The Supreme Court of Ireland has considered circumstances in which an independent expert can determine matters of law if a dispute is referred to him or her.
In Dunnes Stores v McCann [2020] IESC 1 (22 January 2020), the plaintiffs argued that the independent expert was not entitled to determine matters of law, and sought a stay on the determination.
The Supreme Court held that expert determination did not equate with arbitration, so was not governed by the Arbitration Act 2010 (which essentially made the UNCITRAL Model Law a part of Irish law). Instead, they held that the expert’s terms of reference were governed by the terms of the dispute resolution clause in the contract. If the contract envisaged that the expert could determine matters of law, the courts could not interfere with this determination.
Dunne J commented: “First of all it is clear that the independent architect is meant to act as an expert and not as an arbitrator. Secondly, it should be noted that the decision of the independent architect “shall be final and binding on the parties hereto.” The fact that a decision of an independent expert is stated to be final and binding on the parties to the agreement does not mean that the matter is forever precluded from being considered by a court. Clearly, it goes without saying, bearing in mind the case law reviewed above, that an expert who goes outside his remit does not make a decision which is binding on the parties. However, it is also clear from the terms of Clause 15 that if the expert makes a determination which falls within the scope of his remit, then the parties have already agreed in their contract that his decision shall be final and binding on them.”
The full judgment is here: http://www.bailii.org/ie/cases/IESC/2020/2020IESC1.html