Expert determination is a historically accepted form of dispute resolution invoked when there isn't a formulated dispute in which the parties have defined positions that need to be subjected to arbitration, but rather both parties are in agreement that there is a need for an evaluation, e.g. in a preceding contract.
The practise itself is millennia old and well established where complex legal institutions either have not developed, or are unavailable, such as tribal societies and criminal organisations.
In the context of modern jurisprudence the word "expert" appears first in Bottomley v Ambler1878 38 LT 545, this was however used ambigously also referring to arbitrators having the qualification of expert. The first mention that distinguishes specifically against the practise of arbitration, and introduces the formula "as an expert and not as an arbitrator" was in Dean v. Prince1953 Ch. 590 at 591 (misquoted) and subsequently on appeal in the year 1954 1 Ch. 409 at 415.
References:
Dispute Resolution: Expert Determination; John Kendall ISBN 0851217982
As reported in the commercial property briefing in IHL 64, October 1998 ('Expertdetermination: court intervention', page 49), in National Grid a lease of an electricity substation provided that the rent at review was to be settled by an expert if the parties could not agree it.
Even though the expert may have made an error in his determination, he had carried out his task correctly (the test laid down in Jones), and it would be wrong to interfere with a non-speaking determination by seeking to second-guess the reasons which had led to that determination.
This is inherent in the expertdetermination process, which generally leads to a quick and relatively inexpensive result.
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