Expert determination is a historically accepted form of dispute resolution invoked when there is not a ''formulated dispute'' in which the parties have defined positions that need to be subjected to

arbitration Arbitration is a form of alternative dispute resolution (ADR) that resolves disputes outside the judiciary courts. The dispute will be decided by one or more persons (the 'arbitrators', 'arbiters' or 'arbitral tribunal'), which renders the ' ...

, but rather both parties are in agreement that there is a need for an evaluation.

Process

Expert determination is described as a procedure by which the parties to a dispute (e.g. technical, scientific, or business dispute) appoint an independent and neutral expert to determine the dispute in private. Like arbitration, it allows trade secrets and other sensitive information to be kept out of the public domain. The expert will be a person with specialist or technical knowledge relevant to the dispute. His experience and professional knowledge are expected to help solve the dispute since legal arbitrators or the arbitral tribunal are often unable to resolve technical issues even with the help of

expert witness An expert witness, particularly in common law countries such as the United Kingdom, Australia, and the United States, is a person whose opinion by virtue of education, training, certification, skills or experience, is accepted by the judge a ...

es. Unlike arbitration, not all of the evidence an expert considers must be presented at a hearing in the presence of the parties. The practice itself is well established where complex legal institutions either have not developed, or are unavailable, such as tribal societies and criminal organisations. In the context of modern jurisprudence, the word "expert" appears first in ''Bottomley v Ambler'' 1878 38 LT 545, this was however used ambiguously also referring to arbitrators having the qualification of expert. The first mention that distinguishes specifically against the practise of arbitration, and introduces the formula "''as an expert and not as an arbitrator''" was in ''Dean v. Prince'' 1953 Ch. 590 at 591 (misquoted) and subsequently on appeal in the year 1954 1 Ch. 409 at 415. In

Contract Law A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...

, the

parties A party is a gathering of people who have been invited by a host for the purposes of socializing, conversation, recreation, or as part of a festival or other commemoration or celebration of a special occasion. A party will often feature fo ...

are free to include a

forum selection clause A forum selection clause (sometimes called a dispute resolution clause, choice of court clause, jurisdiction clause or an arbitration clause, depending upon its form) in a contract with a conflict of laws element allows the parties to agree that ...

appointing a special referee to resolve specialised but disputed factual issues between them. The so-called dispute boards, which are commonly used in resolving construction contract disputes, are considered a specialized form of expert determination.

References

*''Expert Determination''; 4th edition by John Kendall, Clive Freedman and James Farrell, published by Sweet & Maxwell, 2008 Dispute resolution {{law-stub

Process

See also

References