(a) Any party may request [NAME OF THE BODY EMPOWERED TO DESIGNATE] to exonerate the expert and to appoint an alternate expert with the necessary expertise; and expert clauses govern the competence of the expert and the execution of the determination. As a rule, they should cover the following points: you can also include a provision on confidentiality in the expert identification clause. However, it should be borne in mind that such a provision may be replaced by legal or regulatory requirements. Alternatively, you can set a precedent in dispute resolution – in such a scenario, litigation is preferable to an expert decision. Below is a list of appointing authorities who can be contacted either to provide general advice or to appoint an expert if the parties cannot agree on the choice of expert. In addition to choosing an expert with the appropriate qualifications, the parties can choose important elements such as the language of the evaluator`s appointment or the location of a meeting. The determination of the assessor in accordance with WIPO`s rules of expertise can only take place with the consent of both parties. In the event of future disputes/discrepancies arising from a contract, the parties will include an expert clause in the respective contract. An existing dispute or discrepancy may be referred to an expert opinion by means of a submission agreement between the parties. Unlike mediation, a party cannot unilaterally withdraw from the expert proceedings. Expertise is a useful method of dispute resolution when used in the right circumstances. Think carefully before referring some or all of your disputes to an expert`s decision and make sure this is the right forum for those disputes. Once the parties have agreed to refer a particular dispute to an expert decision, the competent courts may give you your consent and deny you jurisdiction to hear that dispute.
In addition, depending on the jurisdiction, damages may be awarded for damages caused by failure to comply with the terms of an expert declaratory clause. The courts of England and Wales have previously found the parties guilty of their agreement to refer the disputes to an expert and have awarded damages consisting of the costs wasted in the proceedings brought in breach of the relevant clause.3 If the parties agree to be bound by the expert`s decision, it is very difficult to challenge them; there is no appeal as in the judicial system and fewer grounds of appeal than in arbitration. This greater certainty in the purpose of the result and the benefits in terms of cost and speed are one of the most attractive features of expert determination. Paradoxically, this is also one of the biggest pitfalls: if the expert is wrong, the parties can stick to the decision.1 Under WIPO rules, the parties can jointly choose an expert. If the parties have not agreed on the person of the expert or on any other procedure for the appointment of the expert, the expert shall be appointed by the Centre after consultation with the parties. The Center has access to experts with relevant expertise in IP issues in a variety of technical and business fields. This allows the Centre to propose and appoint the appropriate experts for the issue in question. It is important to explicitly emphasize that the expert`s decision must be final, but you should also ask yourself why you want to be able to challenge an expert`s decision. As mentioned above, unless the contract expressly provides otherwise, the expert`s decision can generally only be challenged on the basis of fraud, bias or a substantial deviation from the instructions.
The mere fact that the expert made a mistake is not a reason to challenge his decision. Therefore, it is customary for the parties to agree that an expert`s decision is binding, except in the case of a “manifest error”. Such an error would occur if the expert made a simple and obvious error or an obvious oversight or error. Expert decision is a historically recognized form of dispute resolution that is used when there is no dispute formulated in which the parties have definite positions that must be submitted to arbitration, but both parties agree that an assessment is required. Many of the pitfalls associated with expert determination can be avoided with careful, bespoke designs. Of all dispute resolution clauses, an expert opinion clause requires the utmost care and adaptation to specific circumstances. .