Dispute Resolution - Expert Determination
Expert Determination is a confidential and binding process which is agreed by the parties to the dispute, either in the original contract documentation, or in a subsequent agreement. An expert appointed will reach a decision which will be binding on the parties.
The advantages of expert determination
It is confidential, carried out in private, and so can protect commercial confidences and sensitive subjects. It is flexible, as the expert instructed can be carefully chosen to meet a particular need for someone who has a specific technical skill or knowledge of the industry or unique circumstances of the area of dispute. Also the expert can agree the most suitable procedure with the parties. It is fast and far less formal compared to other dispute resolution processes, and is ideal for multi party disputes.
What types of dispute are suitable for expert determination?
It is most suitable for technical disputes where there the help of an expert is required. For example the expert may be an engineer, IT consultant, or valuer of certain types of property or goods. It is often used in
- rent valuationsland valuations
- insurance disputes such as valuations and terms
- valuation of shares
- sale of goods disputes such as fitness for purpose and faults
- boundary disputes
- and other areas where it is necessary to have an assessment of value, turnover, or profit.
The parties can decide that an expert’s decision is final and binding and not subject to appeal to the courts. An expert’s determination can be enforced in court proceedings in England and Wales, but there may be problems with enforcement in other countries.
As far as costs are concerned, it is usual for the parties to agree that they will meet their own costs and share of the fees of the expert. Unless the parties have agreed in their terms of reference, the expert cannot award costs against another party.
Article added: 21 January 2010 © Cousins Business Law
This article is not intended to constitute legal advice, nor is it intended to be a complete and authoritative statement of the law, and what we say might be out of date by the time you read it. You should always seek legal advice to confirm whether or how any information in this article applies to your particular situation. We offer a free 30-minute telephone advice session to discuss your particular circumstances.
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