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Additional review of expert determination clause 2
- DEPARTURE FROM INSTRUCTIONS
An expert is expected to discharge his duties in consonance with the powers and functions laid down in the contract entered into by the parties. Where he has been informed to consider certain principles during decision-making, he is required to abide by them. Any material departure from those stipulations, essential to the determination, is likely to affect the decision. While immaterial departures can be ignored, those with potential material effects leave a provision for challenges.
For example: If an expert departs from the instruction engraved in a contract, while determining the standard of quality of a good, or does not consider the set of figures mentioned, the determination will not be binding upon the parties.
- ERROR IN INTERPRETATION
The interpretation of terms and clauses of a contract is contingent upon the construction of the contract and the intention that it aims to convey. Any conceptual error in analyzing the terms and conditions provided therein, essential to the actual determination of the dispute may lead to an error in judgment. Unless otherwise stated, it is considered that the parties to the dispute agreed to grant exclusive power to the expert to determine the meaning of the terms. The extent of exclusivity of the expert’s jurisdiction in cases of interpretation of the terms will depend upon the intention of the parties that can be deduced from the terms of the contract.
For example, The clause states: The quality of the materials are to be determined by [Mr. A.], an expert, and in case they are economically irrecoverable, they are not to be taken into consideration for calculation.
The interpretation of the term ‘the materials’ is crucial to the issue. If the contract provides that the decision is not binding in case of material error, it leaves room for judicial review.
- UNAUTHORISED DELEGATION
Where the contract does not contain a provision for delegation of authority or does not allow any form of assistance to be taken from a third party, relegating the authority of determination of the dispute to any subordinate or taking assistance to deal with the issue will render the decision invalid and not binding on the parties.
- APPOINTMENT OF AN EXPERT IN CONTRAVENTION TO THE PROVISION OF CONTRACT
The technical skill and knowledge of an expert are crucial to this mechanism of dispute resolution. Appointment of any individual who does not meet the criteria set in the contract will be frustrating the essence of the party’s intention and therefore, susceptible to judicial scrutiny
- PREREQUISITES OF EXPERT DETERMINATION HAVE NOT BEEN MET
Requirements such as written notice, intimation about the relief sought, written response, etc, may be outlined in a contract. Unless such prerequisites are met, the determination can be challenged on procedural grounds.
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.
- Additional review of expert determination clause 2
- ERROR IN INTERPRETATION
- UNAUTHORISED DELEGATION
