Construction disputes – adjudication under Polish

A Warsaw-based developer receives a contractor's claim for an additional PLN 8 million on a logistics centre project in Mazowieckie. The contractor invokes FIDIC Sub-Clause 20.1 and demands a Dispute Adjudication Board (DAB) decision within 84 days. The developer's in-house team has never run a FIDIC adjudication in Poland. The clock is already running.

FIDIC adjudication in Poland follows the standard FIDIC Red, Yellow, and Silver Book procedures, but operates within the framework of Polish civil procedure and contract law under the Kodeks cywilny (Civil Code, KC) and the Kodeks postępowania cywilnego (Code of Civil Procedure, KPC). A DAB decision is binding and must be complied with promptly, even if one party intends to challenge it through arbitration. Failure to comply with a binding DAB decision precludes reliance on that non-compliance as a defence in subsequent arbitral proceedings and may trigger immediate enforcement steps under Polish law.

This guide walks through the full adjudication procedure step by step: how claims are notified, how a DAB is constituted, what the 84-day decision window means in practice, what Polish courts and arbitral tribunals expect when a DAB decision is contested, and how to avoid the mistakes that turn manageable disputes into multi-year proceedings. Three business scenarios – a manufacturing plant fit-out, a logistics centre shell-and-core project, and a foreign investor's mixed-use development – illustrate where the process most commonly breaks down.

What is FIDIC adjudication and how does it fit Polish law?

FIDIC adjudication is a structured, time-bound dispute resolution mechanism built into all major FIDIC suites. Under the Red Book (construction by employer's design) and Yellow Book (design-and-build), a three-member DAB is appointed at the outset of the project. The Silver Book provides a single adjudicator as default. The DAB issues binding decisions within 84 days of receiving a referral. Either party may give a notice of dissatisfaction within 28 days, triggering the right to arbitration – typically under the rules of the Court of Arbitration at the Polish Chamber of Commerce (Sąd Arbitrażowy przy Krajowej Izbie Gospodarczej, SA KIG).

Polish law does not contain a standalone adjudication statute equivalent to the UK Housing Grants Act. Instead, FIDIC adjudication in Poland derives its force from the contractual agreement of the parties. The Civil Code recognises party autonomy in dispute resolution. The National Court Register (Krajowy Rejestr Sądowy, KRS) filing of a project entity does not itself affect adjudication jurisdiction, but it does confirm the legal capacity of the contracting parties – a point arbitral tribunals examine when enforcement is sought.

Three elements distinguish FIDIC adjudication from ordinary contractual expert determination under Polish law. First, the "pay now, argue later" principle: a binding DAB decision must be performed regardless of a pending notice of dissatisfaction. Second, the DAB's decision is not itself a title for enforcement by a Polish court without further steps. Third, if neither party gives a notice of dissatisfaction within 28 days, the decision becomes final and binding – and Polish courts have consistently refused to re-examine the merits of final DAB decisions when enforcement is sought through arbitration.

For foreign investors entering Poland, this last point is significant. A German or Dutch developer unfamiliar with Polish adjudication practice may miss the 28-day window, inadvertently converting a binding decision into a final one. The consequences are irreversible.

How is a DAB constituted and what does it cost?

Under the Red Book, the DAB must be appointed by the date stated in the contract appendix – typically within 28 days of the contract coming into effect. Each party nominates one member; the two nominees jointly propose a third (the chairman). If agreement fails, the appointing authority named in the contract – often the International Federation of Consulting Engineers (FIDIC) itself or SA KIG – steps in. Delay in constitution is one of the most common procedural failures on Polish construction projects.

DAB member fees in Poland typically range from EUR 3,000 to EUR 8,000 per member per referral, depending on project complexity and the member's profile. A three-member board on a PLN 50 million claim can therefore cost each party EUR 5,000 to EUR 12,000 in adjudicator fees alone, before legal representation costs. This is substantially lower than full arbitration, which is a core rationale for the mechanism.

We secured the appointment of an emergency replacement DAB chairman for a manufacturing client in Mazowieckie (spring 2025), after the original chairman withdrew mid-proceeding. The replacement was confirmed within 14 days, preserving the 84-day decision window and avoiding a costly procedural restart.

A practical checklist before referral:

Confirm the DAB appointment date in the contract appendix and verify current member availability.
Check whether the appointing authority clause is operative – some Polish contracts name an authority that no longer accepts appointments.
Obtain written confirmation from each DAB member of independence and impartiality under the FIDIC General Conditions of Dispute Adjudication Agreement.
Agree the DAB's procedural rules in writing before the referral is filed.
Budget for site visits – DAB members on Polish infrastructure projects routinely request at least one, adding 7 to 14 days to the timetable.

For projects where no DAB was constituted (a frequent omission on smaller Polish commercial builds), the parties default to arbitration directly. Polish courts will not appoint a DAB in place of the parties. This forfeits the cost and speed advantages of adjudication entirely.

What is the step-by-step adjudication procedure under FIDIC?

The adjudication procedure under FIDIC follows a fixed sequence. Missing any step can invalidate the referral or forfeit the right to challenge the decision. The timeline below applies to the Red Book; Yellow Book timelines are identical for the dispute resolution chapter.

Step 1 – Notice of Claim (Day 0). The claiming party notifies the Engineer (in Red/Yellow Book projects) or the other party (Silver Book) of its intention to claim. Under FIDIC Sub-Clause 20.1, this notice must be given within 28 days of the event giving rise to the claim. Missing this deadline extinguishes the claim. Polish courts and arbitral tribunals applying FIDIC have treated this as a strict condition precedent, not a procedural formality.

Step 2 – Engineer's Determination (Days 28–84). The Engineer issues a determination within 42 days of receiving the fully detailed claim. If the Engineer fails to act, either party may refer the dispute to the DAB immediately. In practice, Polish Engineers' determinations are often delayed. Document every request for a determination and every instance of non-response – this record is critical at the DAB stage.

Step 3 – DAB Referral (Day 0 of adjudication). Either party may refer a dispute to the DAB at any time. The referral must include the full claim, supporting documents, and a statement of relief sought. The DAB then has 84 days to issue its decision, extendable by agreement.

Step 4 – DAB Decision and Compliance. The DAB decision is binding. Both parties must comply promptly – Polish commercial practice treats "promptly" as within 28 days absent a contrary contractual term. A party that fails to comply, even while pursuing a notice of dissatisfaction, risks a separate arbitral claim for non-compliance. Personal liability of directors of a Polish spółka z ograniczoną odpowiedzialnością (limited liability company, sp. z o.o.) does not arise directly from DAB non-compliance, but enforcement through Polish courts can attach company assets within weeks.

Step 5 – Notice of Dissatisfaction (within 28 days of decision). If either party is dissatisfied, it must give written notice within 28 days. This preserves the right to arbitration. Failure to give notice within 28 days converts the binding decision into a final and binding one.

Step 6 – Amicable Settlement Attempt (56 days). FIDIC requires the parties to attempt amicable settlement for 56 days after the notice of dissatisfaction before commencing arbitration. Polish practice shows this period is frequently used for parallel negotiations, sometimes successfully.

Our team obtained a favourable DAB decision – with a net award exceeding PLN 4.5 million – for a logistics developer in Lower Silesia (autumn 2024), by reconstructing a complete contemporaneous records trail after the contractor disputed the Engineer's delay analysis.

What are the most common mistakes in Polish FIDIC adjudication?

Three business scenarios illustrate where Polish FIDIC adjudications most frequently fail.

Scenario A – Manufacturing plant fit-out, Silesia. A Polish manufacturer engaged a fit-out contractor under a Yellow Book variant. The contractor submitted a variation claim 40 days after the instruction was issued. The employer's legal team argued the 28-day notice deadline under Sub-Clause 20.1 had expired. The DAB agreed. The contractor forfeited a claim worth approximately PLN 2 million because its site manager did not understand that the 28-day clock runs from the instruction date, not from the date the cost impact became clear. This is the single most common and irreversible mistake in Polish FIDIC practice.

Scenario B – Logistics centre, Mazowieckie. The employer failed to constitute the DAB within 28 days of contract effectiveness. When a dispute arose 18 months later, the parties spent six weeks arguing about DAB constitution before the appointing authority – time that ate directly into the project's practical completion schedule. The lesson: treat DAB constitution as a project milestone, not a legal formality.

Scenario C – Foreign investor's mixed-use development, Małopolska. A Dutch investor's Polish subsidiary received a binding DAB decision requiring payment of EUR 1.1 million to the contractor. The investor's head office instructed local counsel to "hold payment pending internal approval." The 28-day compliance window passed. The contractor commenced a separate arbitration for non-compliance with a binding decision. The investor ultimately paid the original EUR 1.1 million plus arbitration costs exceeding EUR 200,000. Non-compliance with a binding DAB decision is not a legitimate litigation strategy. It precludes any cost-neutral outcome.

Beyond these scenarios, four recurring procedural errors deserve attention. First, submitting a DAB referral without a complete contemporaneous records bundle – DAB members in Poland expect documentary evidence, not narrative. Second, failing to brief the DAB on Polish statutory provisions that interact with FIDIC, such as the rules on subcontractor payment security under the Prawo budowlane (Construction Law, PB). Third, treating the 56-day amicable settlement period as dead time rather than a negotiation window. Fourth, ignoring the interaction between FIDIC adjudication and spatial planning constraints – for background on how zoning affects construction obligations in Poland, see our analysis at spatial planning and zoning rules in Poland.

A specific note for tenants and occupiers: FIDIC adjudication principles increasingly influence commercial lease disputes where fit-out works are involved. For guidance on lease review in a Polish context, see office lease review – key points for Ukraine tenants.

To receive an expert assessment of your FIDIC claim position before the 28-day notice deadline expires, contact info@kordeckipartners.com.

Every FIDIC adjudication in Poland involves at least one procedural deadline that, once missed, forfeits a substantive right permanently. A specific review of your project's claim history and DAB constitution status – conducted before any referral is filed – is the single most cost-effective step available. Contact KORDECKI & Partners to discuss your situation: info@kordeckipartners.com.

How do Polish courts and arbitral tribunals treat DAB decisions?

Polish arbitral tribunals – primarily SA KIG and the Court of Arbitration at the Lewiatan Confederation (Sąd Arbitrażowy przy Konfederacji Lewiatan) – have developed a consistent approach to DAB decisions over the past decade. A binding but not yet final DAB decision is treated as a contractual obligation. Arbitral tribunals will order compliance as interim relief pending the substantive merits hearing. This means a party can obtain an arbitral interim order within 30 to 60 days of filing, effectively enforcing the DAB decision before the main arbitration concludes.

A final and binding DAB decision (where no notice of dissatisfaction was given within 28 days) is treated differently. Arbitral tribunals will not re-examine the merits. They will issue an award in terms of the DAB decision, which then becomes enforceable under the Kodeks postępowania cywilnego (Code of Civil Procedure, KPC) as an arbitral award. Polish district courts (sądy okręgowe) have consistently confirmed such awards, provided the DAB was properly constituted and the procedural steps were followed.

One structural complexity arises in cross-border projects. Where the investor is a non-EU entity, enforcement of a Polish arbitral award abroad may require reliance on the New York Convention. Polish courts have granted exequatur for FIDIC-based arbitral awards involving DAB decisions in proceedings lasting 3 to 6 months. This is relevant for projects involving Ukrainian or CIS-based contractors – an area where our Ukrainian and CIS Desks provide specialised support.

For technology-sector clients and financial institutions with overlapping regulatory compliance obligations, the interaction between contractual dispute mechanisms and regulatory frameworks is increasingly relevant – see our overview at DORA compliance – who must comply and by when.

Polish courts will not enforce a DAB decision directly as a court order. The route is always: DAB decision → arbitral award → court enforcement. This three-stage process takes a minimum of 6 to 9 months from DAB decision to enforceable court order. Parties who assume they can obtain a court injunction based on a DAB decision alone will lose critical time.

Frequently asked questions

Q: How long does FIDIC adjudication actually take in Poland, from referral to decision?

A: The FIDIC General Conditions allow 84 days from referral to DAB decision, extendable by agreement. In Polish practice, the 84-day window is usually respected on well-administered projects. However, delays in document translation, site visits, and DAB member availability frequently push the effective timeline to 100 to 120 days. Budget for this when planning project cash flow. If the DAB fails to issue a decision within the agreed period, either party may refer the dispute directly to arbitration under the FIDIC dispute escalation ladder.

Q: Is it a misconception that a DAB decision automatically becomes enforceable in a Polish court?

A: Yes – this is the most common misconception among non-specialist Polish construction lawyers. A DAB decision is a contractual obligation, not a court judgment or arbitral award. It cannot be enforced directly by a Polish court. Enforcement requires converting the DAB decision into an arbitral award, which then becomes enforceable under the Code of Civil Procedure. Skipping this step wastes time and legal costs. The conversion process through SA KIG typically takes 4 to 8 months, depending on whether the opposing party contests the award.

Q: What happens if the contract does not include a FIDIC DAB clause – can adjudication still be used?

A: If the contract is silent on adjudication, the parties cannot be compelled to use a DAB under Polish law. There is no statutory adjudication right in Poland equivalent to the United Kingdom or Ireland systems. However, parties may agree post-dispute to appoint an expert or adjudicator on an ad hoc basis under the Civil Code's provisions on expert determination (umowa o dzieło or expert opinion clauses). This ad hoc route lacks the procedural rigour of FIDIC adjudication and its decisions carry less weight before arbitral tribunals. Prevention – building a proper DAB clause into the contract at drafting stage – is always preferable to ad hoc remedies.

KORDECKI & Partners is a law firm based in Warsaw and Krakow, advising business clients across 30 jurisdictions. Our team combines expertise in Polish and international law with a practical approach to construction disputes, FIDIC adjudication, and real estate transactions. We work with Polish entrepreneurs, foreign investors, and in-house legal teams. To discuss your situation, contact info@kordeckipartners.com.

For a tailored strategy on FIDIC adjudication procedure, DAB constitution, or enforcement of DAB decisions in Poland, reach out to info@kordeckipartners.com.