– The rise of expert determination: A better alternative than arbitration?

Robert Hunt
11.15 in Kirraala

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Until at least the late 1980’s, most commercial and construction disputes in Australia, New Zealand, the UK and most other developed countries were determined either by litigation in the Courts, or by arbitration. Since that time, with the rise of consumerism and demands from government organisations and commercial clients for more efficient cost-effective Dispute Resolution, there has been an increasing trend in Australia and overseas away from traditional litigation and arbitration as the preferred means of determining commercial and construction disputes.

Arbitration was perceived as having become bogged down with processes derived from litigation which made the practice of arbitration much more costly and less efficient than it should otherwise have been. The fact is that the users of Dispute Resolution services have created a demand for an additional adjudicative process called Expert Determination in preference to litigation or arbitration.

These days, it is common for large commercial or construction contracts to prescribe Expert Determination as part of a ‘tiered’ Dispute Resolution process. For example, the New South Wales Government GC21 General Conditions of Contract contain a contractual regime for determination of disputes which includes Expert Determination, which is final and binding unless the expert determines that one party pay the other party not less than AUD$500,000 (in which case either party may elect to submit the dispute to arbitration).

Advocates of Expert Determination usually point to savings in cost and finality as advantages which Expert Determination has over Arbitration. In this session, Robert will consider the advantages (and disadvantages) of Expert Determination, hopefully with the benefit of input from other experienced Dispute Resolution professionals in the audience.

Get to know Robert
robert hunt2After working in the construction industry as a civil engineer and builder from 1967, Robert Hunt has practised as a lawyer and dispute resolver since 1983 in international and domestic disputes, usually in construction, engineering, marine, mining, commercial and intellectual property matters.

He is a Past President of the Institute of Arbitrators & Mediators Australia (IAMA), and was a Director of the Australian Centre for International Commercial Arbitration (ACICA) from 2000 to 2009. He is a Life Fellow, a Grade 1 Arbitrator and accredited as a Mediator (NMAS) and Adjudicator by IAMA, as well as being a Fellow and on the Panel of Arbitrators of ACICA. He is also a Chartered Arbitrator on the London Panel of the Chartered Institute of Arbitrators, as well as being a member of numerous other Dispute Resolution panels in Australia and overseas. He has been particularly active in promoting prompt and cost-effective resolution of technical and commercial disputes, and has spoken on this topic at various conferences in Australia and overseas.

Robert drafted the IAMA Rules for the Conduct of Commercial Arbitrations (incorporating the Expedited Arbitration Rules) 1999, the IAMA Expert Determination Rules 2001 & 2010, the IAMA Mediation and Conciliation Rules 2001, the IAMA Industry and Consumer Scheme Rules 2001, the IAMA Mediation Rules 2010, the IAMA Conciliation Rules 2010. He was a co-author of the IAMA Workplace Relations ADR Rules 2006 and the IAMA Arbitration Rules (incorporating the Fast Track Arbitration Rules) 2007.

Robert has conducted the Expert Determination Workshops for IAMA in various locations around Australia since 1998. He has written extensively on cost effective Dispute Resolution and avoidance, and has delivered papers on the subject at many conferences in Australia and overseas. He has written various lAMA Practice Notes, three chapters in ‘A Guide to Arbitration Practice in Australia’ (University of Adelaide) 2nd edition, as well as many articles on arbitration, ADR and dispute avoidance which have been published in Australia and overseas. Copies of various published papers are available at www.roberthuntbarrister.com.

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