Use an expert for a defined technical question
Expert determination works best when the dispute can be expressed as a narrow question within a recognised discipline, such as applying agreed accounting policies to a completion statement. It is less suitable where the outcome depends on contested contractual interpretation, witness credibility, or broad procedural protections.
The clause should distinguish issues assigned to the expert from those reserved for courts or arbitration.
Draft the procedure, not only the appointment
A workable clause identifies how the expert is selected, the material they may consider, the submissions process, the timetable, and the allocation of costs. It should also state whether the expert acts as an expert rather than an arbitrator and define the basis on which the decision is final.
- Specify the expertise required and a fallback appointing body.
- Set boundaries for evidence, meetings, and independent enquiries.
- Address errors, omissions, and questions outside the expert's mandate.
- Preserve interim remedies where assets or information need protection.
Finality requires precision
The speed of expert determination comes partly from limited review. That advantage becomes a risk when the question, governing principles, or expert's jurisdiction is unclear. Parties should resist using a short-form clause for every post-completion disagreement.
A carefully bounded mechanism can resolve technical disputes efficiently. A broad or internally inconsistent one may transfer the central legal question to a process that was never designed to decide it.
Discuss the implications
Speak with our advisory team about how these considerations apply to your organisation or transaction.
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