As an industry, we generate a disproportionate amount of disputes and we are not short of options for dispute resolution mechanisms outside of litigation.

The Middle East has, of course, long embraced arbitration. The take-up of broader alternative dispute resolution (ADR) in the region has been patchy at best. Mediation is rightly being promoted by governments to assist disputes resolution in several commercial sectors and we noted last month the welcome announcement in Dubai of a form of statutory adjudication for construction disputes, albeit applicable only to a limited market segment right now.

Other ADR options tend to be overlooked by contracting parties although I have noticed an increased use of standing disputes boards, that is, a board appointed for the duration of a project, to act as adjudicators on any matters of difference as and when they arise.

Does Expert Determination have a similar contribution to make? In a crowded field of ADR options, it is the most seldom used, so we should try to identify the unique selling point of Expert Determination and the possible downsides.

Before we do so, I should admit that there is a false equivalence in the headline question. Expert Determination isn’t “an ADR option” in the same way as arbitration or adjudication is. Those are quasi-judicial procedures involving submissions and arguments to a tribunal, whereas Expert Determination is a means of obtaining a decision on a technical question from a person with relevant expertise. The objective is for the expert to do this by the most appropriate means, including making his/her own enquiries. So, this is inquisitorial rather than adversarial. At least that’s the theory. From experience, Expert Determination involves plenty of submission, argument and adversarial behaviour from the parties!  

So, let’s define our subject matter, which these days means the Google “AI overview”. This tells us that Expert Determination is “a binding dispute resolution process where an independent expert, with specialised knowledge, makes a final decision on a technical or specialised dispute”.

That looks about right as a reflection of conventional understanding. Whilst the process is whatever the parties agree in their contract, Expert Determination is conventionally understood to be both binding and final. Grounds for appeal are (again, conventionally) limited to fraud, bias on the part of the expert or lack of jurisdiction.

Several institutions (disputes resolution and industry bodies) offer sets of rules for Expert Determination. For instance, the London Court of International Arbitration (LCIA) has published rules which cover:

•   Referral of the dispute to the LCIA’s administration.

•   Appointment of the expert: selection, terms and fees.

•   The function of the expert – as above: to act as expert and not as an arbitrator.

•   Procedure: submissions, hearing, the determination, timetable.

•   Costs and confidentiality.

These rules are light-touch and relatively informal. The LCIA version covers just two pages. The idea is to promote speed and cost efficiency by leaving scope for the expert to decide how best to determine the issue. Usually, costs are not awarded between the parties. This inquisitorial approach also (again in theory) does less damage to party relationships.

Parties should also consider the fact that there is no established convention surrounding Expert Determination. It is not recognised in public laws and it is not subject of international conventions, in the same way as arbitration is – including (for example) the New York Convention, by which arbitration awards are recognised for enforcement purposes.    

Expert Determination is a good tool for a particular job. Its particular USP operates in a relatively rare situation, namely in disputes that are wholly technical. In that situation, yes, this is arguably the most efficient way to get to a decision, so long as the parties can successfully navigate the process of identifying such disputes without creating a satellite dispute about whether, in fact, the substantive dispute is wholly technical or is a mix of disputed technical, legal and/or factual issues.

It is easy to imagine that we can all recognise a wholly technical dispute when we see it – such as the choice of a critical path delay analysis. But do such disputes often come up?

More commonly, parties that disagree over the appropriateness of a collapsed as-built delay analysis, also tend to dispute several other things including the factual causes of the delay. In that situation, parties might want an adjudicator or a disputes board to decide the technical and other aspects based (where needed) on evidence from expert witnesses.

Expert Determination is a useful procedure and it is a good addition to the range of tools available to resolve disputes. It can work in a range of situations but its USP shows in relatively limited circumstances. An expert can answer a discrete technical question quickly, efficiently and probably correctly. And so can an arbitrator, a judge or an adjudicator who has heard from an expert witness.

* Dubai-based Stuart Jordan is the Global Head of Construction for Baker Botts, a leading international law firm. He has extensive experience in the Middle East, Russia and the UK.