Negotiating terms for an expert determination clause
Therefore, while negotiating the terms of an expert determination clause, it is imperative for the parties to consider the inclusion the following points:
- a) The type of dispute which may be amenable to expert determination
- b) The procedure to assist the parties to identify the type of dispute between them
- c) The nature and scope of an expert’s technical skill and knowledge.
- d) Different experts for resolving different types of disputes, depending upon their
command over the subject matter.
- e) An exclusionary provision, to exclude matters such as interpretation of the contract,
that requires objective determination.
- f) The procedure of appointment of the expert is to be laid down.
- g) The role and powers of the expert to be carved out.
- h) The steps to be followed before the commencement of expert determination to be
- i) The procedure to be followed should be predetermined and specifically declared.
The demand for Expert determination of dispute is escalating and various sectors are showing proclivity towards such dispute resolution mechanism. Some of them are:
OIL AND GAS INDUSTRY
The Oil and Gas Industry encompasses an international market; its stakeholders being spread across the world. The complexities in the issues and the necessity for a speedy disposal of issues make expert determination of disputes a popular choice. A significant rise in such complex commercial issues has seen the submission of evidences by parties only after consulting technical experts. Also, an estimation of damages may require appraisal of future revenues and loss of profit. Therefore, engaging in expert determination will not only provide the required technical assistance in the appraisal of the matters but also help in circumventing the cumbersome legal obstacles such as that of jurisdiction, enforcement of award.
Disputes in the Telecommunication sector may entail matters concerning infrastructure projects, operations and networking, or interconnect agreements, both national or international. This in-house mechanism of dispute resolution is preferred as familiarity with the issues of technology is indispensable for a satisfactory disposal of disputes.
Long term construction works often come to standstill due to long-drawn conflicts and disputes. Alternative mode of dispute resolution, specifically expert determination is taking over the traditional method of litigation due to its ability to expedite the resolution process and also the expertise involved.
EXPERT DETERMINATION IN MERGERS AND ACQUISITION DISPUTES
M&A disputes require skill to deal with financial matters, adjustment claims, warranty claims etc. Expert determination helps in providing final determination of disputes relating the valuation of assets involved, in the quickest and most inexpensive manner and has therefore become a standard mode of resolution of dispute in most M&A cases.
EXPERT DETERMINATION IN REAL ESTATE
Expert determination is considered to be an appropriate dispute resolution method in commercial real estate issues as it requires a neutral third party, proficient in the field, to determine contentious issues concerning pricing of a property or ascertaining the boundary line.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.