Expert determination: a wise choice?

By Harriet Campbell

If parties wish to use expert determination to resolve disputes between them, they will insert a specific expert determination clause into their contract or specifically agree that course of resolution when a dispute arises.

Typically, expert determination clauses provide for a technical expert (such as an accountant) to resolve disputes arising out of corporate transactions. The expert’s remit is generally defined solely by the contract and the determination is normally binding (absent fraud or obvious error).

While the process is dependent on the contract, the basic structure often follows an established pattern. After making submissions to the expert (who shares all communications with all parties), the parties normally respond to each other’s submissions and make any counter-responses. The expert then makes enquiries and asks questions of the parties if appropriate. A final and binding written decision is then issued by the expert, which can be with or without reasons…

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