• Expert determinations can occur in many different situations.
  • Some contracts require parties to refer a dispute to expert determination before litigation is commenced.
  • Many expert determinations are agreed upon by parties without being required to do so by underlying contracts.  In some circumstances, a court may refer a dispute to expert determination or appraisal.

Prior to appointment, the parties will be required to agree a number of matters, each of which must be reflected in the expert determination agreement which the parties and the expert will be required to execute including:

  • the issues or questions that the expert is required to consider;
  • whether the determination is to be binding on the parties;
  • the timing of submissions and whether they are to be in writing, oral or a combination;
  • whether the determination is to be confidential;
  • security for the payment of the expert’s fees; and
  • the timing of implementation of the determination.