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Resolving disputes through expert determination

Last time, Jonathan talked about some of the lessons he’s learned while resolving disputes remotely. I thought I’d follow that with a few thoughts on the remote training that I’ve been doing this year (for obvious reasons) on the topic of expert determination.

The training had originally been planned to be delivered in Doha in April. I was rather looking forward to a trip out to the Middle East at that time of year – it’s not too hot you can’t move outside – and there was a chance I’d be able to check out the football stadiums being built for the 2022 World Cup. However, the COVID-19 pandemic put a stop to any travel plans I had. Instead of spending two days with the delegates in face to face training, we transferred the course online over six separate tutorials plus a case study/assessment at the end.

The training was delivered as part of RICS’ training programme and, although it was initially aimed at the Middle East (because the catalyst for it was the lack of adjudication and other alternatives to long running arbitration or using the local courts, as Helen Turner discussed), it’s not actually Middle East specific. The RICS is keen to develop it in all its regions and the next session starts in early November, for anyone who is interested.

What is expert determination?

It is a form of dispute resolution whereby the parties appoint an independent, neutral expert to determine the issues in their dispute. The key is the appointed “expert” having the relevant specialist or technical knowledge and, in this respect, there are many similarities to adjudication (or at least there should be).

I’ve looked at this subject before, albeit some time ago (see Expert determination and adjudication: an adjudicator’s view and Acting as an expert determiner).

What do we teach you?

To borrow from the RICS’ website, at the end of the training, the participants should:

  • Understand the context that expert determination operates within.
  • Be able to describe and apply the powers and duties, obligations and limitations that relate to the role of the expert determiner.
  • Be able to conduct an expert determination and manage the process, from the initial request to act and the appointment processes, through to the production and publication of the determination.
  • Understand the essential requirements for a valid determination and the problems that may arise where these requirements are not met.
  • Learn how to draft a valid determination.

Again, it’s not so different from acting as an adjudicator or other dispute resolver. I think the skillset required is common to other dispute resolver type roles and producing a determination is similar to writing an adjudication decision or arbitral award. I also think the case management skills required are similar, although, as it is a creature of contract, it is more of a “start with a blank page” process as we don’t have statutory support (no Construction Act or Arbitration Act involvement here).

My sessions focus on the determination itself, looking at issues such as who the determination is for and why it is being written, the structure of the determination (including simple things like getting the formatting and paragraph numbering right) and the meaty bit, deciding the substantive issue(s) and setting those out with reasons, so the parties understand what you have decided and why.

My experience of expert determination

In the UK, my expert determination appointments tend to relate to what I might describe as “non pure” construction contracts, such as those derived from PFI/PPP/Partnership contracts with construction related matters involved (and I’ve discussed this before too, see CEDR’s dispute resolution procedure for PFI and long-term contracts) and also from more traditional “property documents”, such as leases, development agreements and funding agreements. Because of its statutory “at any time” nature, adjudication tends to mop up most construction disputes.

Expert determination may not be appropriate in every case but it can work well in the right circumstances. It is always worth considering.

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