Expert determinations will follow a process and timetable. Sometimes, a specific process and timetable is set out in the contract. Otherwise, the expert determiner could suggest a process, or the parties could agree one between themselves. Expert determinations are less formal and more flexible than court processes, and the process could be amended to suit the issues in dispute. Timetables can also be flexible again depending on the issues. The contracts will usually specify a time limit by which a determination must be made but the expert determiner has discretion to seek agreement from the parties to amend the timetable.
Typical Process
A typical process will include:
- submissions by each party to the expert determiner, setting out their position and relevant evidence
- a chance for each party to respond to the other party’s submissions
- questions from the expert to the parties, requesting further information and explanations
- a chance for the parties to comment on the other party’s answers to those questions
- sometimes oral hearings for the expert to hear from the parties and ask questions directly (although this is not common)
- delivery of the expert determination to the parties.
Finality of Expert Determination
Expert determinations are final and binding on the parties, save for “manifest” error i.e. a mistake that is so obvious that there can be no dispute as to its existence. This means that an expert determination process can be undertaken quickly, and the dispute resolved to a finality, allowing the parties to move on.
