An expert determination is a form of alternative dispute resolution. It is often used where disputes relate to specific technical points which can be resolved quickly and efficiently by using an expert determiner, rather than going through a court or arbitration process.
Use in Contracts
Contracts will usually set out how disputes are to be resolved. Parties can agree that certain types of disputes are to be resolved through expert determination. In M&A disputes, determination clauses are often included for resolving disputes over completion accounts or earn-out calculations. But expert determinations can also be used in a wide variety of accounting and valuation matters.
Role of the Expert Determiner
The expert determiner is jointly appointed by the parties. They act as a neutral decision-maker in the dispute. Usually the Expert acts as “Expert not Arbitrator.” This is a crucial difference.
Key Difference from Arbitration or Litigation
An expert is not bound by the submissions made to them. Rather, they can carry out their own investigations, form their own opinions and come to their own conclusions regardless of any submissions or evidence adduced by the parties themselves. Expert determiners can resolve disputes using their expertise; judges and arbitrators resolve disputes based on the submissions and evidence presented to them.
