Can expert determination become arbitration?
In this case, an issue arose as to whether the experts crossed the threshold from expert to arbitrator. The experts were very experienced and qualified and were all former judges. A Deed defined the scope the expert determination. In determining whether the appointed expert was in fact an expert and not an arbitrator the Court held: • The language of the deed made it clear that the appointee was not an arbitrator. • The parties had agreed that the appointee would decide on what procedure would be employed to resolve the dispute. This was seen to be inconsistent with an intention to submit to arbitration. • The deed also emphasised that confidentiality was significant in relation to the resolution of the dispute between the parties. Einstein J viewed this factor as significant in terms of indicating that the proceedings were an expert determination because arbitration might compromise the confidentiality of the dispute. • The absence of the words ‘expert determination’ did not make the
