ICC Rules 2026: The Impact on the Economic Analysis of a Case

Introduction

The ICC Rules 2026 are now in force. What has received the least attention so far is how they reshape the economic analysis of a case.

As of 1 June 2026, arbitrations commenced before the International Chamber of Commerce (“ICC”) are governed by a new set of rules. Unsurprisingly, most of the commentary published in recent weeks has focused on the procedural and strategic implications for legal teams. There is, however, a complementary perspective that has attracted far less attention: how these changes affect when and how the economic analysis of a case must be developed, and why that effect will not be uniform across all parties. The 2026 reforms go beyond the issues addressed in this article; here, we focus on the three changes with the most direct implications for the development of a case’s economic analysis.

Fundamental Shift: Procedural Weight Moves to the Front End

The 2026 reforms are not a minor update. Taken together, they reflect a deliberate move toward a process in which parties’ positions must be substantially developed from the outset, rather than refined as the proceedings unfold. Three changes embody that logic.

1. The removal of the Terms of Reference (“ToR”) as a mandatory step. Under the previous rules, the tribunal was required, within the first 30 days after receiving the file, to prepare the document formally setting out the parties’ claims, the issues in dispute, and the scope of the case. Under the new rules, the ToR are discretionary. The tribunal may still draft them if it considers them useful, but in most cases it likely will not.
2. The consolidation of the Case Management Conference (“CMC”) as the new procedural anchor. The CMC remains mandatory and must be held within the first 30 days after the tribunal receives the file. It is at that stage that the procedural timetable will be established, including deadlines for expert reports and the exchange of evidence.
3. The introduction of the Highly Expedited Procedure (“HEAP”). This is an opt-in mechanism under which a sole arbitrator must render the final award within three months of the CMC. By the time the process reaches that conference, a substantial portion of both parties’ positions will already need to be set out in the initial submissions, with subsequent deadlines compressed by design.

Why This Adjustment Is Not Uniform

International arbitration has spent decades developing a procedural culture of its own, one that is itself hybrid in nature. Lawyers and arbitrators who operate regularly in this space have internalized that logic: they understand that submissions must be well developed from the outset, they know the real pace of proceedings, and they can anticipate what a tribunal is likely to require before it asks for it.

That, however, is not the core issue here. The more important point is that Latin America is now one of the fastest-growing regions in ICC arbitration. In 2024, Latin American parties increased from 14.5% to 21.4% of all parties in ICC proceedings — the largest regional increase recorded that year, according to the ICC’s official statistics. Seats in the region also expanded: 11 Latin American countries were selected as the seat in 12.7% of ICC cases in 2024, up from 10.8% the year before.

That growth has a direct consequence: more new cases mean more parties entering the mechanism, negotiating their first ICC clauses, and facing an ICC proceeding for the first time. They are doing so under a new set of rules that requires more front-end preparation than the framework that governed ICC cases over the past five years.

The Terms of Reference had functioned as an important adjustment valve during that early stage of a case: a formal and relatively early moment at which the scope of the dispute could be narrowed and agreed before the proceedings gathered speed. They allowed the legal theory of the case to be aligned with what was quantifiable and made it possible to correct claims that had been framed too broadly — or too conservatively — in the initial submission. With their removal, that valve disappears precisely at a time when the region is bringing more first-time users into the system.

What This Means for Damages Quantification

In arbitration, economic analysis and legal case theory are not separate exercises that can simply be stitched together at the end of the process. They are interdependent from the outset: the legal claim determines what must be quantified, and the quantification determines whether the legal theory is sustainable at the amounts being claimed. When that alignment fails, the consequences can be significant: an initial submission may commit the party to a theory of damages that the model cannot support, or a claim may be framed too conservatively because there was insufficient clarity as to what could be quantified and in what amount.

Under the previous rules, that alignment could develop progressively. Counsel would draft the initial submission, the Terms of Reference would help refine the scope of the dispute, and the economic analysis would take its final shape afterwards. That sequential process no longer works in the same way.

The CMC — which under the standard procedure takes place within the first 30 days, and under HEAP within seven days after the sole arbitrator receives the file — is the moment at which the expert timetable is established. Reaching that conference without having defined the scope of the economic mandate is, in practical terms, already too late. And under HEAP, where the award must be rendered within three months of that same conference, the quantitative analysis cannot be built reactively; it must already exist before the process demands it.

The change introduced by the ICC Rules 2026 is therefore not merely procedural. It redefines the point at which the economic analysis must be ready, and the level of precision it must have from the very start of the proceedings. For a region in which ICC arbitration is growing rapidly, and where more parties enter the mechanism each year, that adjustment arrives at precisely the moment when more parties will be facing it for the first time.

How We Approach It at Fortantis

At Fortantis, we work with legal teams and parties to develop the economic analysis from the earliest stages of the case — before the initial submission, not after it. That means defining what is quantifiable, under what assumptions, and with what sensitivity to the legal determinations the tribunal will ultimately have to make. This is not simply a methodological preference; it is what the structure of the process, under any set of rules, ultimately requires.

The ICC Rules 2026 make that logic more visible. And for Latin American parties facing this process for the first time — or facing it under a set of rules that has removed the space that previously existed to refine positions later in the proceedings — it is an adjustment worth anticipating.

Our Team

Fortantis is a boutique firm specialized in damages quantification and valuation in international arbitration. This is the team behind the analysis.

Source and Legal Disclaimer

Sources: ICC Dispute Resolution Statistics 2024, ICC International Court of Arbitration (primary source of statistical data); ICC Preliminary Dispute Resolution Statistics 2025; Signature Litigation / Law.com International, “ICC Court’s 2024 Statistics” (August 2025).

© 2026 Fortantis. All rights reserved. This document has been prepared for informational and general analytical purposes only, based on publicly available information as of the date hereof. It does not constitute legal, financial, or investment advice, nor does it represent an expert opinion in relation to any specific matter. Artificial intelligence-assisted tools may have been used to support structuring, editorial review, or preliminary analysis tasks. In no event did such tools replace the professional judgment of the authors, who reviewed, validated, and approved the final content. Any figures and scenarios presented herein are illustrative approximations and should not be interpreted as an independent valuation or as a prediction of the outcome of any arbitration. Fortantis makes no representation or warranty as to the accuracy, completeness, or currency of the information relied upon. No part of this publication may be reproduced or distributed without the prior written consent of Fortantis.