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If, in this example, the parties agree that the expert is to be appointed as
an arbitrator, the rules will be clear. The expert will nevertheless need to
understand what these rules are and be able to convey them to the parties.
They will also need to establish a procedure which may, by agreement, be
designed to be less formal in order to best meet the parties’ objectives. As
an arbitrator, then, the appointed expert will know how to proceed and what
happens if either of the parties does not like the decision. The parties, too,
should have a good understanding of what they have embarked on.
If not acting as an arbitrator, the independent expert deciding the matter
may believe they are simply doing what they do every day in their professional
life. This is largely true, but there is a danger here of paying less
attention than is required to procedural issues. Although the role of the
expert is to conduct their own inquiries and to ensure this is done in the
way mandated by their professional code of practice, there is a heightened
need to do this in a way that cannot be impugned by either party or become
grounds for an allegation of negligence. Consequently, while an expert cannot
order production of documents in the same way that an arbitrator can,
they do need to ensure—by making appropriate inquiries—that every effort
is made to obtain the information they need to complete the task. They will
also need to make certain that whatever procedure is described in the contract,
or is agreed to by the parties, is followed closely.
If parties wish to settle disputes by using an independent expert, the role
of that expert, the task they have been asked to perform and the process
they are to follow need to be understood by everyone involved at the outset.
By clarifying the nature of the appointment—arbitrator or expert—and
establishing an agreed procedure, the potential for challenges later on will
be alleviated. Failing to do this could result in extensive litigation—just what
the parties were trying to avoid by creating what they thought was going to
be a quicker and less formal process to resolve their differences.
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