Final and binding expert determination where the expert acts “as an expert and not as an arbitrator” has also emerged, to some extent, as an ADR technique, presumably in response to unsatisfactory arbitration experience. Expert determination has perhaps most manifested itself in North America in the form of the role played by dispute review boards and project neutrals. However the use of expert determination as an ADR technique on construction projects in North America has received less attention than it has elsewhere in the world, particularly where determinations by experts are agreed to be final and binding on the parties to the contract. A more typical approach in Canada, for example, where dispute review boards are implemented, is for contracting parties to agree that the dispute review board will provide “recommendations” on disputes, rather than final and binding decisions. That typical contractual approach also usually provides that such recommendations are admissible as evidence in any subsequent arbitration or litigation proceedings. Accordingly, the dispute review board recommendations may ultimately be very influential, but this provisional use of dispute review boards falls short of the “final and binding” expert determinations which have received court attention outside North America and which are the primary focus of this paper.

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