Expert determination
Encyclopedia
Expert determination is a historically accepted form of dispute resolution
invoked when there isn't a formulated dispute in which the parties have defined positions that need to be subjected to arbitration
, but rather both parties are in agreement that there is a need for an evaluation.
The practise itself is millennia old and well established where complex legal institutions either have not developed, or are unavailable, such as tribal societies and criminal organisations.
In the context of modern jurisprudence the word "expert" appears first in Bottomley v Ambler 1878 38 LT 545, this was however used ambiguously also referring to arbitrators having the qualification of expert. The first mention that distinguishes specifically against the practise of arbitration, and introduces the formula "as an expert and not as an arbitrator" was in Dean v. Prince 1953 Ch. 590 at 591 (misquoted) and subsequently on appeal in the year 1954 1 Ch. 409 at 415. In Contract Law, the parties
are free to include a forum selection clause
appointing a special referee
to resolve specialised but disputed factual issues between them.
Dispute resolution
Dispute resolution is the process of resolving disputes between parties.-Methods:Methods of dispute resolution include:* lawsuits * arbitration* collaborative law* mediation* conciliation* many types of negotiation* facilitation...
invoked when there isn't a formulated dispute in which the parties have defined positions that need to be subjected to arbitration
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
, but rather both parties are in agreement that there is a need for an evaluation.
The practise itself is millennia old and well established where complex legal institutions either have not developed, or are unavailable, such as tribal societies and criminal organisations.
In the context of modern jurisprudence the word "expert" appears first in Bottomley v Ambler 1878 38 LT 545, this was however used ambiguously also referring to arbitrators having the qualification of expert. The first mention that distinguishes specifically against the practise of arbitration, and introduces the formula "as an expert and not as an arbitrator" was in Dean v. Prince 1953 Ch. 590 at 591 (misquoted) and subsequently on appeal in the year 1954 1 Ch. 409 at 415. In Contract Law, the parties
Party (law)
A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. Parties include: plaintiff , defendant , petitioner , respondent , cross-complainant A party is a person or group of persons that compose a single entity which can be...
are free to include a forum selection clause
Forum selection clause
A forum selection clause in a contract with a conflict of laws element allows the parties to agree that any litigation resulting from that contract will be initiated in a specific forum...
appointing a special referee
Special referee
In law, a special referee acts as a judge on matters of fact only.-Explanation:In many instances, the interpretation of the specific statutes or case law relevant to a dispute is absolutely clear. The uncertainty between the parties lies in the facts. Hence, a special referee is an expert in the...
to resolve specialised but disputed factual issues between them.