Legal Terms Explained: Expert Determination

Expert determination is an alternative dispute resolution process in which an independent expert, rather than a judge or arbitral tribunal, is appointed to resolve a dispute. Because the dispute is heard by an expert with deep subject-matter expertise, this process can be particularly effective for deciding issues that require specialised technical knowledge or industry-specific expertise, rather than purely legal or contractual interpretation. When used appropriately, parties can achieve a resolution that is both faster and more cost-efficient compared to traditional dispute resolution methods.

General features of expert determination

Expert determination is typically a private and confidential process that is entirely consensual. An expert determination clause may be incorporated into the contract from the outset, or parties can agree to adopt the process once a dispute arises. An expert determination clause will usually specify matters such as the type of dispute(s) to be referred, the expert's requisite qualifications and expertise and the appointment procedure. Parties may agree to appoint an expert through an institution such as the Centre for Effective Dispute Resolution, which maintains panels of qualified specialists.

In a construction context, expert determination can be particularly suited to dealing with matters like variations or technical disputes concerning performance tests and defects. The process is not generally considered appropriate for fact-heavy disputes that require extensive document disclosure or detailed factual evidence.

One of the key advantages of expert determination is its flexibility. The process can be tailored to the nature of the dispute and the parties' preferences. For example, parties are free to agree matters such as the following:

• Procedural matters such as the language of proceedings or location of meetings.
• Whether submissions will be written or oral.
• The overall timeframe for the expert determination process and decision.

These details can be set out in the expert determination clause, agreed once the process begins, or left to the expert's discretion. In addition, institutions such as the ICC and IChemE publish rules for expert determination which can be incorporated by reference into contracts. Such procedural flexibility is particularly valuable in construction disputes where site visits or inspections may be necessary.

Some standard form construction contracts, such as the IChemE forms, provide for final and binding expert determination, with failure to comply constituting a breach of contract. Alternatively, an expert's findings may take the form of a non-binding recommendation, which parties can then use as a basis for negotiation to reach a settlement.

Enforcement and appeals

Expert determination is a contractual construct, meaning enforcement generally arises through a contractual claim rather than statutory mechanisms. Unlike arbitration and mediation, expert determination is also not supported by international conventions such as the New York Convention or Singapore Convention facilitating cross-border enforcement. Further, where parties have agreed to final and binding expert determination, scope for appeal is generally limited and the English courts will rarely intervene except in cases of fraud, manifest error, or where the expert has acted outside their contractual mandate.

* This article was originally published as part of the "Legal Terms Explained" series of Construction Law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.