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What is Expert Determination?

Expert determination is a procedure in which a dispute or a difference between the parties is submitted, by agreement of the parties, to one [or more] experts who make a determination on the matter referred to it [them]. The determination is binding, unless the parties agreed otherwise.

Notable features of expert determination are:

  • Expert determination is consensual

Expert determination under the WIPO Expert Determination Rules can only take place if both parties have agreed to it. In the case of future disputes/differences arising under a contract, the parties insert an expert determination clause in the relevant contract. An existing dispute/difference can be referred to expert determination by means of a submission agreement between the parties. In contrast to mediation, a party cannot unilaterally withdraw from expert determination.

  • The parties choose the expert(s) with relevant expertise

Under the WIPO Rules, the parties can select an expert together. If the parties have not agreed on the person of the expert or on a different procedure for appointing the expert, the expert will be appointed by the Center after consultation with the parties. The Center has access to experts with specialized knowledge relevant to intellectual property issues in a broad range of technical and business areas. This allows the Center to propose and appoint the appropriate experts for the matter referred to.

  • Expert determination is neutral and flexible

In addition to their selection of an expert with appropriate qualifications, the parties are able to choose such important elements as the language of the expert determination or the place of any meeting.  

  • Expert determination is a confidential procedure

Subject to specifically defined exceptions, the WIPO Rules specifically protect the confidentiality of the existence of the expert determination, any disclosures made during that procedure, and the resulting determination.

  • The determination of an expert is binding, unless the parties agree otherwise

In principle, the determination of an expert is binding and as such it has contractual effect between the parties. Alternatively, by party agreement, the determination may have effect as a recommendation to the parties.

  • Expert determination is a flexible procedure

Expert determination can operate on a more informal and expeditious manner than broader processes such as arbitration. Expert determination may be used on a stand-alone basis or in connection with an arbitration, mediation or court case.