Expert Determination Model Clause

Expert Determination Agreement

Date:

Parties:

Party A:
Party B:
Party C:
Party D:

Address of Parties:

Party A:
Party B:
Party C:
Party D:

Name of Expert:
Indian Dispute Resolution Centre (IDRC)
34, Babar Lane, Bengali Market, New Delhi,110001.

Details of Dispute: (Here set out details of the contract(s) or other legal relationship(s) and brief details of the dispute(s) to be resolved by Early Neutral Evaluation.)

Terms and Conditions:

1. Appointment of Expert
IDRC will appoint an Expert to resolve the Dispute and has exclusive rights to do so under this Procedure. The Parties agree that the Expert will resolve the Dispute by Expert Determination. The Expert will act as an expert and not as an arbitrator or legal adviser.

2. Purpose of Expert Determination
Unless the Parties subsequently agree otherwise, this Expert Determination leads to a decision ("the Decision") being issued by the Expert via IDRC. The Decision will be final and binding on the Parties.

3. Confidentiality
The Expert Determination process is private and confidential. The Parties, the Expert and IDRC will keep confidential all information arising out of or in connection with the Expert Determination except where disclosure is required by law.

4. Independence
The Expert and IDRC are independent of the Parties, neutral and impartial, and do not act as advisers to the Parties.

5. Conduct of Expert Determination
The Expert will conduct the Expert Determination in accordance with procedural directions which the Expert will seek to agree with the Parties. If they cannot be agreed, the Expert’s directions will prevail.

6. Challenge to the procedure
The Parties agree that they are not permitted to challenge the Expert’s directions on issues arising during the procedure including those on the Expert’s own jurisdiction.

7. Mediation Option
At any time before the issue of the Expert’s decision the Parties may agree to refer the Dispute to mediation, in accordance with IDRC’s Mediation Rules. In that case each of the Parties notifies the Expert and IDRC, and the Expert Determination is suspended. If the dispute is settled by mediation, the Expert Determination comes to an end and the Parties settle the fees and expenses of the Expert and of IDRC. If the dispute is not settled by mediation, the Expert Determination resumes, and if the Expert has been acting as mediator, the Expert may take up his/her previous role.

8. Reasons in the Decision
The Expert’s Decision [shall/shall not] include reasons

9. Interest
The Expert is empowered to award interest as part of the Decision.

10. Fees and Expenses
Unless the Parties agree otherwise, the parties are jointly and severally liable for the fees and expenses of the Expert Determination. The fees and expenses will be estimated by IDRC upon receipt of the Agreement and paid to IDRC, to be held on account before the Expert Determination starts. The Expert will be paid fees and expenses from the account and interim bills may be raised by IDRC to cover these fees should the account run out of funds. A final account of the fees and expenses will be sent to the Parties by IDRC when the Decision is ready for issue to the Parties and the Decision will be released on payment by the Parties of any further amounts due, if any. IDRC will reimburse the Expert. If the Parties agree not to proceed with Expert Determination, IDRC will refund a proportionate amount of the fees and expenses advanced, depending on the amount of work done by the Expert and IDRC.

11. Implementation of the Decision
The Parties agree to implement the Decision within [e.g. - seven] days of the Decision being published to them.

12. Challenge to the Decision
The Parties agree that the decision of the Expert is final and binding and that the dispute cannot be referred to a subsequent tribunal.

13. No liability
The Parties expressly acknowledge that neither the Expert nor IDRC shall be liable to the Parties for any act or omission whatsoever in connection with this Expert Determination.

14. Role of IDRC
IDRC appoints the Expert. The Expert is responsible for the procedure from then on. IDRC may be consulted by any of the Parties to this Agreement in case of difficulty. Should the Expert be unable to complete the task, IDRC will appoint a substitute Expert within a reasonable time. The same costs will apply in respect of IDRC’s fee for the appointment of any substitute Expert.

15. After the Decision
None of the Parties will call the Expert or IDRC (or any employee, consultant, officer or representative of IDRC) as a witness, consultant, arbitrator or expert in any litigation or arbitration in relation to the Dispute and the Expert and IDRC will not act voluntarily in any such capacity.

16. Law and Jurisdiction
This Agreement shall be governed by English law and under the jurisdiction of the English courts. All the Parties to this Agreement agree to refer any dispute arising in connection with it to mediation first.

Signed

Signed on behalf of Party A Name:

Firm:

Signed on behalf of Party B Name: Firm:

Signed by the Expert Name:

Signed on behalf of IDRC Name:

Position:

Procedure of Expert Determination:
Once appointed, the Expert will wish to establish the procedure. Expert will seek to agree the procedure with the Parties, and that if agreement cannot be reached, the Expert’s directions will prevail. Procedural directions may deal with any or all of the following:

•  a timetable for the submission of case summaries and supporting documents to the Expert with copies to each other;
•  whether submissions are to be simultaneous or sequential;
•  whether there should be one round or two rounds of submissions;
•  whether the Expert has the power to call for documents; or
•  whether the Expert has the power to award costs.

Challenge to the procedure
Parties have no right to challenge the Expert Determination procedure before the Decision is issued. This enhances the use of Expert Determination, is in the spirit of ADR and allows the Expert to do the work for the Parties as agreed without the time and expense of court applications.