Expert Determination

Expert determination is useful for the efficient resolution of disputes requiring an independent evaluation.

Expert Determination – what is it?

Expert determination is a process for the determination of disputes by an independent third party. It is often the quickest and most effective way of resolving disputes which are essentially technical in nature.

Expert Determination Agreement

The process of the expert determination and the decision to resolve the dispute using expert determination is governed by the expert determination agreement. The expert determination agreement is included in a contract governing a commercial relationship.

The terms of the expert determination agreement will outline whether the expert determination will be binding and the nature of the appointment of an expert.

In the absence of an expert determination agreement in the contract, the parties may agree to use expert determination after the dispute has arisen.

How does Expert Determination differ from Arbitration?

Expert determination is not arbitration. Whereas arbitration is governed by specific legislation that sets the legal framework as to how the arbitration is conducted and the award is enforced, expert determination is solely defined by the contract between the parties. There are limited occasions when a court will intervene in an expert determination process, such as if the expert appointed or the process is totally unsuited to the dispute to be resolved, or the expert has acted beyond the scope of appointment under the terms of the contract.

To enforce an expert determination, where the contract provides that it is to be binding, a court process must be commenced to enforce the determination just as one would enforce any contractual entitlement.

How does expert determination work?

The disputing parties refer the matter to an expert. The expert is required to be independent of, and act fairly and impartially between the parties, giving each party a reasonable opportunity of putting its case in the manner agreed in the Expert Determination Agreement.

The process of the expert determination is governed by the expert determination agreement. The expert is obliged to give natural justice, but the standard that has to be given may be limited by the process agreed. Often expert determinations are performed on the papers where no oral hearing is conducted, however, the parties may agree to a limited hearing.

Who can act as the Expert?

Expert determination has historically been used primarily in disputes requiring determination by an independent third party with expertise in the field in which the dispute has arisen.  Barristers with expertise are appointed as the expert where the issues in dispute are primarily of a legal nature. Barristers have expertise in assessing rival claims, and if the barrister also has experience and expertise in the particular discipline in which the dispute has arisen, he or she may be an excellent selection for appointment.

Locating an Expert

The Victorian Bar offers a service to the legal profession and the public for the independent appointment of expert determiners at the Bar.

The Expert Determination Appointment Service provides for the President of the Victorian Bar to appoint an expert determiner on behalf of the parties where they are unable to agree. The parties may make an application to the President of the Victorian Bar who will make an appointment of a member of the Bar who possesses expertise in the relevant field.