Expert determination is a form of alternative dispute resolution that can be particularly helpful in resolving technical disputes in tech contracts, as it involves an independent expert with specialized knowledge in the relevant field. By leveraging the expert's expertise, parties can achieve a more informed and accurate resolution to their dispute. Here are some practical examples and considerations relating to expert determination clauses in tech contracts: - How the expert will be appointed: The expert determination clause should outline the process for selecting and appointing the expert. This might involve each party nominating their preferred expert and then jointly agreeing on one, or engaging a professional organization to recommend an expert. For example, in a dispute over a data center's energy efficiency, the parties might agree to appoint an expert with experience in data center design and energy management. Role and powers of the expert: The expert determination clause should specify the expert's role and powers in the dispute resolution process. This may include reviewing relevant documents and information, conducting investigations or tests, and providing a written report with their findings and recommendations. For instance, in a dispute over the performance of a cloud-based service, the expert might be granted access to the system logs and performance data to make an informed determination. Fees and disbursements relating to the expert determination: The expert determination clause should address the allocation of fees and costs associated with the process. Parties might agree to split the expert's fees equally, or they may decide that the losing party will bear the costs. Alternatively, the expert could be empowered to allocate costs as part of their determination. Representation and attendance at the determination: The expert determination clause should establish whether the parties can have legal representation during the process and whether they can attend meetings or hearings conducted by the expert. This can help ensure that the parties have the opportunity to present their case and address any concerns or questions raised by the expert. Obligations of parties: The expert determination clause should outline the obligations of the parties during the process, such as providing information, documentation, and access to relevant systems or facilities. This can help ensure that the expert has the necessary information and resources to make an informed determination. The status of the expert determination: The expert determination clause should specify whether the expert's decision will be binding or non-binding on the parties. If the determination is binding, the parties will be obligated to comply with the expert's decision. If it is non-binding, the parties may choose to accept the expert's decision or pursue other dispute resolution methods, such as arbitration or litigation. - In conclusion, expert determination can be an efficient and effective method of resolving technical disputes in tech contracts. By carefully considering the various aspects of the expert determination process, parties can craft a dispute resolution clause that best suits their needs and ensures a fair and accurate resolution to their disputes.