July 16, 2018 | less than a minute read

What can the Expert/Arbitrator Decide?

Maples Teesdale

In the recent Blundell lectures Guy Fetherstonhaugh QC delivered a timely reminder as to the benefits of using ADR to resolve disputes instead of issuing proceedings in court. However, parties need to exercise care when drafting the scope of the expert's jurisdiction to try and avoid subsequent satellite litigation about whether or not an expert has the power to determine the meaning of an agreement.

If the expert has valued the wrong shares, then his determination will be a nullity, because he has not done that which he was appointed to do. If, on the other hand, he values the right shares, but in a wrong way, his determination must stand. So far so good. Suppose, however, that the expert valued the wrong number of the right shares: what then? And what if the expert valued the right number of shares on the wrong basis: what then? In each case, the expert has not done what he was appointed to do, and it may be said to be well arguable that his determination should be set aside. That was the (obiter) conclusion of Lord Neuberger MR in Barclays Bank Plc v Nylon Capital LLP [2011] EWCA Civ 826; [2011] 2 Lloyd’s Rep 347.