Janna Purdie offers advice on distinguishing between arbitration & expert determination clauses
Arbitration and expert determination clauses can be very similar even though they involve very different dispute resolution mechanisms. So how do you know which type of clause you are dealing with? The recent case of Wilky Property Holdings v London & Surrey Investments [2011] EWHC 2226 (Ch), [2011] All ER (D) 86 (Aug) looked at this question when faced with the following clause: “22. If there is any difference or dispute as to the meaning or effect of the terms of this letter of appointment, or the calculation of the Profit Share to be paid thereunder, we agree and acknowledge that either you or we acting independently shall be at liberty to refer any such dispute to an independent expert to be appointed by either you or ourselves jointly, but in the event that you or ourselves cannot agree upon such an expert, then either we or yourselves shall request the president of the Royal Institution of Chartered Surveyors to appoint an expert to determine the dispute, whose decision thereon, and
