Expert Determination

Expert Determination is a dispute resolution process based on contract where the parties to a dispute agree to refer the dispute (or disputes) between them to an independent third party neutral, known as the expert. The expert determines the matter (hence the title expert determination) by issuing a final and binding decision (unless the contract provides to the contrary) called a determination.

The expert is usually chosen on the basis of his/her expertise in the area in dispute. The process is usually cheaper and quicker than arbitration (especially arbitration preceded by a conciliation) and is especially useful in technically complex areas such as construction, the IT sector, and the pharmaceutical and or chemical industries.

The expert is often provided for by name in advance in the contract, though if the contract does not mention a name, the expert is usually agreed by the Parties when/if a dispute arises and failing such agreement between the parties, the contract usually provides a default mechanism allowing one party to the dispute to ask an independent person, such as the president for the time being of the Royal Institute of Architects of Ireland (RIAI), or the Chairperson for the time being of the Chartered Institute of Arbitrators (CIArb) Irish Branch, to appoint an expert.

While the process has many similar characteristics to arbitration or litigation, there is a fundamental difference in that an expert has much more procedural scope than an arbitrator or a judge, and is not normally constrained by the rules of natural justice. An expert is normally empowered to rely on his/her own knowledge, expertise, experience and investigations without reference to the parties. Similar to arbitration, the expert normally decides how the costs are dealt with.