Expert determination

The use of expert determination to resolve disputes is typically more timely, less costly and more private than litigation or arbitration. In addition, the expert’s determination is often final and binding (in the absence of fraud or error) depending upon the contractual terms agreed with the parties.

Acting as Expert Determiner

Our experts have significant experience acting as Expert Determiners - building on their experience acting as party-appointed, single joint experts or advisors in litigation and national and international arbitration.

Expert determinations can be used to determine disputes over matters such as valuations or accounting treatment or disputes relating to mergers and acquisitions (“M&A”) (such as disputes involving completion accounts or earnouts).

Expert determination support

Where we are not acting as Expert Determiner, we can support parties through the expert determination process; providing our instructing party with appropriate guidance and assisting with the submission process to ensure the Expert Determiner is provided with a cohesive and well-documented position.

Examples of our experience and expertise  

In the fourth edition of 'The Guide to Mergers & Acquisitions (M&A) Arbitration', our experts Sandy Cowan, Fiona Frith, and Alexandra Kingston, outline how to deal practically with M&A disputes primarily through expert determination. The key themes covered include:

• The types of M&A disputes which are best resolved through expert determination
• The importance of the SPA drafting process
• A typical expert determination process

Accreditation: An extract from the fourth edition of Global Arbitration Review's The Guide to M&A Arbitration. Read the full publication here: http://maza.rs/6042eSTG8

Examples of our recent expert determination work:

• Acted as advisor to the sell side party in an expert determination regarding the appropriate accounting treatment to calculate the level of the earnout payable. The transaction value was c£130 million initial consideration followed by up to £55 million via two tranches of earnout consideration.
• Acted as advisor to the buy side party in an expert determination regarding the appropriate accounting treatment to calculate the quantum of a year 2 earnout. The transaction value was £5 million initial consideration followed by up to £60 million via two tranches of earnout consideration.
• Acted as an expert advisor in the context of a post-acquisition dispute of $170 million between two global conglomerates. The buyer alleged that the proposed working capital statement produced by the seller was not prepared in accordance with the relevant accounting framework and, consequently, the proposed net working capital of the business was significantly misstated.
• Acted as Expert Determiner on multiple occasions to determine whether certain items were correctly included within completion accounts in accordance with the SPA and with reference to UK GAAP or IFRS.