Delay and extension of time under FIDIC: Lessons for Indian construction arbitration

There is a running joke in the construction industry: projects don’t get delayed; only completion dates move faster than time itself. Having sat through more than a few arbitrations, one realises that delay disputes often resemble sequels of the same film—identical plotlines, new characters, and the same inevitable ending. The real villain is rarely inefficiency. It is the absence of a disciplined mechanism for assessing, recording, and responding to delay. Indian construction disputes are not short of contracts, clauses, or consultants. What they consistently lack is discipline in time management. Delay claims are still argued as stories. Rarely as structured evidence. That, more than anything else, explains why construction arbitration in India remains expensive, prolonged, and uncertain.

Under the FIDIC suite of contracts, particularly the Red and Yellow Books, the extension of time (EoT) mechanism operates as both shield and sword. It protects contractors from exposure to liquidated damages where delay is beyond their control, while enabling employers to track time risk as the project unfolds. Clause 20.1 (2017: Clause 20.2) requires notice within 28 days of a delaying event. This is not paperwork. It is risk signalling. It is the contract’s way of forcing parties to confront delay when it happens, not years later in arbitration. Indian practice, however, treats notice as ritual. It is either ignored or manufactured retrospectively. By the time the “notice” appears, the project is already in dispute. At that stage, the EoT mechanism has already failed. The Supreme Court has repeatedly emphasised that contractual mechanisms cannot be bypassed. In M/s. Simplex Concrete Piles (India) Ltd. v. Union of India, the Court affirmed that claims contrary to contractual stipulations cannot be sustained. Likewise, in State of Kerala v. M.A. Mathai, the Court reiterated that parties are bound by the agreed contractual framework governing performance. Yet, in practice, EoT continues to be treated as a post-dispute justification exercise rather than a live project management tool.

FIDIC’s architecture assumes that the engineer will function as a neutral certifier. That assumption rarely survives Indian public contracting. In most government and infrastructure contracts, the engineer operates within the employer’s administrative ecosystem. The result is predictable. Certification becomes cautious. Delayed assessments become defensive. And neutrality becomes aspirational. The Supreme Court in Voestalpine Schienen GmbH v. DMRC Ltd. stressed the importance of independence in dispute resolution structures, particularly where one party has structural control. While the decision addressed arbitral appointments, the principle applies equally to pre-arbitral mechanisms like the engineer’s determination. When neutrality is compromised at the project stage, arbitration becomes inevitable—not because the dispute is complex, but because the process has lost credibility.

If there is one area where Indian construction arbitration consistently underperforms, it is evidence. Delay claims are routinely advanced on reconstructed narratives rather than contemporaneous records. Tribunals are asked to choose between competing stories, both built retrospectively, neither grounded in structured analysis. For any real estate law firm, this evidentiary gap presents a recurring challenge in effectively substantiating delay-related disputes.

The Society of Construction Law’s delay and disruption protocol offers a different approach—time impact analysis, window analysis, and as-planned versus as-built comparisons. These are not technical luxuries. They are minimum standards for rational adjudication. In McDermott International Inc. v. Burn Standard Co. Ltd., the Supreme Court made it clear that arbitral findings must be based on evidence and cannot rest on conjecture. Until Indian arbitration transitions from narrative to methodology, delay claims will continue to produce inconsistent outcomes.

FIDIC draws a clear line between excusable delay (time relief) and compensable delay (monetary entitlement). This reflects commercial realism. Not every delay deserves compensation. Indian contract law, particularly under Section 55 of the Indian Contract Act, 1872, has not developed an equally nuanced framework. In Hind Construction Contractors v. State of Maharashtra, the Supreme Court held that time is not ordinarily of the essence in construction contracts unless expressly stipulated. This has often been misunderstood to mean that delay carries limited consequence. In reality, the absence of structured classification between excusable and compensable delay leads to inflated claims and defensive adjudication. What is missing is not doctrine. It is disciplined application.

Concurrent delay remains one of the least developed areas in Indian arbitration. Where both employer and contractor contribute to delay, the legal system offers no consistent framework for apportionment. Tribunals are left to improvise. Outcomes vary. Predictability suffers. In ONGC Ltd. v. Saw Pipes Ltd., the Supreme Court emphasised the need to examine causation carefully in the context of damages. However, a structured doctrine on concurrent delay has yet to emerge. The result is predictable: inconsistent awards followed by Section 34 challenges framed as “patent illegality."

Modern construction projects generate precise, real-time data—Primavera schedules, BIM models, drone mapping, and digital logs. Yet, Indian arbitration continues to rely on reconstructed timelines and oral testimony. The SCL Protocol recognises that data-driven analysis significantly improves accuracy in delay assessment. The problem is not availability of data. It is an unwillingness to use it. In an era of digital project management, continuing to decide delay claims on narrative reconstruction is not merely inefficient. It is indefensible.

India does not lack contracts. It lacks consistency. Across public works and PPP projects, there is no uniform approach to extension of time. Each contract reinvents the process. Each dispute repeats the same arguments. A uniform EoT protocol should mandate strict notice compliance, contemporaneous documentation, structured delay analysis, and independent certification. This is not reform. It is standardisation. And it is long overdue.

FIDIC’s real strength lies not in its clauses, but in its discipline—early communication, structured assessment, and proportional risk allocation. Indian construction arbitration continues to operate in reverse. Delay is ignored during execution and reconstructed during dispute. Evidence is replaced with narrative. Structure is replaced with argument. If arbitration is to remain credible in infrastructure disputes, this must change. Extension of time cannot remain a defensive claim raised after the project has failed. It must become what it was designed to be—a real-time mechanism for managing delay. Until then, Indian construction arbitration will continue to produce the same outcome: different projects, same dispute, same delay.

About the author: Rishabh Gandhi is a former judge, arbitrator, and arbitration counsel specialising in commercial and construction disputes. He regularly appears in EPC and delay-related arbitrations. Gandhi is also the founder of Rishabh Gandhi and Advocates.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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