Most well drafted large commercial contracts, particularly the key M&A documents of share or business purchase agreements, now provide for alternative dispute resolution as a means to resolve disputes arising from performance or non-performance of the contracts.
One of the most prevalent forms of ADR we are regularly instructed in is expert determination.
Where we act as the expert determiner, we consider the expert determination provisions within the contract and agree appropriate terms of reference and procedure with the parties in dispute. We then receive and co-ordinate exchanges of submissions and responses in accordance with the agreed procedure. We carefully consider the contractual terms, parties’ submissions and supporting evidence before making our binding determination that brings an end to the dispute.
Having that experience as the expert determiner, also helps us assist parties to disputes in making submissions in determinations. We can act in a shadow capacity, where our involvement is wholly behind the scenes just assisting with tactics and presentations of submissions. Alternatively, we can produce the submissions as a Quantuma report on behalf of a party and participate in discussions and/or negotiations.
For major corporates, finding an expert determiner can be a challenge because of large firms’ frequent conflicts of interest. As a specialist advisory practice, it is rare that we would be conflicted, but our experts all have a wealth of experience working with large corporates on complex and high value matters.
Many of our introductions as expert determiner are referrals from larger accountancy general practices. All our expert witness partners are on the ICAEW President’s Appointment Scheme panel of experts.