DISPUTE RESOLUTION
relevant legal matter with the help of a legal expert. The expert determination mechanism requires parties to agree on the identity of the expert, and if the parties failed to agree on the expert within a specified timeframe given in the expert clause in the contract, either party may request a nominated third party such as a professional institution to appoint a suitable expert. An expert will be appointed because of his or her knowledge and experience on the subject in dispute. It is prudent, unlike arbitration and adjudication, to give the expert some flexibility as to the manner in which the process of dispute determination is to be conducted. The reason for making an expert determination non-binding may be to give the parties an idea as to how the dispute might be decided if it was pursued through a binding process like arbitration or litigation.
SUMMARY
determination. An expert does not have power to call evidence and the witnesses' expert may have to depend on a series of expert witnesses. As almost all of the disputes that are referred to the experts are technical in nature it rarely would need evidence and factual witnesses. Considering the user-friendliness of the overall process, unlike strict rules and procedures that govern arbitration proceedings run by legal professionals, expert determination shall be more streamlined for better practice in the construction industry.
Ajantha Premarathna FAIQS, CQS, FRICS, FIQSSL is a Chartered Quantity Surveyor with three fellow memberships from professional quantity surveying institutions of Sri Lanka, Australia, and United Kingdom. He is the Region 2 President of the International Chapter of the Australian Institute of Quantity Surveyors.
The disputes in the construction industry are a common scenario. The majority of these disputes can be resolved and determined by the professionals in the construction industry, as they are the experts in the industry, more economically and effectively than traditional arbitration and adjudication proceedings. Similar to the arbitration award, expert determination can be treated as a binding decision between the parties. In order to be binding, the expert determination clause in the contract shall state so. Having a binding expert determination clause in the contract ensures parties can effectively settle their dispute. The problem may arise when evidence or a witness may need to call for such
BUILT ENVIRONMENT ECONOMIST: SEPTEMBER - NOVEMBER 2021: 61