Expert Determination

Author:Anthony Connerty
Profession:Barrister and member of WIPO arbitration panel

1) Introduction. -2) Expert Determination and Arbitration. -3) Reported Cases Dealing With Expert Determination. -4) Some Institutions Offering Expert Determination: i) The International Chamber of Commerce. ii) The London Court of International Arbitration. iii) The Chartered Institute of Arbitrators. -5) Conclusions.


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1) Introduction

Expert determination is the fourth method of dispute resolution considered in the field of international commercial dispute resolution. It is very different from the three other forms of dispute resolution considered so far in this part of the Manual: litigation, arbitration and ADR in its various forms.

Using experts to determine technical or valuation matters has been the practice in England for hundreds of years. The parties agree to instruct a third party to determine a specific matter. Expert determination operates in a fairly narrow field. For example, it is used in the petroleum industry for equity redetermination and for the resolution of specific matters identified in the relevant contract.

This chapter compares expert determination and arbitration; discusses two reported cases dealing with expert determination; and considers some of the institutions offering expert determination facilities

2) Expert Determination and Arbitration

Although it may be difficult at times to distinguish between expert determination and arbitration, the differences between the two are significant.

Arbitration in England is governed by the provisions of the 1996 Arbitration Act.104 Due process is very much part and parcel of the arbitral process. Leaving aside documents-only arbitrations, the parties will in all probability present their case to the arbitral tribunal and the decision of that tribunal is based on the evidence and submissions put forward by the parties and their professional advisers. The arbitral tribunal must, in arriving at its decision, apply the relevant law.

On the other hand, there are no statutory provisions governing expert determination. 'Due process' may be conspicuously absent, as the parties may not necessarily present their case or submit evidence. The expert is appointed to obtain the benefits of his/her expert opinion, which will be used to arrive at the determination. Very often the matters to be decided will involve the expert in a valuation exercise.

The assistance of the courts is available to aid the arbitral process. For example, under the English Arbitration Act the court can appoint arbitrators. There is no such provision in relation to experts. Similarly, the courts can assist the arbitral tribunal by enforcing peremptory awards of that tribunal, by securing the attendance of witnesses and by making orders in relation to the taking of evidence, the preservation of evidence and thePage 294 making of orders relating to any property that is the subject matter of the proceedings: for example, in relation to the preservation and custody of such property. The court also has powers to grant interim injunctions and appoint receivers in support of the arbitral proceedings. An arbitral award can be challenged on the grounds of 'serious irregularity', and there is a limited right of appeal in relation to points of law.

Such safeguards do not apply in the case of expert determination. Any challenge to the determination of an expert can only be made on fairly limited grounds relating, for example, to fraud or collusion, or to an allegation that the expert had departed from his or her instructions to a material extent.

But perhaps one of the most significant differences between expert determination and arbitration lies in the area of enforcement. On the domestic level, an arbitral award is normally...

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