Expert determination

According to the standard agreements applying to the industry, clients and contractors must provide a guarantee to each other for the payment of the contract sum and the performance of the work.

At the request of a party, the Arbitration Board may appoint one or more specialist experts, who should in principle have a technical background, to decide on payment of the guarantees provided. In cases filed in accordance with AB92, the specialist expert may also decide on the justification of withholding payments or offsetting amounts in payments. The Arbitration Board will in principle accept if the parties have agreed that the rules are to apply to other disputes.

The decisions are interim measures that are not binding on the parties if the parties have agreed on AB92. A decision may not be invoked in any subsequently instituted arbitral proceedings. However, the guarantor named in a guarantee or bond that refers to a construction contract drafted on the basis of the standard agreement documents is obliged under those documents to pay the guarantee or bond amount if so decided by expert determination.

Security for all expenses ensuing from such determination must be provided immediately, which also means that the Arbitration Board can initiate proceedings within a very few days unless procedural or other problems arise in the matter.

Based on the request received, the secretariat of the Arbitration Board determines whether all formal requirements are met, including compliance with the deadlines set out in the standard documents.

Rules

The standard agreements in this field include AB92, AB18, ABT93 and AB Consumer. The Arbitration Board has adopted its own rules on expert decision-making procedures in the field of building and construction. Cases brought before the Arbitration Board under AB92, ABT93 and AB Consumer will be processed in accordance with the Rules on expert determination concerning security provided, etc, at the Danish Building and Construction Arbitration Board, while cases brought before the Board in pursuance of AB18 and ABT18 will be processed in accordance with the 2018 Rules on security provided.

A request for expert determination or a decision on security provided, as well as any associated documents, must be sent to the Arbitration Board electronically by email. However, any documents in special formats must be sent by ordinary post.

The cases are filed as G-cases at the Arbitration Board
Rules on decisions regarding security provided 2018
Rules on experts determination 1993

Decision on security provided according to AB18

AB18 contains provisions on the appointment of an expert who can make decisions on payment, downward adjustment and discontinuation of security provided. In principle, the Arbitration Board accepts the rules also being applied to other disputes if the parties agree, and a case on expert determination under AB92 may be considered in accordance with the rules on security set out in AB18 if the parties agree.

AB18 and the Arbitration Board’s 2018 Rules on decisions regarding security provided contain some formal requirements that must be met before a case on a decision regarding security provided can be commenced and processed by the Arbitration Board. The Arbitration Board Secretariat will check and determine whether all formal requirements are met.

Like an arbitral award, a decision regarding security provided under AB18 is binding on the parties to the case. The decision may be brought before an arbitral tribunal within eight weeks after it was announced. The arbitral tribunal will then make a final decision in the dispute. If the decision is not brought before an arbitral tribunal, the decision will be considered to be final.