Expert determination process
Expert determination is often used where there are disagreements or disputes involving specific technical, qualitative or quantitative issues. It is usually quick, inexpensive, informal, and confidential, which makes it an attractive method of resolving problems. It also helps preserve business relationships because it is not as confrontational as litigation and arbitration.
The decision made by the expert can be either final and must be followed (binding) or an opinion that the parties can choose to accept or ignore (non-binding).
Process Overview
Starting the process
The parties need to agree to engage in expert determination. They can do this before or after the dispute has arisen.
Appointment of an expert
An expert will typically be appointed within 3 Working Days, or sooner for urgent cases.
Preliminary conference
The preliminary conference is intended to promote the efficient conduct of the process.
Submission of case
Each party will submit a written statement outlining the facts, evidence and legal arguments.
Inspections and site visits
Depending on the nature of the case, the expert may wish to inspect the subject matter or visit the relevant site.
Additional information
The expert may request further information from any party to aid their determination.
Determination
After the expert has received all the information they need, the expert will make their determination which may be binding or non-binding at the election of the parties.
Cost of expert determination
Our focus is on delivering cost-proportionate process solutions. Find out more about the cost of expert determination.
Step 1. Starting the process
To begin, both parties must agree to use the expert determination process. They can do this by including the New Zealand Dispute Resolution Centre (NZDRC) model expert determination clause in their contract. This clause allows any future disagreements or disputes to be settled using this process.
Even if they didn’t include the clause in their contract, they can still opt for expert determination by signing an agreement after a dispute arises.
If the parties agreed to expert determination before the dispute occurred, the person wanting to initiate the process (called the applicant) should send a Notice of Expert Determination to inform the other side that they want the matter resolved by an expert.
To start the process, the applicant applies to NZDRC. A Registrar will then be assigned to the case to assist the parties, their advisors and the expert throughout the expert determination process.
Step 2. Appointment of an expert
The New Zealand Dispute Resolution Centre (NZDRC) is responsible for appointing an expert unless the parties involved have already agreed on someone specific. This decision is made once NZDRC receives a completed application and payment of security for the expert’s fees and expenses.
If the parties have someone specific in mind, that person must meet certain criteria, and NZDRC must approve them as being suitable, independent and impartial.
When selecting an expert, NZDRC considers various factors, such as any agreements between the parties, the nature and value of the dispute, and the availability of the person to effectively and efficiently handle the case. The appointed expert must be impartial and independent of the parties. Any appointment by NZDRC is final and confirmed with a Notice of Appointment issued by the Registrar.
Step 3. Preliminary conference
Step 4. Submission of case
Following the preliminary conference, each party will need to prepare and send their case submission to the expert and all other parties involved. This submission should contain all relevant supporting documents and evidence.
The case submission must clearly explain the nature and basis of the dispute, the factual and legal issues at hand, each party’s position on these matters, and the outcomes they are seeking. If there is a contract involved, a copy or relevant sections of it should be included. Additionally, the submission should contain any statements, reports, documents, or other evidence that the party relies on to support their arguments.
Step 5. Inspections and site visits
Sometimes, as part of the expert determination process, a site visit or inspection might be needed, especially if the disagreement involves physical assets, locations, or conditions that need to be seen firsthand for an accurate assessment. This allows the expert to gather direct information, observe the situation in its actual context, and make a more informed and accurate decision.
Step 6. Additional information
At any point before making a decision, an expert may ask for more information if they feel the initial submissions from the parties are not sufficiently detailed or clear enough for them to make an informed and fair decision.
After receiving this additional information, any other party involved in the dispute has the right to submit a response. This response should be sent to the expert and all other parties involved.
Step 7. Determination
The expert’s role is to make a decision about the disputed issues after carefully reviewing the submissions, documents, or evidence provided by the parties, as well as any additional information requested by the expert. This decision is provided in writing and includes an explanation of the reasons behind it.
However, it’s important to understand that unlike a court judgment or arbitral award, this decision may or may not be binding. It depends on what the parties agreed upon at the start of the expert determination process.
Next steps
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Agreeing to engage in expert determination
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