Expert Determination: When Is It the Right Process?
9 June 2026 · infraADR
Construction and infrastructure related disputes frequently involve issues requiring specialist technical, commercial or industry knowledge.
Some disputes involve complex questions of law and fact requiring formal adjudication. Others turn predominantly on a much more defined question: What is this variation worth? Does the work comply with the specified requirement? What does the relevant scope actually require? What is the effect of this delay on the program?
Where the issue is relatively discrete and specialist expertise is important, expert determination can provide a particularly useful dispute resolution mechanism.
What is expert determination?
Expert determination is a process in which an independent expert is appointed to determine a particular dispute or defined question in accordance with the contract or agreed terms of reference.
The expert is selected for expertise relevant to the matter in dispute. Depending on the issue, this may involve engineering, quantity surveying, programming, valuation, construction, commercial or other specialist expertise.
Unlike arbitration, expert determination will generally not involve a full adversarial hearing. The procedure can instead be designed around the particular question requiring determination.
Is the determination binding?
It can be.
Many construction and infrastructure contracts already prescribe expert determination and establish whether the outcome will be binding.
Alternatively, parties may agree to refer an issue to expert determination after a dispute has arisen.
In either case, the terms governing the process matter. The expert's jurisdiction, the question being determined, the procedure and the status of the determination should be clearly understood from the outset.
Expert determination or arbitration?
This is not necessarily a question of which process is better. It is a question of which process fits the dispute.
Arbitration provides a formal adjudicative process resulting in an arbitral award and may be appropriate for disputes involving substantial legal, factual and evidentiary issues.
Expert determination can provide a more focused process where the parties require an independent determination of a technical or commercial issue and relevant industry expertise is particularly important.
Matching the dispute to the appropriate process can avoid imposing unnecessary procedural complexity on an issue that may be capable of more targeted resolution. Equally important is selecting an expert with the appropriate experience and competencies for the particular issues being determined.
infraADR's expert determiners bring extensive construction and infrastructure industry experience, together with strong technical and commercial competencies. This enables complex issues to be considered not only on the material presented by the parties, but with an understanding of the practical and commercial realities of project delivery.
Speak with infraADR
infraADR provides independent dispute resolution services for construction and infrastructure projects across Australia. Early advice can make a significant difference to the outcome.