Expert determination FAQ

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Expert determination FAQ

What is expert determination?

Expert determination is a form of alternative dispute resolution (ADR) where parties to a dispute agree to submit their disagreement to an independent third party, known as the expert determiner who is an expert in the subject matter of the dispute and who expresses an opinion and makes a decision that can be either binding or non-binding on the parties.

Expert determination is commonly used for commercial disputes where the issue is of a technical nature and requires specific expertise to resolve. This can include disputes related to construction, engineering, information technology, accounting, and other specialised fields. However, expert determination can be used to resolve any dispute where the parties agree that the decision of an expert would be beneficial.

The process of expert determination is usually less formal and more flexible compared to litigation or arbitration. It allows parties to tailor the process to their specific needs and to the dispute at hand. It often involves less time and is less expensive than traditional litigation or arbitration. Furthermore, expert determination enables a decision to be made by a person who has specific knowledge or expertise in the field relevant to the dispute. This can often lead to a more reliable and fair determination, as the expert understands the technical detail and the nuances and subtleties of the subject matter, and the technical terms, language and jargon used by the parties.

An expert can be anyone who has specialised knowledge or expertise in the field relevant to the dispute. The expert is typically chosen based on their expertise and experience in the relevant subject matter. They may be an industry professional (ie, an engineer, an architect or a quantity surveyor) an academic, or a specialist in a particular field related to the dispute.

The role of an expert in expert determination is multifaceted and crucial to the process. The primary role of the expert is to possess specialised knowledge and expertise in the subject matter relevant to the dispute. They are expected to thoroughly understand the technical, scientific, or industry-specific aspects of the issues under consideration. They review the evidence, conduct investigations, and make a determination based on their expertise. Depending on the agreement between the parties, they may also provide guidance on procedural matters including setting timelines, requesting additional information, or clarifying the nature and scope of the dispute. The expert’s decision can help resolve disputes efficiently and accurately, especially in cases involving complex technical issues. The expert’s role is not to advocate for any party but to provide an independent, impartial and informed decision on the dispute.

It depends. It is open to the parties to agree (at the outset of the process) whether any expert determination will be binding or non-binding.

While both processes involve a third party making a decision, expert determination is usually less formal than arbitration and is best suited to disputes of a technical nature.

Unlike arbitration, where parties present arguments and evidence similar to a court proceeding, and the arbitrator makes an award based on the preferred evidence, expert determination relies heavily on the knowledge and expertise of the appointed expert, who can use their own knowledge and expertise to make a decision on the disputed matters.