Expert Determination
Nature of Expert Determination
Expert Determination is similar to arbitration - one or more technical experts, with expertise in the area of the dispute, is/are privately appointed by the parties to assess the issues in dispute and then make a legally binding Determination to resolve their dispute.
The expert's authority is drawn purely from the agreement appointing them - allowing the parties to be very specific about what they want the expert to do, or not do!
Expert Determinations are highly focussed activities that are mainly used where there is a single, or limited range of issues in dispute (eg: to determine a rent, set a value for goodwill or calculate compensation). However, they are increasingly being used as a short, sharp and less formal process than arbitration to determine specific issues, eg: to determine the real amount that should be in a company's debtor accounts.
Expert Determinations are sometimes based purely on documentary submissions by the parties ot their advisers (eg: review financial information and decide what the profit should have been). This makes the process very short, sharp and cost effective compared to litigation.
The Expert Determination Process
Our approach (subject to agreement between the parties) is:
- Identify and confirm legal/contractual basis for determination.
- Establish appropriate process, information requirements and timetable.
- Obtain submissions and gather relevant information.
- Conduct additional enquiries / research as required.
- Consider all evidence and produce Provisional Determination (optional).
- Circulate Provisional Determination for comment (optional).
- Invite, receive and consider responses from parties to Provisional Determination (optional). To keep the process tightly controlled, strict form, content and time constraints usually apply.
- Consider parties' responses and amend Provisional Determination if required (optional).
- Finalise and issue the determination (including brief reasons for the decision).
Note that if the parties do not require the opportunity to consider and comment on a provisional determination at stage (5), a final determination is produced at that stage.
Benefits of Expert Determination
Because the person making the determination is an expert in the field of the dispute they can usually get to the heart of the matter very efficiently.
This efficiency translates into a tight process that minimises time spent, cost, stress and general disruption. These features make Expert Determinations especially useful for valuation disputes, involving limited scope commercial differences and disagreements, and for matrimonial property valuations - where the substance of the dispute should rightfully receive more emphasis than the peripheral legal issues.
