What is an Expert Determination?

11 November 2021 by Paul Croft

Expert determination is an alternative dispute resolution process where an independent expert determines the resolution of a dispute between parties under rules and procedures agreed with the parties and/or determined by the expert. As the disputants and the expert can shape the process and the issues to be determined, expert determinations are typically a flexible, fast and cost-effective alternative to Court proceedings or arbitration. The expert does not act in the capacity of arbitrator and there is no legislation that governs the process.

Where appointed pursuant to a dispute clause in a contract entered into between the disputants, the expert determiner is required to follow the procedures and rules required by that contract. If there are no agreed rules, the expert must agree procedures and rules with the parties. The expert is selected on their qualifications and experience in the matters in dispute and experience as a dispute resolution practitioner.

Typically, determinations are final and binding (subject to review by the Courts on a limited range of issues such as jurisdiction, breach of contract and natural justice). In some circumstances, they are final and binding, although at times subject to a cap on the disputed amount.

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Paul Croft Director, Forensic Accounting E: pcroft@brifnsw.com.au M: +61 (0)418 411 299 T: +61 (0)2 8263 2320	Jacqueline Woods Director, Forensic Accounting E: jwoods@brifnsw.com.au M: +61 (0)417 472 668 T: +61 (0)2 8263 2357