Expert Determination Notes

ADR: REVISION EXPERT DETERMINATION WHAT IS EXPERT DETERMINATION? * Parties appoint an expert to make a decision/formal determination on the issues referred to him, * Expert can only decide/determine within the boundaries laid down by the parties. * Decision/determination can be: * Finally binding on the parties - this must be agreed in advance, if so - no right of appeal although decision may be challengeable in court, on limited grounds. * Binding for a temporary/limited period How it Differs from Arbitration * Determiner does not have power to make an order or an award, * Determination does not take place within formal scheme laid down in the Arbitration Act 1996 * Parties retain more control over timing and procedure, * Parties retain control over evidence they disclose to the determiner and other parties * If it is an international dispute, the determination is not enforceable under the New York Convention 1958 WHEN TO USE EXPERT DETERMINATION * Mostly used in 3 situations: * Where the parties contractually bind themselves, in advance of the dispute, to use this method of ADR # term may also provide for the expert to be used, process etc * Where the case raises very technical issues and parties decide, after the dispute has arisen to use expert/neutral determination as preferred form of ADR * During the course of mediation - ie. where an issue must be resolved for the mediation to progress on that, and possibly other, issues. Pre-Dispute Agreement * Term within a contract - * must make clear the issues to be referred and, * where necessary, the expertise and qualifications necessary in the expert appointed to resolve the dispute. * Some clauses also contain: * the procedure to be followed in appointing the determiner and, * the procedure to be used by the determiner in making the determination. COURTS' APPROACH TO EXPERT DETERMINATION Contractual Effect of Determination Clauses * If clause clearly and unambiguously drafted, will be upheld by the courts and will prevent the parties having recourse to the courts to resolve the dispute (Harper) * If a party refuses to comply with the clause, other party will be entitled to sue for damages on breach of contract if has to issue proceedings for the dispute to be determined (Sunrock Aircraft ) Applications to Stay Proceedings Pending Expert Determination * Court has discretion to stay any court proceedings issued in breach of an ADR clause (Channel Tunnel Group ) * Burden on party seeking to litigate the dispute to show grounds why the claim should not be stayed for the parties to pursue the contractually-agreed ADR (Cott UK) * Court must consider: * Extent of compliance with pre-action protocol(s) * Whether dispute suitable for determination by agreed ADR method * Costs of ADR compared with litigation * Whether litigation will resolve the dispute more quickly than requiring the parties to use the agreed ADR * Whether a stay would be in accordance with the overriding objective * DGT Steel - Court rejected an argument by C, that granting a stay would have the effect of debarring C from pursuing the claim in court. Held, a temporary stay, for a stated period, simply halts proceedings for a few weeks, proceedings can then be re-activated. SELECTION OF EXPERT/NEUTRAL DETERMINER * Parties may agree on the identity of the determiner and approach him directly. * Alternatively, may enlist the help of bodies such as: * Academy of Expert, * Royal Institute of Chartered Surveyors, * Institute of Chartered Accountants in England and Wales, or * the Law Society * Some ADR providers also offer an Expert Determination Service, for example CEDR. * An ADR provider will offer a selection of experts for the parties' consideration, * The provider will administer the process. 

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