An Expert Determination is a process that can lead to a final result. It is a process often used for the resolution of disputes involving discrete technical or valuation questions by an appointed independent third party with recognised expertise in the subject matter of the dispute.
Because the dispute often arises from the contractual relationship between the parties, an “Expert Determiner” with legal expertise as well as technical qualifications is usually selected. Under the Expert Determination process, the Expert conducts the procedure in accordance with designated rules and makes a determination that is final and binding.
In selecting the use of an Expert Determination process, the parties aim to resolve their dispute by avoiding the cost and publicity of litigating in Court or using Arbitration which is reviewable (subject to certain qualifications) by a Court. Litigated decisions and arbitrations (conducted under the previous arbitration legislation) are always subject to appeal. To avoid the costs, uncertainty and and time delays associated with traditional methods of resolving construction disputes, parties have increasingly turned to expert determination which is less likely to be the subject of an appeal.
There is no legislation governing Expert Determination and the parties are free to provide their own rules for the determination process. Australian courts have show that they will uphold a provision in the parties contractual agreement to resolve disputes by Expert Determination. Court have also held, that unlike adversarial hearings, there is no requirement on an Expert to allow the parties the opportunity to make submissions and will enforce an Expert’s determination, even where it is established that it is wrong.
Using Expert Determination provides certainty that the party’s (contractually) agreed process for resolving any disputes will be employed. Expert Determination also provides an alternative dispute resolution process that is:
- quick and relatively inexpensive
- determined by a party selected “expert” who is able to use a process of inquisitorial investigation
- final and binding (unless the parties provide otherwise).