What is Expert Determination?
The subject matter of arbitration disputes sometimes may require the opinion of an individual who is considered as a specialist or an expert in the subject matter relevant to the case at hand. The parties to an arbitration case call upon an expert or a specialist to give their opinion on the subject matter relevant to the dispute at hand. The situation is known as expert determination.
Purpose of Expert Determination
The purpose of expert determination which is generally a private process, is to give the parties access to another individual, who has to impart their knowledge on the subject matter in an impartial manner, which has a significant impact on the binding decision which eventually makes up for the arbitral award. Since the parties are well aware and assured that the expert brought in by their mutual consent is impartial and highly knowledgeable in their particular field, it removes any space for doubt. It helps in easing the process of dispute resolution. Some additional features of expert determination are as follows:
- A clause in the agreement entered into by the parties of a dispute must entail provisions for export determination, without which this procedure cannot be invoked.
- The individual who is called in as the expert hence creating a space for expert determination in arbitration cases eliminates the role of a legal representative and reduces the chances of appealing any decision passed by said expert.
- In a way, because parties agree to such intervention, they supersede the rights to resort to the legal process which would be carried out in a regular arbitration procedure.
The Correct Way of Executing Expert Determination
To ensure that there is no relinquishing of a legal right, the agreement between the parties must entail practical clauses which are not drafted negatively or ambiguously. The contract's language makes the utmost difference in such situations, mainly because the inclusion or exclusion of correct wording determines whether the award passed in such a case can be appealed or has the scope of being appealed in a court of law.
For instance, a clause stating that the parties agree to invoke expert determination in the wake of a dispute but not limiting the dispute resolution to just that mechanism makes the agreement fool-proof and non-ambiguous.
Attention is paid to such details paired with effective wording and holistic drafting can make or break an agreement that includes the clause for expert determination.
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. Further, despite all efforts made to ensure the accuracy and correctness of the information published, White Code VIA Mediation and Arbitration Centre shall not be responsible for any errors caused due to human error or otherwise.