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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What is this eBook about?
This eBook explores whether counterclaims in FIDIC-based construction contracts must comply with the same procedural steps as original claims under Clause 20. It offers legal, practical, and jurisdictional insights into how tribunals and courts treat such claims — especially when they bypass standard notice or Engineer engagement requirements.
Who should read this eBook?
The eBook is ideal for:
- Construction law professionals
- Arbitrators and legal counsel
- Engineers and contract managers
- Parties involved in FIDIC-governed projects
- Anyone navigating multi-tier dispute resolution procedures
What are the key takeaways?
Clause 20 applies to both claims and counterclaims unless explicitly excluded.
There’s a distinction between affirmative counterclaims (which seek independent relief and generally must follow Clause 20) and defensive counterclaims (which are more flexible).
Jurisdictions like India and UAE have evolving stances, shifting from rigid formality to nuanced procedural discretion.
Drafting clarity in Particular Conditions can significantly reduce future ambiguities.
How does this content relate to real-world disputes?
The eBook uses case law, tribunal rulings, and comparative legal interpretations to demonstrate how Clause 20 has been tested in arbitration. It highlights risks, strategies, and common pitfalls in managing claims and counterclaims during project disputes.
Is this eBook legally binding or advisory?
This publication is for informational purposes only. While it draws on legal analysis and case precedents, it is not a substitute for legal advice. Readers are encouraged to consult qualified counsel for specific situations.”