Expert Determination is a common form of dispute resolution for post-deal purchase price adjustments and other disputes involving technical issues that may be resolved by an expert in the field providing his professional opinion. It offers benefits over litigation and arbitration: it is quicker, and generally incurs lower professional fees and provides certainty. It is generally difficult to challenge a determination once it is issued, even by the courts.
Expert determination clauses are included in most well drafted commercial contracts, particularly those involving the purchase or sale of businesses. The parties agree to submit their dispute or unresolved contractual issue to an expert to make a determination on the matter. The determination will be binding unless the parties agreed otherwise.
It is particularly effective where there is an on-going relationships between the parties, where an arbitration or litigation could seriously damage the continuing relationship between the parties. The process of expert determination distances the decision from the parties and allows them to continue with their business relationship or collaboration without disturbing the relationship.
The parties may agree some relatively simple procedural steps, timeframes are compact and there is little paperwork required. There is less need for detailed investigation of documents or cross-examination of witnesses. Often there is no oral evidence or hearings at all.
Expert determination does not suit all disputes but, taking into consideration that most contentious situations are driven by parties’ wishes to reach incompatible results, it is surprising how many situations can be resolved in this way.
Using our experience of acting as experts to prepare expert determinations, we are able to act as advisors or confidentially to assist a party through the process. In these situations we apply our experience to prepare carefully reasoned submissions to the expert determinator, provide considered responses to other parties’ submissions and respond to any information requests from the expert.
Our founder, Charles Lazarevic, is on the Panel for prestigious appointments made by the President of the Institute of Chartered Accountants in England and Wales. We also perform expert determinations by private appointment.
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