Expert Determination Model Clause

Expert Determination is a simple means of binding dispute resolution. Unlike adjudication or arbitration, Expert Determination is not governed by legislation: it is a consensual process the parties to a construction contract agree to refer the dispute to an independent expert to decide.

Agreement for expert determination

If there is a dispute and there is no clause in the agreement between the parties to Expert Determination, the parties can agree to Expert Determination by a written agreement following the clause [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 Building Disputes Tribunal (BDT), 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 BDT upon the application of any party.]”

Model clauses

Looking for a model clause to put in your contract for future disputes? The following clause is recommended:

“In the event of any dispute or difference arising out of or in connection with this contract, or the subject matter of this contract, including any question about its existence, validity or termination, the parties must refer that dispute in the first instance to Expert Determination in accordance with the Expert Determination Rules of the Building Disputes Tribunal.”

Unless the parties intend for Expert Determination to be final and binding, we recommend that the above clause then be followed by the following model arbitration clause:

“If either party is dissatisfied with the expert’s determination, either party may, by service of a Notice of Arbitration, require the matter in dispute to be referred to arbitration in accordance with the Arbitration Rules of the Building Disputes Tribunal.”