If you are a party to a commercial contract where Chartered Accountants ANZ (or ICAA or NZICA) has been named in relation to the nomination of an independent expert this clause may no longer operate as intended. This may result in this dispute clauses being unenforceable and leaving the disputing parties without an agreed approach to appoint an independent expert.
It is recommended that you review any contracts to see whether this issue may arise and seek appropriate advice on your options.
If a dispute has already arisen and there is no agreement between the parties to refer the dispute to Expert Determination, the parties may enter into an agreement for those purposes and the following clause is recommended. The words in square brackets should be deleted/completed as appropriate.
“[Name of first party] and [Name of second party and Ors] hereinafter referred to as the parties, are parties to a contract entered into on or about [enter date].
The parties have agreed that [all matters in dispute between them/the matters in dispute between them set out in the Schedule attached hereto] shall be referred to Expert Determination by [Name of Expert] in accordance with the Agreement for Expert Determination and Rules for Determination of Disputed Matters by Expert of the New Zealand Dispute Resolution Centre (NZDRC) which procedures and rules are deemed to be incorporated by reference herein.
[if the parties are unable to agree upon the identity of an Expert within [five (5)/ten (10)] working days from the date of this agreement, then the Expert shall be appointed by NZDRC upon the application of any party.]”
Agreement for Expert determination
All parties who wish to use NZDRC’s Expert Determination for finance and tax related services are required to sign our standard form Agreement for Expert Determination and Rules for Determination of Disputed Matters by Expert.
The Agreement for Expert Determination has a schedule which is a schedule of matters in dispute for expert determination and three appendices: Appendix 1 - confidentiality agreement for representatives of parties to expert determination, Appendix 2 - default procedure for expert determination and Appendix 3 - fees and expenses for expert determination.
Please click here to download a sample agreement, including the Expert Determination Rules.
NZDRC Rules and Guidelines
NZDRC has developed highly sophisticated and proven Rules and Guidelines that provide an effective contractual process by which Expert Determination is conducted. This efficiency translates into a dispute resolution process that provides a legally binding determination to resolve disputes which minimise time loss, cost, stress and disruption for parties.
NZDRC recognises that often, parties to a dispute simply require someone to provide an independent and impartial opinion on a matter. In these situations, NZDRC can provide you with someone properly qualified in tax and financial services to determine these matters via its expert determination service.