Expert Determination: What It Is and How It Works

By Noah Bolmer

Expert witnesses ordinarily offer opinions for consideration by a judge, jury, or arbitrator, but some disputes place the expert in the decision-maker’s chair. Through a contractual process known as expert determination, the parties appoint an independent specialist to resolve a defined technical, financial, or valuation question, and they may agree in advance that the result will bind them. For certain experienced expert witnesses, the process represents a distinct form of dispute-resolution work built on expertise they already possess. 

A Specialist Form of Dispute Resolution 

Expert determination developed from the longstanding practice of assigning valuation questions to specialists. Its roots lie in English common law, where parties appointed knowledgeable third parties to value property and other assets. Accountants, appraisers, and surveyors were well suited to resolve questions involving rent, shares, and commercial property because the answer depended on the application of specialized professional judgment. The same approach remains visible in modern contracts that refer valuation disputes to independent accountants or appraisers. 

Commercial agreements eventually extended the model beyond valuation. Expert determination now appears in matters involving post-acquisition accounting, construction, engineering, real estate, information technology, energy, intellectual property, and other specialized subjects. Its central feature remains consistent: the parties refer a defined issue to an independent professional selected for relevant expertise. The process may stand alone or operate alongside litigation or arbitration, with the expert resolving an assigned question while a court or arbitrator addresses other parts of the dispute. Organizations including the International Chamber of Commerce and the World Intellectual Property Organization provide appointment services and procedural frameworks for expert proceedings. 

The determiner’s authority comes from the parties’ agreement. A contract may: 

• Identify the disputes subject to expert determination 

• Specify the qualifications required of the expert 

• Designate an organization to appoint the expert 

• Establish procedures for the determination; and 

• State whether the resulting decision will bind the parties 

This contractual foundation distinguishes expert determination from conventional expert testimony, in which the witness provides an opinion to a separate fact-finder. It also distinguishes the process from arbitration and other forms of ADR. Arbitration may encompass legal interpretation, contested facts, witness testimony, and multiple claims, while expert determination ordinarily assigns a defined question to a specialist who can apply professional knowledge directly to it. The two processes may operate within the same dispute, with an arbitrator resolving broader contractual claims and an expert determiner deciding a specific calculation, valuation, or technical question. 

Where Expert Determination Is Used 

One of the most established modern applications of expert determination arises after mergers and acquisitions, where an independent accountant may resolve disputes over the calculation of the final purchase price. Valuation is another significant area of use. Accountants, appraisers, and surveyors may determine the value of businesses, shares, real property, intellectual property, or other assets under a range of commercial agreements. 

The process also extends to construction and engineering disputes involving cost, completion, technical performance, or compliance with specifications. In technology contracts, a specialist may decide whether software, equipment, or another system satisfies agreed requirements. Energy, infrastructure, finance, and licensing agreements may likewise assign defined technical or financial questions to independent professionals. The determiner addresses the particular matter referred by the parties, while broader contractual or legal claims remain with a court or arbitrator. 

How Expert Determination Works 

Once the parties have agreed to submit a defined question for expert determination, they must select the professional who will decide it. They may make that selection jointly or assign the task to a professional body or dispute-resolution institution. The nature of the question largely determines the expertise required, while availability, independence, and the parties’ views may also influence the appointment. For example, the World Intellectual Property Organization Expert Determination Rules require the appointing center to consider the subject of the determination, the candidate’s relevant expertise and availability, and any views expressed by the parties. 

Once appointed, the determiner conducts the proceeding under the parties’ agreement and any rules they have adopted. Each side generally provides its position and supporting materials, which may include records, calculations, technical reports, or even expert witness report style analyses prepared by separately retained experts. The determiner may also request additional submissions, meet with the parties, require statements or appearances by witnesses, or inspect a relevant site, property, product, or process. These procedural options are expressly available under the World Intellectual Property Organization Expert Determination Rules, although other proceedings generally operate similarly. 

After considering the submitted information and applying relevant professional expertise, the determiner issues the decision in the form required by the agreement. Some determinations include written reasons, while others provide only the result. Under the World Intellectual Property Organization Expert Determination Rules, a determination ordinarily must be written and reasoned, and it is binding unless the parties have agreed otherwise. Other institutional rules or private agreements may establish different requirements. 

Who Serves as an Expert Determiner? 

An expert determiner must possess professional expertise closely matched to the question presented. The necessary background will vary with the assignment, and no single credential applies across fields or proceedings. Relevant qualifications may include professional credentials, practical experience, familiarity with the industry or asset involved, and prior work on the particular type of calculation or technical issue in dispute. 

Subject-matter expertise alone may not prepare someone to conduct the determination. The role can include managing submissions from both parties, deciding whether additional information is needed, remaining within the authority granted by the agreement, and producing the determination in the required form. Professional organizations therefore may offer specialized training in procedural management and decision writing for professionals interested in serving as determiners. 

Conclusion 

Expert determination gives specialized knowledge a decisive role in resolving disputes. For experienced expert witnesses, it offers an adjacent form of dispute-resolution work that draws on familiar professional judgment while adding responsibility for a neutral process and its outcome. With appropriate preparation, experts may find another valuable application for the knowledge they have developed throughout their careers. 

If you’d like to be considered for expert witness opportunities, join Round Table Group. For over 30 years, we’ve connected litigators with the most qualified experts across disciplines. Call us at 202‑908‑4500 or sign up today to learn more.