USING EXPERT DETERMINATION IN CONSTRUCTION DISPUTES
CD: How popular is expert determination as a method of resolving disputes in the construction sector in your jurisdiction or region? What types of conflict are typically well suited to this method?
Farrow: Expert determination is an infrequently used form of dispute resolution in the construction industry, notwithstanding that it provides the parties with an independent view of their differences at an early stage, and without resorting to the expense of a more formal dispute resolution process. The requirement for expert determination can be included in the parties’ original contract, or as a supplemental agreement for the purposes of obtaining independent opinion on a particular issue. Expert determination is a particularly useful dispute resolution process during the execution stage of a project, as it may prevent the parties becoming polarised and the situation leading to wider negative impacts. The process is well suited to both technical and commercial issues, for example whether work carried out is compliant with the contract, or questions related to whether something is a change, its reasonable value or its impact on the project schedule.
Allen: The use of expert determination is limited in the Middle East construction industry as arbitration and litigation are the much-preferred options for dispute resolution. However, it is used throughout the region from time to time, largely in respect of small-scale disputes that focus on one or two overarching issues, such as a point of law or a valuation difference.
Oct-Dec 2022 issue
Ankura Consulting