Expert Determination on Saudi Giga Projects – Do’s and Don’ts

Expert Determination is designed to be a quick and efficient method for resolving disputes, typically within 21-30 working days after an Expert’s appointment. However, the actual duration can vary significantly based on several factors, especially in large and complex projects such as Saudi Arabia’s current Giga Projects.

– David Brodie-Stedman
davidbrodiestedman@dispute-iq.com

Factors Influencing Duration:

• Complexity of Disputes: Giga projects often involve intricate technical, financial, and contractual issues that can extend the time needed for Expert Determination.
• Procedural Delays: Any procedural issues or additional requests for information or hearings by the Expert and/or the lawyers representing the parties can also extend the process.
• Availability of Experts: Finding and appointing an Expert with the necessary qualifications and experience can sometimes take longer than anticipated.
• Cooperation of Parties: The willingness of both parties to cooperate and provide necessary information promptly can significantly impact the timeline.

Real-World Example:

On a recent Saudi Giga Project dispute considered by DisputeIQ, the Expert Determination process was several months underway. What happened to the contracted 21-day resolution? The process had been lengthened by lawyers on both sides, lack of detail in both parties’ submissions, delays in finding the Expert, and the Expert then extending the review process and requesting hearings. Quick justice? We think not.

Typical Giga Project Expert Determination Process:

1. Referral to Expert Determination:
   • Either party can refer a dispute to Expert Determination if it cannot be resolved within 40 days of the initial notice of dispute (i.e., an Amicable Settlement period).
2. Appointment of the Expert:
   • The Expert will likely be nominated by the President of the Royal Institution of Chartered Surveyors (RICS) or another industry body if the parties do not agree on an Expert.
3. Expert’s Process:
   • The Expert usually has the discretion to set procedures, including fixing a time and place for hearings or receiving written submissions.
   • The Expert is often expected to issue a written opinion within 21 working days of commencing the appointment (sometimes longer).
4. Total Duration:
   • The process will take up a minimum of 91 days (40 days for amicable settlement + 30 days to find and appoint an Expert + 21 working days for Expert Determination), assuming no delays in appointing the Expert or other procedural issues.
   • As pointed out earlier, this period often extends way beyond this duration, adding to the cost and often ultimately rendering a decision which one or both parties object to and seek to overturn by subsequent Arbitration.

Do’s and Don’ts for Contractors Seeking Expert Determination on Saudi Giga Projects

Do’s:

1. Prepare Thorough Claim Documentation:
   • Ensure all claims are well-documented with contemporary records and supporting evidence. This will help substantiate your claims and make a strong case during the Expert Determination process. A detailed initial claim will mostly obviate the need for Expert Determination or Arbitration at all.
2. Engage Early and Communicate Clearly:
   • Notify the Employer’s Representative as soon as you become aware of any events or circumstances that may lead to a claim. Clear and timely communication can prevent misunderstandings, delays, and missed entitlement.
3. Follow Contractual Procedures:
   • Adhere strictly to the procedures and timelines outlined in the contract for submitting notices, claims, and supporting documents. This includes meeting deadlines for initial notices, detailed claims, and any additional information requested.
4. Cooperate with the Appointed Expert:
   • Provide all requested information and cooperate fully with the Expert’s procedures. This includes attending hearings, submitting written submissions, and responding promptly to any requests for further particulars.
5. Seek Amicable Settlement First:
   • Properly attempt to resolve disputes amicably through meetings and discussions before escalating to Expert Determination. This can save time and resources and may lead to a more satisfactory outcome for both parties.

Don’ts:

1. Delay in Submitting Claims:
   • Avoid delays in notifying the Employer’s Representative of potential claims. Late submissions can result in the forfeiture of your rights to extensions or additional payments.
2. Neglecting Record-Keeping:
   • Do not neglect to keep detailed and accurate records of all events, communications, and costs related to the claim. Poor record-keeping can weaken your position and make it difficult to substantiate your claims.
3. Ignoring Contractual Obligations:
   • Do not ignore your ongoing contractual obligations while a dispute is being resolved. Continue to perform your duties under the contract to avoid further complications and potential penalties.
4. Being Uncooperative:
   • Avoid being uncooperative or obstructive during the Expert Determination process. Failing to provide requested information or attend hearings can negatively impact the outcome of the Determination.
5. Overlooking Mitigation Measures:
   • Do not overlook opportunities to mitigate the impact of the events leading to the claim. Taking reasonable steps to reduce delays or additional costs can strengthen your case and demonstrate good faith.

Don’t expect quick results from Expert Determination. Be prepared and ensure that your claims are fully particularised so that the Expert can do his / her job.