Resolving Contractual Disputes With 'An Expert Not An Arbitrator'

Author:Mr Richard Renck
Profession:Duane Morris LLP
 
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The Delaware courts have been asked several times in the last few years to interpret contracting parties' intent when they have relegated certain disputes to “an expert not an arbitrator” as a form of alternative dispute resolution. On January 29, 2019, the Court of Chancery issued the latest opinion on this topic in Ray Beyond Corp. v. Trimaran Fund Mgt., LLC, C.A. No. 2018-0497-KSJM., and reiterated that such language will be construed as limiting the ADR professional's jurisdiction to deciding “factual disputes within the decision maker's expertise.”

In this case, the decision maker was to be an independent accountant, and thus, the court found that the clause at issue was to delegate factual disputes regarding calculation disputes to that “expert” but that legal disputes were reserved for the courts to decide as judicial officers.

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