Driver Trett Digest | Issue 20 - Magazine - Page 22
DIGEST | ISSUE 20
with relevant support) who is appropriately qualified
and experienced in the relevant subject matter. This
can be very effective where the dispute centres around
complex technical issues for example.
Furthermore, for disputes which could still be the subject
of litigation or arbitration, engaging a prior process of
expert determination may promote a settlement of the
dispute. In my experience, this is the main reason that
parties enter into an ad-hoc and non-binding process.
This has added benefits in that it allows commercial
relationships to continue without the normal fractures
that often appear when parties are engaged in formal
dispute proceedings with each other.
How can expert determination benefit
the parties to a dispute(s)?
As already mentioned, expert determination is typically
quicker and more cost effective than litigation or
arbitration, which, in the very challenging economic
climate the world is currently in, may be a particular
attraction to parties to a dispute.
Also, when using an ad-hoc non-binding process in
particular, it may facilitate a commercial settlement of
a dispute, thus avoiding the costs associated with more
formal proceedings.
In my experience, clients often question the usefulness
of expert determination when it is non-binding. My
typical answer to them is that it provides a basis for
re-setting a party’s expectations and thereafter can
prompt settlement discussions which in turn can help
the parties to avoid lengthy and costly proceedings. The
rationale of a neutral third party with relevant expertise
in the matters underpinning the dispute can allow
the parties to sense check their own opinions on the
matters against their original position.
In conclusion, whilst expert determination may
not always be the ideal or ultimate mechanism for
resolving disputes in our industry, for the reasons
described above, it clearly has some very real
attractions, and therefore, a place in the market.
A word of warning; those seeking to include a clause
within a contract citing expert determination as a form
of dispute resolution must draft a clause that reflects
the parties precise wants and needs. A recent case
heard in the Technology and Construction Court found
that such a clause was not clear and that the expert
lacked jurisdiction; the determination/decision of the
expert was rendered null and void and therefore not
binding upon the parties.13
The Royal Institution of Chartered Surveyors (RICS)
publishes a very comprehensive and useful guidance
note on the subject of expert determination14 for
instances where surveyors may be asked to act in
this role. Such guidance may be useful for any other
professional who is acting in or considering taking that
role. The guidance note also makes for useful reading
for anyone considering submitting a dispute it is party
to or maybe involved with, to expert determination.
A further sign perhaps that expert determination is
set to increase in popularity in the Middle East and
elsewhere is that the RICS recently delivered its
first expert determination training programme. In
anticipation of this increase I was a happy participant
on the programme and have enhanced my skills
to allow me to continue to deliver effective expert
determinations across the region.
Another benefit I have seen is that where a party or
parties to a dispute are an entity with rigid accounting
and financial reporting requirements (including
shareholder or stakeholder considerations) expert
determination can provide a clear measure for such
accounting and reporting purposes relatively quickly.
Similarly, where circumstances allow and expert
determination is used whilst a project is still ongoing, a
dispute that is determined relatively quickly can allow
the parties to focus on the completion of the project
rather than becoming embroiled in a more lengthy and
acrimonious dispute resolution process.
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