Expert determination provides a preliminary binding decision on a specific factual issue, often facilitating an amicable resolution of a wider dispute. It is frequently utilised for determining property values and handling company transactions.
While the decision is provisionally binding, it can still be set aside or modified by a court or arbitral tribunal. Parties may agree to use expert determination either when forming a contract or once a dispute has arisen. This method offers the advantages of confidentiality, flexibility, and cost-efficiency, allowing parties to obtain a binding decision quickly.
Since their adoption in 2010, the DIS Rules on Expert Determination have only been utilised in 11 proceedings. This corresponds to roughly one such case per year. Three of these cases proceeded and were terminated regularly, while the remainder was concluded prematurely, due to either non-payment of relevant fees or due to withdrawals induced by extra-procedural settlements. Up until this point, all parties involved in expert determination cases administered by the DIS were of German nationality. The majority of proceedings were initiated by the respective seller or contractor of the underlying sales contract.
According to the DIS-SchGO, parties are urged to collectively propose a sole expert determinator (Section 6.1). Alternatively, in proceedings, in which a board of three expert determinators is to be established, parties are required to put forth an expert determinator each (Section 6.2). The DIS Appointing Committee may otherwise designate an expert determinator in case party agreement is impossible or deadlines are not adhered to. This far, the Appointing Committee has done so in three DIS proceedings.
Katharina Lueg and Jakob Riedel