Why I support expert determination

I’ve just finished two appointments, one as an expert determiner and the other as an arbitrator. It was my eleventh appointment as arbitrator but first as expert determiner. The disputes were similar, referred to me at about the same time and were related to defective workmanship, delay and disruption and loss and/or expense items, including loss of profit, head office overhead recovery and interest.

In the arbitration the parties were unrepresented, while in the expert determination the parties were represented by professionals. In both cases the parties had chosen the dispute resolution method by mutual consent.

In the arbitration, the submissions reflected the fact that the parties were not represented. There were gaps in the legal argument, but every bit of supporting documentation the claiming party could get his hands on had been submitted. However, there was no order to that submission.

The responding party submitted modest supporting documentation that did not really support any of his allegations, including his defence. There were many allegations made by the claiming party which were not adequately supported by argument – but through all the supporting documents some evidence to back up his case could be found. Now, does the arbitrator use the evidence submitted and make the claimant’s case for him? That would be a problem for an arbitrator as one of the parties could cry foul. An arbitrator cannot make or improve the case for one of the parties.

In addition, the responding party did not deny many of the allegations. As the arbitrator, I then needed to test those allegations as I could not just accept them at face value. But how should this be done? An arbitrator generally does not investigate – the role is to weigh the evidence provided by the parties and certainly not to create evidence or argument to assist the parties.

Does the arbitrator accept what has been provided by the parties and make his award, or should he investigate? The arbitrator can investigate if the power is given to him by the parties but even with this power the arbitrator must be careful. The arbitrator must tell the parties what he is going to do, do it, then put what he has done to the parties for their comment. However, in respect of the legal and contractual issues the parties had a problem – they were unrepresented.

Chapter and verse

In expert determination there is no specific legislation to comply with – it is a creature of contract

In the expert determination the parties were represented by professionals. Representatives for both parties did a good job at pulling together all the evidence and identifying the issues in dispute. Both parties gave chapter and verse on the contractual and legal positions. However, there was insufficient documentation in respect of certain issues – especially in regard to the claim for head office overhead recovery. This time there were gaps in the supporting documents rather than in the argument itself. I therefore prepared my query list, identifying what information I needed, and sent it to the parties. I was applying my own knowledge and carrying out my own investigation to determine the correct answer. It was evident which party would benefit from my enquiries but that did not concern me. In expert determination there is no specific legislation to comply with – it is a creature of contract. In arbitration one of the parties could be crying foul by now, so I would not have gone down that route unless the parties agree for me to do so.

The query lists were completed by the parties and returned; the other side had an opportunity to comment. They did, but no new information emerged.

One point to note is that the expert determiner is not immune from negligence, unless expressly excluded within his terms of appointment, as he is effectively making an enquiry and giving his expert view.

While writing the expert determination I found that the method did work and worked well. When I was writing the arbitration award I kept thinking that the most appropriate forum for this dispute would have been expert determination.

Expert determination of construction disputes is rare, but it would have been an effective option for both of these disputes.

I am not suggesting expert determination is better than arbitration in all cases, but I wonder why it is not used more often. In my view, expert determination at the very least warrants serious consideration – it is an effective and attractive option, especially with relatively straightforward disputes.