Clause 20 of the FIDIC Conditions of Contract is often treated like the strict
school principal of dispute resolution, procedural, inflexible, and always watching the clock. It lays out a structured escalation path: notify, refer to the Engineer, wait, and only then knock on the doors of arbitration. Claimants have long learned to follow this path carefully.
school principal of dispute resolution, procedural, inflexible, and always watching the clock. It lays out a structured escalation path: notify, refer to the Engineer, wait, and only then knock on the doors of arbitration. Claimants have long learned to follow this path carefully.
From an institutional perspective, the ICC Rules allow tribunal’s discretion under Article 23(4) to admit new claims post-Terms of Reference, but that discretion does not override clear contractual requirements. Where a contract prescribes prearbitral steps, tribunals often distinguish between:
Affirmative counterclaims seeking relief independent of the Claimant’s claims (e.g., damages, time extensions), which generally must satisfy Clause 20 requirements;
Defensive counterclaims or set-offs, which arise purely in response to the Claimant’s claims and are presented not as standalone relief but as a rebuttal or mitigation of liability
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