Tribunal’s Discretion and Procedural Pragmatism
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.