The Increased Expedited Procedure Threshold under the 2026 ICC Rules: What Does It Mean for Mid-Value Construction Disputes in the UAE?
min readWhy Should Construction Practitioners Pay Attention to the 2026 ICC Rules?
On 1 June 2026, the revised ICC Rules of Arbitration ("2026 ICC Rules") entered into force, replacing the 2021 edition.[1] The same date also marked the commencement of the New UAE Civil Code (Federal Decree-Law No. 25 of 2025). Whilst a lot of commentary has focused on the abolition of mandatory Terms of Reference and the new Highly Expedited Arbitration Provisions, another change of significance is the increase in the monetary threshold for the automatic application of the Expedited Procedure Provisions ("EPP") from USD 3 million to USD 4 million.[2]
The ICC has indicated that over 40% of its 2025 caseload involved amounts in dispute of USD 4 million or less. [3] A substantial proportion of ICC arbitrations will therefore now proceed under the EPP by default. For construction disputes — typically document-heavy, technically complex, and reliant on expert evidence — the question is whether the EPP is well-suited to the sector, and what steps parties should take at the contract drafting stage.
What Are the Expedited Procedure Provisions?
The EPP were first introduced in 2017. They apply automatically where: (i) the arbitration agreement was concluded on or after the relevant threshold date; (ii) the amount in dispute does not exceed the threshold; and (iii) the parties have not opted out. [4] The 2026 ICC Rules raise the threshold to USD 4 million for arbitration agreements concluded on or after 1 June 2026. [5]
The key procedural features are significant. The ICC Court may appoint a sole arbitrator notwithstanding any contrary provision in the arbitration agreement. [6] The CMC must be convened within 15 days of the file being transmitted to the tribunal. [7] The tribunal may limit or refuse document production, limit the scope of written submissions and witness evidence, and may decide the case on a documents-only basis without a hearing. [8] The final award must be rendered within six months of the CMC. [9] Arbitrator and administrative fees are reduced.
The ICC Court retains power to determine that the EPP should no longer apply to a particular case. [10] This acts as a safety valve, but in practice has been exercised infrequently. [11]
How Does the Increased Threshold Affect Construction Disputes?
Construction disputes in the USD 3–4 million range are commonplace in the UAE, particularly on fit-out projects, specialist subcontracts and consultancy appointments. A claim for unpaid interim payment certificates, a disputed variation account, or a delay damages counterclaim can easily fall within this bracket. Many such disputes are factually and technically complex, even if the sums are modest. The practical consequence is that parties who have not addressed the EPP in their arbitration clause may find themselves before a sole arbitrator, with limited document production and a six-month timeline, in circumstances they did not anticipate.
Is a Sole Arbitrator Appropriate for Construction Disputes?
The default appointment of a sole arbitrator is perhaps the feature most likely to give construction practitioners pause. Construction disputes frequently involve concurrent delay analysis, forensic quantum assessments, competing expert evidence, and interpretation of heavily amended FIDIC conditions. A three-member tribunal offers collective deliberation and a broader range of expertise. A sole arbitrator bears the full burden alone. The ICC Court retains discretion to appoint three arbitrators where appropriate, [12] but parties should not assume such a request will be granted.
As such, this places significant importance on the selection of the arbitrator. The 2026 ICC Rules improve this, now expressly providing that expertise and experience are relevant considerations in appointments (Article 14(1)). [13] An experienced construction arbitrator will be better equipped to manage more complex disputes effectively within the EPP framework, provided the case is properly prepared.
What About Expert Evidence?
Expert evidence is a staple of construction arbitration. However, the ICC's own data reveals that expert evidence has been used in only 18 of the 341 EPP cases in which final awards were rendered between 2017 and 2023. [14]
The tribunal retains discretion to permit it, but a six-month timeline naturally constrains the scope. This may be problematic where the dispute turns on a contested critical path delay analysis or a complex quantum assessment.
Parties should consider whether their likely disputes require fully developed expert evidence, as this will inform the opt-out decision.
Should Parties Opt Out?
A straightforward payment dispute may be well-suited to the EPP. A multi-faceted dispute involving concurrent delay, defects, variations, and prolongation is likely to require a more expansive procedural framework. The question, therefore, is whether to opt out.
The 2026 ICC Rules preserve party autonomy. Parties may agree to opt out of the EPP at any time. [15] The ICC publishes recommended model language: "The Expedited Procedure Provisions shall not apply." Equally, parties above the threshold may opt in. [16] However, any such agreement requires the consent of all parties. Once a dispute has arisen, it is unlikely that both sides will agree, as one party will almost invariably see a tactical advantage in the EPP applying, or not, and seek to exploit it.
Whilst the Court retains power under Article 1(6) of Appendix V to disapply the EPP on its own motion or at the request of a party, this is not a power the Court is likely to exercise lightly. [10] Even if such an application were made at the earliest opportunity, the Court would in effect be overriding a procedural framework that the parties had agreed to in the Contract, when they accepted the Rules.
Furthermore, the decision of the Court would be imposing a more costly and time-consuming process on the parties, in circumstances where the amount in dispute falls squarely within the EPP threshold.
As such, the better course is to address these matters at the contract drafting stage, before positions have hardened.
How Does the EPP Interact with FIDIC Arbitration Clauses?
FIDIC contracts are the predominant standard form in UAE construction, and the standard dispute resolution clause provides for ICC arbitration. [17]
Under Sub-Clause 21.6 of the FIDIC Yellow Book (2017 edition), the standard clause provides for a three-member tribunal. Under the EPP, however, the ICC Court may override this and appoint a sole arbitrator. [18] A standard, unamended FIDIC arbitration clause does not protect against the EPP's default application.
As such, developers and contractors who are not keeping up with these changes to the rules may be very surprised by what they have agreed to, by adopting a standard clause that prescribes something very different.
In the UAE, where FIDIC contracts are frequently subject to extensive particular conditions, those conditions should address the EPP expressly, as silence will result in the EPP applying by default.
What Practical Steps Should Parties Take?
Parties should consider whether the EPP is right for them and, if so, to what extent.
The EPP can be an effective way to expedite straightforward proceedings. However, construction disputes are rarely straightforward. A hearing is often critical to allow the tribunal to resolve misunderstandings on complex technical issues through direct dialogue with counsel and experts. Where a matter is decided on the papers, there is a real risk that such misunderstandings remain unresolved, potentially leading to adverse outcomes.
Parties should therefore consider addressing in their contracts the circumstances in which the EPP would not apply — for example, by setting additional thresholds based on the complexity or nature of the dispute.
Conclusion
The increase of the EPP threshold to USD 4 million is a welcome step towards efficiency. For many construction disputes, the streamlined process will be advantageous. However, the EPP is not universally suited to all construction disputes, particularly those involving significant technical complexity or multi-faceted claims. The decision whether to opt in or opt out should be made deliberately at the contract drafting stage. As the UAE construction sector adapts to the dual transition of the New Civil Code and the 2026 ICC Rules, careful drafting of dispute resolution clauses has never been more important.
This article is for general information only and does not constitute legal advice. Independent legal advice should be sought in relation to any specific matter.
Endnotes
[1] ICC, "New ICC Rules of Arbitration enhance efficiency, clarity and usability", 22 May 2026: https://iccwbo.org/news-publications/news/new-icc-rules-of-arbitration-enhance-efficiency-clarity-and-usability/
[2] 2026 ICC Arbitration Rules, Appendix V, Article 1(3)(c).
[3] ICC, "Unveiling the 2026 ICC Arbitration Rules, part 3: Expedited Procedure Provisions and Emergency Arbitration", 19 May 2026: https://iccwbo.org/news-publications/news/unveiling-the-2026-icc-arbitration-rules-part-3-expedited-procedure-provisions-and-emergency-arbitration/
[4] 2026 ICC Arbitration Rules, Article 32 and Appendix V, Article 1.
[5] 2026 ICC Arbitration Rules, Appendix V, Article 1(3)(c).
[6] 2026 ICC Arbitration Rules, Appendix V, Article 2(1).
[7] 2026 ICC Arbitration Rules, Appendix V, Article 3(1).
[8] 2026 ICC Arbitration Rules, Appendix V, Articles 3(2) and 3(3).
[9] 2026 ICC Arbitration Rules, Appendix V, Article 4.
[10] 2026 ICC Arbitration Rules, Appendix V, Article 1(6).
[11] ICC Commission on Arbitration and ADR, "Expedited Procedure Provisions: Eight Years On" (2026), discussed in Jus Mundi: https://jusmundi.com/en/document/publication/en-expedited-procedure-provisions-eight-years-on
[12] 2026 ICC Arbitration Rules, Appendix V, Article 2(1).
[13] 2026 ICC Arbitration Rules, Article 14(1).
[15] 2026 ICC Arbitration Rules, Appendix V, Article 1(4)(b).
[17] FIDIC Conditions of Contract for Plant and Design-Build (Yellow Book, 2nd edition, 2017), Sub-Clause 21.6.
