Western and Central Africa
Eastern and Southern Africa
Eastern Europe and Central Asia
Business disputes can often be best resolved
by the parties with the assistance of an independent third party.
Expert Determination is a dispute resolution process which assists
parties resolve disputes without the delay and expense of going to
court or arbitration.
The parties enter into a binding agreement
under which they agree to submit their dispute to a person with
expertise in the area where the dispute has arisen ('the Expert")
and agree to be bound by the decision of that Expert. The Expert is
selected in accordance with these Rules from a panel of Experts
provided by ACDC. The Expert then conducts the determination in
accordance with the procedure set out in these Rules and the Expert
Determination Appointment Agreement. The Expert then makes a
determination which binds the parties.
If the parties to a dispute invoke these
Rules they will be deemed to have agreed to be bound by the terms
and conditions of these Rules and they shall fully co-operate to
participate in the Expert Determination.
In the event that there is any conflict or
inconsistency between the Expert Determination Appointment
Agreement and these Rules:
(a) the Rules shall prevail if the conflict
or inconsistency relates to any matter set out in clauses 5(a), 8
or 9 herein;
(b) otherwise the Expert Determination
Appointment Agreement shall prevail.
For more information about Expert
Determination or other ACDC dispute resolution procedures, please
ring ACDC on (02) 9267 1000.
1. Notification of Parties to the
(a) If the parties to a dispute have invoked
these Rules by referring the dispute to ACDC (either by consent of
the parties, by way of an ACDC Expert Determination clause in the
instrument of agreement or otherwise), the party (or parties) who
alleges that a dispute has arisen which requires resolution by an
Expert shall give written notice to the other party (or parties)
(i) the nature of the dispute that has
(ii) the areas of expertise it considers are
required to resolve the dispute; and
(iii) a brief description of the project or
circumstances of the dispute. (the "Notice of
(b) Within twenty-one (21) days of receipt of
the Notice of Dispute, the other party (or parties) shall provide a
written response stating its position in relation to the dispute,
(i) a statement of the areas of expertise it
considers are required to resolve the dispute; and
(ii) any comments it has on the matters set
out in (a)(iii). (the "Notice of
(c) Within fourteen (14) days of receipt of
the Notice of Response the parties must take reasonable steps to
confer and try to resolve the dispute.
(d) If the dispute is not resolved within
fourteen (14) days or within such further period as the parties
agree, then the parties, or any one of the parties, shall notify
ACDC that the dispute has not resolved, that the dispute is to be
referred to Expert Determination and each party shall pay half (or
such other proportion as may be agreed by the parties and ACDC) of
the ACDC registration fee set out in clause9.
2. Selecting an
(a) Upon receiving the registration fee and a
copy of the Notice of Dispute and the Notice of Response, ACDC will
select two or more appropriately qualified experts, based on the
material set out in the Notice of Dispute and Notice of Response,
and provide the parties with details of each person's
qualifications and experience together with information concerning
the fees charged by each person.
(b) Within seven (7) days of receiving the
details and information concerning the fees, each party shall
provide ACDC with a list setting out their order of preference in
relation to the proposed Expert. If any party believes that a
person whose details have been provided is unsuitable to act as the
Expert for some reason (such as known by a party) they should
notify ACDC accordingly.
(c) Upon receipt of the lists of preferences,
ACDC will determine whether the parties, have identified a
preferred Expert. If so, ACDC will appoint the preferred
(d) If the parties have failed to identify a
preferred Expert and the parties have agreed to invoke another
method of appointing the Expert, ACDC will follow that
If the parties have not specified any
alternative method, or the alternative method does not result in
the appointment of an Expert within a reasonable time, ACDC will,
in its absolute discretion, appoint an Expert.
(e) Upon appointment of an Expert ACDC will
provide the Expert with copies of the Notice of Dispute and the
Notice of Response and request the Expert to advise ACDC of any
conflict of interest or any reason for perception of bias in that
person acting as the Expert responsible for resolving the dispute.
If so advised ACDC will inform all the parties. If the parties
still wish to continue with that Expert they must provide ACDC with
a statement, in writing, that they are aware of the conflict of
interest or facts that may give rise to a perception of bias but
wish to proceed with the appointment of that Expert (see also
clause 3). If the parties do not wish to continue with that Expert
ACDC will, in its discretion, appoint another Expert.
3. Neutrality of
(a) The Expert is independent and impartial
and has no vested interest in the outcome of the Expert
(b) If the Expert becomes aware at any stage
of any circumstance that might reasonably be considered to
adversely affect the Expert's capacity to act independently or
impartially, the Expert must inform the parties immediately. The
Expert must in such circumstances terminate the Expert
Determination, unless the parties agree otherwise.
4. Expert Determination Appointment
Within fourteen (14) days of ACDC notifying
the parties of the appointment of the Expert the parties and the
Expert will execute the Expert Determination Appointment Agreement
in the form of the Agreement contained in Schedule 1 to these Rules
or as amended in writing and signed by the parties and the Expert.
The Expert Determination Appointment Agreement shall be
incorporated into, and form part of, these Rules.
5. Actions prior to Commencement of
the Expert Determination
(a) Within seven (7) days of ACDC notifying
the parties of the appointment of the Expert ACDC shall provide the
parties with an estimate of the fees and disbursements in the
Expert Determination. Unless otherwise agreed by the parties, the
Expert and ACDC, within fourteen (14) days of receiving the
estimate, and in any case prior to commencement of the Expert
Determination, the parties shall provide ACDC with a security
deposit in the amount of the estimate. The security deposit may be
utilised in accordance with clause 9 of these Rules.
(b) The Expert may, if the Expert so desires,
arrange a joint meeting or meetings with the parties. The meeting
is not a hearing.
(c) The Expert may shall not meet separately
with the parties to discuss the dispute, unless both parties agree
that separate meetings can occur.
(d) The parties agree to comply with any
procedural directions the Expert may give in the preparation for or
in the course of the meeting.
6. Representation and
(a) Each party is entitled to be represented
at any meeting and the Expert Determination by its legal
representative and other persons with information or knowledge
relevant to the Expert Determination.
(b) Unless the parties and ACDC otherwise
agree, each party shall give ACDC, the Expert and the other party
at least seven (7) days notice of who will be attending any meeting
on its behalf.
Confidential information disclosed to the
Experts by the parties or by others attending in the course of the
Expert Determination shall not be divulged by the Expert, unless
authorised in writing by both parties. The Expert shall not be
compelled to divulge records, reports or other documents
(electronic or otherwise) received by him or her while serving in
that capacity, or testify in regard to the Expert Determination in
any adversarial proceeding, judicial forum or body.
Except in the case of fraud:
(a) the parties release ACDC, its officers,
employees and agents and the Expert from any liability of any kind
whatsoever arising out of or in connection with the Expert's
appointment or the Expert Determination.
(b) the parties jointly and severally
indemnify, and will keep indemnified, ACDC its officers, employees
and agents from and against any claim for negligence or breach of
any trade practices or fair trading legislation which may arise in
connection with or resulting from the Expert's appointment or any
act or omission arising out of or in connection with the Expert
Determination. The indemnity is expressly given for the benefit of
the parties indicated and may be enforced by them individually if
This document may be produced and relied upon
as a complete defence to any such claim.
(a) The parties agree to that they are
equally responsible for the costs of the Expert Determination
including room hire, ACDC's non-refundable registration fee of
$550.00 (incl. GST) (covering the first 3 hours of administration),
any further administration fees due to ACDC at the rate of $165.00
(incl. GST) per hour (after the first 3 hours covered by the
registration fee), and the Expert's fee (of which 10% is payable to
ACDC), and any other disbursements.
(b) The parties shall forward to ACDC their
half share or other such proportion of the security deposit as
required by these Rules.
(c) Each party shall bear its own costs of
the Expert Determination.
(d) The Expert and ACDC may submit
progressive invoices to the parties which can be drawn down against
the security deposit.
(e) In the event that the security deposit is
insufficient to cover the anticipated fees and disbursements of the
Expert or ACDC the parties agree to submit such further security
deposit as may be reasonably requested by ACDC or the
(f) If the further security deposit is not
received by ACDC within seven (7) days of the request by ACDC or
the Expert, or such shorter period as ACDC or the Expert reasonably
requires, the Expert and ACDC may suspend provision of their
services in the Expert Determination until such time as the further
security deposit is received.
(g) In the event that the Expert
Determination is suspended in accordance with the above clause the
parties agree that neither ACDC, its officers, employees or agents
nor the Expert shall have any liability whatsoever to the parties
or any other person and the parties will indemnify ACDC, its
officers, employees, servants and agents and the Expert from and
against any such claim by any person. This document may be produced
and relied upon as a complete defence to any such claim.