Expert appraisal arranged by the Arbitration Board

If requested to do so, the Arbitration Board can appoint an expert appraiser to provide a professional and technical assessment of defects and shortcomings in building and construction work in progress or delivered. The parties may have agreed in advance that the Arbitration Board is to handle the appraisal procedure, primarily using the AB system (a set of standard agreements governing the relationship between the parties to building and construction projects), or the parties may agree to use the Arbitration Board once a dispute arises. Use of the Arbitration Board thus requires that the parties agree to do so.

An expert appraisal helps clarify various issues so that the parties can either find a solution to the problems themselves or perhaps decide to institute arbitration proceedings. Sometimes a need for expert appraisal arises during the hearing of an arbitration case.

If the Arbitration Board is used for this purpose, the rules and regulations of the board are applied. The new provisions on expert appraisal set out in the Danish Administration of Justice Act are therefore not applied, but the board is considering how to adjust its rules and regulations to reflect experience gained in the ordinary courts of law. As regards the parties’ opportunities to ask questions and the procedures applicable in that respect, the Arbitration Board is maintaining its current rules and practices. The criteria for dismissing questions as set out in section 197(2) of the Danish Administration of Justice Act are by and large consistent with the practices of the Arbitration Board.

In order to find the right match between the expert and the problem to be considered, the board draws upon a long-standing network of competent professionals throughout Denmark, which is continually maintained and developed. In addition, the Arbitration Board seeks out new experts in specific professional areas of a relatively rare nature.

The Arbitration Board assesses on a case-by-case basis whether an expert is suitable for the job, focusing on the expert’s professional competence and experience and the nature of the subject matter to be appraised. Geographical location is also taken into account. The parties may agree on naming a specific expert, but the ultimate decision on the appointment of the expert lies with the Arbitration Board. The parties to the case are consulted before the appointment, and they are entitled to raise objections based on the expert’s technical qualifications and possible lack of impartiality. The board will in each specific case investigate whether an expert appraiser is disqualified.

Once the expert appraiser has been appointed, he or she invites the parties to attend the actual appraisal. The parties may contact the expert appraiser directly in matters regarding dates, times, etc, but if they wish information to be presented in the hearing of the case, such information has to be distributed through the Secretariat of the Arbitration Board. The expert appraiser will endeavour to find a date that suits all parties involved, but if it proves difficult to find a date the expert may give the parties a choice between two dates and will then decide on one of the two options as the actual time and date of the meeting.

Questions to the expert appraiser and any documents relating to the questions must be sent to the Secretariat, which will then arrange for their submission to the expert either when the parties have reached agreement on this or when the Arbitration Board – if appropriate with the assistance of a legal arbitrator – has decided whether the questions may be asked or not. The Arbitration Board also helps manage deadlines in conformity with applicable rules and regulations and may make decisions in matters of dispute relating to expert appraisal in order to ensure the progress of the proceedings. It may be agreed that the resolution of a dispute must be undertaken by a judge in a court of law, but this will take place in return for payment. If the expert appraisal is part of an arbitration case, the presiding arbitrator will make the decision as part of the general consideration of the case.

Questions to the expert appraiser and any appurtenant documents must be emailed to the Arbitration Board. The Arbitration Board will only request forwarding of the material by ordinary mail if the material is extensive, if special drawings are involved, etc. In such cases, the material must be sent in duplicate: one copy will be placed in the case file kept by the Secretariat and the other will be sent to the expert. If more than one expert has been appointed the required number of copies will be increased so that each expert will receive a copy of the material.

Once the appraisal has been carried out, the expert prepares a report, a progress report or a supplementary declaration. The Arbitration Board accepts that the expert sends such reports or declarations direct to the parties provided a copy is sent to the Secretariat. In such a scenario the expert will have made sure that the deposit paid will cover the costs of the case. The parties should not expect to receive the report until the amount required has been deposited with the Secretariat. The reports or declarations may also be sent to the Secretariat, which will then forward them to the parties.

The request for an expert appraisal may state how quickly the expert’s appraisal should preferably be conducted. In connection with, for example, progress reports, liquidation procedures, suspension of payments, etc, the expert assessment will be conducted at very short notice, typically within a day. In such special cases the parties may be interested in securing evidence of the situation at the construction site. The work may then be resumed quickly, and the parties will avoid any later doubt about the situation at the time in question.

In matters not relating to a progress report, liquidation procedures or suspension of payments, the Arbitration Board will determine whether a request for a speedy expert appraisal procedure should be granted or not.

Rules and regulations

The Arbitration Board adopted rules for the appointment of expert appraisers in 2008. Rule 17 of the Rules of Arbitration contains provisions on expert appraisal in connection with arbitration cases.

The expert appraisal guidelines below are the outcome of experience gained from the many courses and meetings held by IDA Expert Arbitrators and the Arbitration Board as well as the numerous questions to experts and expert reports that the Law and Opinions Committee of the Danish Association of Consulting Engineers have considered.

Expert appraisal cases in the Arbitration Board are referred to as A-cases, while cases in which the board proposes an expert for appraisal at the ordinary courts of law are referred to as B-cases.

Regler om syn og skøn 2008

Regler for voldgiftsbehandling 2010

Vejledning for syns- og skønsmænd

Vejledning for syn og skøn i praksis

Expert appraisal in the ordinary courts of law

The Arbitration Board proposes experts for participation in proceedings in the ordinary courts of law as set out in Part 19 of the Danish Administration of Justice Act. According to the provisions of the Administration of Justice Act, a court of law must agree to the appointment of an expert. The legal counsel of the party requesting expert appraisal must contact the Arbitration Board to obtain a proposal for an expert appraiser. The board does not have a specific set of rules in this respect, but the Arbitration Board Statutes include a description of such an assignment.

In order to make a decision, the Arbitration Board requires that the legal counsel’s request includes a brief description of the matter to be considered as well as the questions for the expert. The board does not need copies of other documents in the case. If it proves necessary, the Arbitration Board may request additional information. The request, the questions and any supplementary material may be submitted by email to the Arbitration Board as electronic documents.

The board will only propose an expert appraiser, and the court of law may normally turn down the expert proposed after having consulted the parties to the case if the expert in question is not deemed to be competent or proves to be disqualified. In such a case, the board will propose another expert free of charge.

After having proposed an expert, the board will take no further action, as contact will have been established between the legal counsel and the expert. Documents in the case will subsequently be sent directly to the expert and others by the parties to the case. All work relating to the case will then be conducted by the court of law in conformity with the provisions of the Danish Administration of Justice Act. This also means that the Arbitration Board will not offer any assistance in relation to the proceedings such as obtaining a time schedule and cost estimates from the expert appraiser proposed.