World Law Alliance

Expert Determination

Choose expert determination when your dispute is technical or specialized and you want an independent expert to make a decision for you.

WLA assist clients by proposing suitable experts to act as the expert determiner from our panel. We will also handle all aspects of the expert determination arrangements. These include:

  • Arranging document exchange
  • Administrating funds
  • Resolving procedural difficulties
  • Providing support and guidance to the parties and the expert determiner as required

For more information about this service call one of our client advisors on +91 8505999819

  • Commodity supply contracts
  • Construction and engineering disputes
  • Information communication and technology projects
  • Insurance disputes
  • Pension rights transfers
  • Price adjustments on takeovers
  • Rent reviews
  • Valuation of shares in private companies
  • Valuations of partners’ interests in oil and gas field projects
  • Accountants
  • Architects
  • Bankers
  • Barristers
  • Engineers
  • Insurers
  • Loss adjusters
  • Queen’s Counsels
  • Retired judges
  • Solicitors
  • Surveyors
When a fast solution is needed, expert determination is often the quickest and most inexpensive way of resolving disputes – particularly where the facts are agreed. It is carried out in private, and therefore can be guaranteed to protect confidentiality and commercial sensitivity. Expert determination is appropriate for technical or valuation issues. For example, an IT specialist may be appointed in an IT supply and installation contract to determine compliance with specifications or an accountant may be appointed as an expert in a business valuation dispute.
A person agreed by the parties to be an expert qualifies as one. It could also be a person appointed for the purpose by the head of the appropriate professional body. The identity of the independent expert may be agreed before any dispute arises – for example, a company’s articles of association may specify that on a transfer of shares a ‘fair value’ is to be determined by the company’s auditors.
Choose expert determination when you want an independent third party, an expert, to decide a technical or specialized issue between the parties. Expert determination is an informal, fast and effective process that can be used to resolve a wide range of disputes including accounting, share valuations, industrial and construction. Choose expert determination when you want a process tailored to suit the parties. Parties agree on such elements as whether the determination will be legally binding, extent of confidentiality, scope of matters, process and timing for making submissions and submitting documents and other evidence, the role of experts retained by parties, schedule for and attendance at meetings and so on. Expert determinations can be voluntary, court ordered or agreed upon in a contract.
An expert determiner decides a technical matter, drawing on his or her expertise in the field and basing it on the evidence presented by the parties. An expert determiner receives submissions, documents and other evidence from each side to reach a decision. At the start of the expert determination process, the expert determiner confirms with parties whether or not the decision will be legally binding, the extent of confidentiality, the steps that the parties will take, the time frame for submissions, documents and other evidentiary information, whether and when meetings will be held and who will attend. In this way, an expert determiner is able to customize the process to suit the parties and to ensure the necessary evidence is available to make a sound decision

Expert determination clauses govern the jurisdiction of the expert and the conduct of the determination. They should typically cover:

the issue(s) to be determined (this must be carefully drafted)
the expert’s qualifications, appointment and his duty to act independently, and as an expert not an arbitrator

how the reference will be conducted
how the decision will be issued (in writing, with or without reasons) and that it will be final and binding save in the case of fraud or manifest error
provisions as to the due date for payment and the power to award interest (and sometimes costs)
payment of the expert’s fees (these are usually shared between the parties with joint and several liability should one party fail to pay)
Enforcement of Expert Determination

In England and Wales, an expert’s determination can be enforced in court proceedings. However, as an expert’s determination may not be readily enforceable by courts in other jurisdictions, disputes that arise out of some international contracts may be better resolved by another method.

The procedure is normally dictated by the terms of the original agreement made between the parties, incorporating the expert’s terms of reference. These terms of reference set out the expert’s powers and duties in detail. Some experts may suggest additional terms, in particular a waiver of any liability from the parties.

The following points should be covered:

  • matters in dispute should be identified at the outset;
  • certainty should be provided in relation to the time at which the issues for decision have to be finalized. This will prevent parties from introducing new issues once the determination is in progress;
  • although neither party will have the burden of proving its case before the expert, the terms of reference should make it clear that the expert is required to make his decision on the basis of all the material before him;
  • scope of the expert’s function – does this extend to deciding issues involving how the contract itself is constructed? Can the expert appoint a legal adviser to assist with the process?

The terms of reference should also cover the procedure to be followed, for example:

  • the nature of any submissions to be made including guidance on the length, timing and content and the extent of the right of reply;
  • whether or not there should be an oral hearing and, if so, whether or not oral testimony will be permitted at such a hearing;
  • the means by which the expert will deliver the decision and whether or not it will be accompanied by reasons. Note that a reasoned decision may increase the risk of the determination being challenged in court on the grounds of ‘manifest error’, simply because it is then easier to show that an error is manifest or a mistake is obvious.

WLA fee for providing this service is USD2,000, shared equally between the parties.
The expert will be paid fees and expenses and their rates will vary subject to which expert is chosen. Typically, rates will be in a range between USD250 and USD800 per hour.

There is no power for the expert to award costs in favor of the successful party, unless that power is specified in the expert determination clause or the terms of reference or if the expert is specifically authorized to award and assess costs.

WLA Expert Determiners
Advocacy & Public Affairs

Hans Klaver

Hans is a pragmatic stoic Hans Klaver is a corporate lawyer who is based in

Read More »
7:28 am October 24, 2020

SERVICES

SOLUTIONS

clients

global sites

Members Area

Experts in over 100+ countries.

To protect your interest Locally and Globally.

We are a hybrid, distributed law practice.

Bringing the power of leading law firms, credible professionals and domain experts in 100+ countries - working seamlessly across geographies, industries and practices to tackle your complex global challenges.

World Law Alliance (WLA) refers to one or more of WLA & WONE member firms, each of which is a legally separate and independent entity.

All information contained on the World Law Alliance WLA website is for information and reference purposes only and should not be treated as providing legal advice.