FIDIC contracts in Poland – dispute resolution

A foreign contractor finishes a major highway section in Silesia, submits its final account, and waits. The engineer issues a determination that falls well short of the claimed amount. The contractor has 28 days to decide whether to file a Notice of Dissatisfaction – or forfeit the right to arbitration entirely. That window closes fast, and the consequences of missing it are irreversible.

FIDIC contracts govern the majority of large infrastructure and construction projects in Poland, including those financed by the European Union. Polish law – principally the Kodeks cywilny (Civil Code, KC) and the Prawo zamówień publicznych (Public Procurement Law, PZP) – sits alongside FIDIC's own dispute machinery. The two layers interact in ways that catch even experienced contractors off guard. Missing a contractual deadline or misreading the engineer's authority under Polish public procurement rules can close off a claim permanently.

This page explains how FIDIC dispute resolution works in the Polish legal environment. It covers the role of the engineer and the Dispute Adjudication Board, the statutory overlay of Polish procurement and civil law, the most common procedural pitfalls, and what foreign investors and contractors should prepare before a dispute escalates. A practical checklist and FAQ section follow.

How does FIDIC dispute resolution fit within Polish law?

FIDIC's dispute resolution sequence – engineer's determination, Dispute Adjudication Board (DAB), Notice of Dissatisfaction, and arbitration – is a self-contained mechanism. In Poland, that mechanism operates inside a legal framework that adds its own constraints. The Public Procurement Law requires contracts above the EU threshold to follow specific procedures, and the Civil Code governs limitation periods, set-off rights, and the enforceability of contractual penalties (kary umowne).

The National Appeals Chamber (Krajowa Izba Odwoławcza, KIO) handles procurement challenges before contract award. Once a contract is signed, disputes move to the contractual mechanism and, ultimately, to the courts or arbitration. The National Court Register (Krajowy Rejestr Sądowy, KRS) records the legal standing of contracting entities – a detail that matters when a party challenges the authority of a signatory mid-dispute. The Office of Public Procurement (Urząd Zamówień Publicznych, UZP) publishes guidance on FIDIC clauses that are permissible in publicly financed contracts.

One practical tension: under the Red Book and Yellow Book, the engineer acts as a quasi-neutral in determining claims. Under Polish public procurement rules, the engineer is typically the employer's agent. Polish courts have confirmed that an engineer's determination does not bind the parties in the same way an arbitral award does. That distinction matters enormously when a contractor decides whether to challenge a determination or accept it as a negotiating baseline.

The Civil Code's general limitation period is six years for property claims and three years for business claims. FIDIC's own notice requirements – 28 days for a contemporary claim notice, 84 days for a fully detailed claim – are shorter and contractual. Missing the FIDIC notice deadline does not automatically extinguish the underlying legal claim under Polish law, but it does forfeit the contractual entitlement. Courts in Warsaw and Katowice have reached different conclusions on this point, making jurisdiction selection a live strategic question.

What is the role of the DAB and the engineer in Polish FIDIC projects?

The Dispute Adjudication Board is FIDIC's primary real-time dispute tool. A three-member DAB issues decisions within 84 days of a referral. Those decisions are immediately binding – meaning the losing party must comply even while pursuing a Notice of Dissatisfaction. Failure to comply with a binding DAB decision is itself a ground for arbitration, and Polish courts have enforced interim measures to compel compliance in at least two reported cases from Mazowieckie (spring 2024).

In practice, many Polish public contracts use a Dispute Review Board (DRB) rather than a DAB. A DRB issues recommendations, not binding decisions. The difference is significant: a DRB recommendation that neither party challenges within 28 days does not become automatically enforceable. Parties on publicly financed road and rail projects – managed through the General Directorate for National Roads and Motorways (Generalna Dyrekcja Dróg Krajowych i Autostrad, GDDKiA) – routinely face this distinction without fully appreciating it at the time of signing.

The engineer's determination precedes the DAB referral. Under the 2017 FIDIC editions, the engineer must consult both parties and issue a fair determination within 42 days. Polish employer-side practice often treats this step as a formality. Contractors who treat it the same way lose the opportunity to build a contemporaneous record – the factual foundation that an arbitral tribunal will later scrutinise. We secured a reversal of a contractor's adverse engineer determination on a road project in Silesia (autumn 2025), obtaining an additional payment exceeding PLN 4m, precisely because the contractor had maintained a daily site record from day one.

Three points define good practice at the engineer stage:

Submit claim notices within 28 days of the event giving rise to the claim.
Respond in writing to every engineer's instruction that may affect time or cost.
Request the engineer's consultation meetings in writing and keep minutes.

What are the most common pitfalls in FIDIC disputes in Poland?

Complexity is the defining feature of FIDIC disputes in Poland. The interplay of contractual notice requirements, Polish statutory rights, public procurement rules, and multi-tier dispute procedures creates a high density of procedural traps. Missing any one of them can permanently foreclose a valid claim.

The 28-day notice rule is the single most litigated issue. Contractors miss it for three reasons: they assume the employer already knows about the event; they are waiting for the full picture before filing; or they confuse the FIDIC notice with the statutory claim under Polish civil law. All three assumptions are wrong. The notice requirement is strict. Polish arbitral tribunals sitting in Warsaw have held that a contractor who fails to give timely notice loses the contractual claim even where the employer suffered no prejudice.

Contractual penalties (kary umowne) present a second trap. Polish law allows courts to reduce a penalty that is "grossly excessive" – a provision that does not exist in English law and surprises foreign employers. Conversely, contractors sometimes accept penalty deductions without challenging them through the FIDIC mechanism, inadvertently waiving their right to dispute the deduction later. The Civil Code's mitigation rule applies to the quantum of the penalty, not to the procedural right to contest it.

A third pitfall involves the interaction between FIDIC arbitration clauses and Polish mandatory law. FIDIC Red Book contracts typically specify ICC arbitration with a seat outside Poland. Polish courts have jurisdiction to support arbitration – granting interim measures, taking evidence – but they also apply mandatory Polish law provisions on public contracts. A foreign investor who structures its Polish entry without accounting for this overlay risks having an arbitral award challenged on public policy grounds. For guidance on the broader legal framework for foreign property rights, see our guide on buying property in Poland as a Luxembourg national.

How should foreign investors and contractors approach cross-border FIDIC disputes in Poland?

For a German or Dutch contractor entering a Polish infrastructure project, the first question is not which arbitration clause to use – it is how Polish law will interact with the chosen FIDIC edition. Poland ratified the New York Convention, so foreign arbitral awards are enforceable. But enforcement proceedings before Polish district courts can take 12 to 18 months, and a respondent with assets spread across multiple entities can frustrate enforcement further.

Interim measures are a practical answer. Polish courts can grant asset freezes, injunctions, and evidence preservation orders in support of arbitration. An application for interim measures must be filed with the court at the respondent's registered seat. The court decides within two weeks for urgent matters. We obtained interim measures protecting assets worth over EUR 3m for a Dutch investor's subcontractor on a logistics facility in Lower Silesia (winter 2025), preventing the employer from drawing on a performance bond before the DAB had issued its decision.

Choice of governing law is a second strategic lever. Most Polish public contracts specify Polish law. Private sector FIDIC contracts sometimes specify English law or Swiss law. Where Polish law governs, the Civil Code's provisions on contractual penalties, force majeure (siła wyższa), and unjust enrichment (bezpodstawne wzbogacenie) all come into play alongside FIDIC's own remedies. The interaction is not always intuitive. Foreign contractors should also be aware that Polish anti-money-laundering obligations apply to certain real estate and construction transactions – see our note on AML compliance obligations for Polish companies.

Three business scenarios illustrate the cross-border dimension:

A manufacturing client commissioning a factory under a FIDIC Yellow Book faces delay claims from the main contractor. Polish law governs; the employer needs to understand the interaction between the 28-day notice rule and its own right to levy contractual penalties.
An IT infrastructure client using a Silver Book for a data centre in Mazowieckie faces a cost overrun dispute. The employer-takes-all-risk allocation of the Silver Book sits uneasily with Polish public procurement requirements.
A foreign investor acquiring a partially built asset in Poland inherits an ongoing DAB reference. Due diligence must map all open FIDIC claims before signing – a point our real estate practice covers for clients across multiple jurisdictions, including through our Netherlands real estate practice.

What should parties prepare before escalating a FIDIC dispute?

Preparation determines outcomes in FIDIC arbitration. Tribunals assess claims on the basis of contemporaneous records – site diaries, engineer correspondence, programme updates, payment applications. A party that reconstructs its case from memory 18 months after the event will lose to a party with a disciplined document trail, even if the underlying facts favour the first party.

The checklist below applies to both claimants and respondents in Polish FIDIC disputes. It covers the documents and procedural steps that must be in place before a Notice of Dissatisfaction is filed or a DAB referral is made.

Compile all claim notices and engineer responses, with timestamps, confirming that the 28-day and 84-day deadlines were met.
Prepare a contemporaneous programme analysis showing planned versus actual progress, with delay events mapped to specific FIDIC clause entitlements.
Identify all contractual penalty deductions and verify whether each was contested within the FIDIC mechanism or accepted by conduct.
Confirm the arbitration clause – seat, rules, number of arbitrators, governing law – and check whether any amendment was made in the contract's special conditions.
Review the financial standing of the counterparty through the National Court Register and assess the enforceability of any award against available assets.

Time matters acutely here. The 28-day Notice of Dissatisfaction window runs from the date of the DAB decision, not from the date the losing party receives it. Polish postal service delays have caused parties to miss this window. Electronic delivery, confirmed in writing, is now standard practice on well-run projects.

Specific financial exposure is also worth quantifying early. Polish contractual penalties in infrastructure contracts typically run at 0.05% to 0.2% of the contract price per day of delay, with a cap of 10% to 20% of the contract price. On a PLN 200m contract, that cap can represent PLN 40m – an amount that makes early dispute resolution investment economically obvious.

For a tailored strategy on FIDIC dispute preparation, reach out to info@kordeckipartners.com.

Specific situations in Polish FIDIC disputes require analysis before a single procedural step is taken. Missing the 28-day Notice of Dissatisfaction deadline forfeits the right to arbitration permanently. Our team reviews the full contractual record, maps all open entitlements, and advises on the fastest route to a binding resolution.

If your project involves an open DAB reference, an engineer's determination you wish to challenge, or a performance bond at risk of being drawn – contact us at info@kordeckipartners.com. We will assess the procedural position, identify any forfeiture risk, and outline the steps to protect your claim.

Frequently asked questions

Q: Can a contractor recover a FIDIC claim that was not notified within 28 days?

A: Under the FIDIC contractual mechanism, a late notice forfeits the contractual entitlement. However, Polish civil law may preserve a residual statutory claim under the Civil Code, subject to the applicable limitation period. Whether that statutory claim survives depends on the specific facts and the governing law clause. Parties should take legal advice before concluding that a late-noticed claim is entirely lost.

Q: How long does a FIDIC arbitration typically take in Poland-related disputes?

A: ICC arbitration for a mid-size Polish construction dispute typically runs 18 to 36 months from the Notice of Arbitration to the final award. Interim measures proceedings before Polish courts can be resolved in two to four weeks. Enforcement of a foreign arbitral award in Poland takes a further 12 to 18 months if contested. Early settlement or DAB resolution remains the most time-efficient outcome for both parties.

Q: Is it a misconception that Polish courts will always reduce contractual penalties in FIDIC contracts?

A: Yes. Polish courts have the power to reduce a contractual penalty that is grossly excessive relative to the creditor's actual loss. However, this power is discretionary and applies only on application. Courts do not reduce penalties automatically. A contractor who simply accepts a penalty deduction without challenging it through the FIDIC mechanism or in court loses the benefit of this statutory protection. Timely challenge is essential.

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 FIDIC dispute resolution, construction arbitration, and real estate transactions. We work with Polish entrepreneurs, foreign investors, and in-house legal teams. To discuss your situation, contact info@kordeckipartners.com.