026 Rules expand the availability of Emergency Arbitration. Under the ICC 2021 Rules, Emergency Arbitration could only be commenced against signatories to the arbitration agreement and their successors. The ICC 2026 Rules expand this to encompass any party for which the ICC President is satisfied that an arbitration agreement binding such party may exist. For the avoidance of doubt, Emergency Arbitration is still not available where the arbitration agreement arises from an investment treaty (or, indeed, an investment law).
3. Commentary: Evolution or Revolution?
The ICC’s decision to empower Emergency Arbitrators to grant Preliminary Orders is a sensible, evolutionary step that the SIAC, HKIAC and PRIME Finance Rules have already taken (as previously discussed here and here). In practice, Preliminary Orders may help to reduce the risk of a party’s EA application being frustrated by the counterparty during the approximately 15-day period that it can take ICC Emergency Arbitrators to issue their Order.
The ICC’s decision to allow Preliminary Orders to be granted ex parte is a bolder step that potentially further enhances EA’s status as a viable alternative to obtaining interim relief from national courts. SIAC is the only other major arbitral institution to have permitted ex parte Preliminary Orders to date and, even then, SIAC’s equivalent Protective Preliminary Order mechanism in their 2025 Rules imposes more procedural restrictions than the ICC’s comparatively flexible approach. Taking a step back, the central challenge for arbitral institutions when formulating such mechanisms lies in reconciling a respondent’s right to be heard with an applicant’s interest in urgently obtaining relief. While it remains to be seen how ICC Emergency Arbitrators will grant ex parte Preliminary Orders in practice, the ICC 2026 Rules appear to strike a reasonable balance.
Finally, the expansion of EA proceedings to individuals who the ICC President considers may be bound by the arbitration agreement is welcome in responding to present-day commercial realities. Disputes are increasingly complex with the ICC’s statistics showing that over 30% of emergency applications filed in 2025 involved multiple parties. This amendment adds a welcome degree of flexibility.
Taken together, the ICC 2026 Rules’ amendments to the EA mechanism represent a meaningful and welcome upgrade to the interim measures toolkit available to arbitration users.
Of course, uncertainties remain. National courts may not be prepared to enforce Preliminary Orders. Notwithstanding this, the utility of EA mechanisms should not be underestimated. Non-compliance with a Preliminary Order could attract negative consequences from the Emergency Arbitrator or the subsequently constituted Tribunal, including adverse inferences and costs orders. More broadly, EA proceedings can affect the dynamics of a dispute by influencing negotiating leverage, setting the tempo of proceedings and creating pressure points that can drive early resolution of disputes.
4. Conclusion
The ICC’s introduction of an EA mechanism in their 2026 Rules permitting ex parte Preliminary Orders accords with the ICC’s long and storied history of international arbitration innovation. Indeed, the ICC’s introduction of a Pre-Arbitral Referee Procedure in 1990 arguably laid the groundwork for modern day Emergency Arbitration. It will be interesting to see whether other major arbitral institutions join the ICC (and SIAC) by permitting ex parte Preliminary Orders in future editions of their arbitration rules.
