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 the agreement of the parties.

An expert appraisal procedure may be commenced to secure evidence or to clarify various issues so that the parties can either find a solution to the problems themselves or perhaps decide to subsequently commence arbitral proceedings. Sometimes a need for expert appraisal arises during the hearing of an arbitral case.

If the Arbitration Board is used for this purpose, the rules and regulations of the board are applied. The provisions on expert appraisal set out in the Danish Administration of Justice Act thus do not apply, but the Arbitration Board applies criteria which to a great extent resemble those set out in the Act. This is reflected in practice and also, in cases subject to AB18, in the 2018 Expert Appraisal Rules.

In its selection of expert appraisers the Arbitration Board draws upon a long-standing network of competent professionals throughout Denmark, which is continuously maintained and developed. In addition, the Arbitration Board seeks 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 assignment, 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. In specific cases the Board investigates whether there are any issues of impartiality. The parties to the case should state whether a specific profile and/or skill is desirable. In principle, the parties are allowed to name a specific expert, but the ultimate appointment of the expert or experts lies with the Arbitration Board. The Board also considers any objections to an expert’s qualifications or competence before the expert’s appointment is announced and may retain the expert in question if the objections are not accommodated.

The parties may jointly name a specific expert appraiser, but the ultimate appointment is again made by the Arbitration Board.

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. The expert appraiser will endeavour to find a date that suits all parties involved but, if this proves difficult, the expert appraiser may give the parties a choice between two dates and will then decide on one of those two options as the actual time and date of the meeting.

Information in the case, questions to the expert and any documents relating to the case must be sent to the Secretariat, which will then arrange for their submission to the expert appraiser 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 and the judge’s decision will replace that of the Arbitration Board. If expert appraisal is part of an arbitral case, the presiding arbitrator will make the decision as part of the general consideration of the case.

Once the appraisal has been carried out, the expert prepares minutes, an expert opinion report, a progress report or a supplementary declaration. The Arbitration Board accepts the expert sending such reports or declarations direct to the parties provided a copy is sent to the Secretariat. In such a scenario the expert must have made sure that the deposit paid will cover the costs of the case. The parties should not expect to receive the expert 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 relevant parties.

Matters of urgency

A request for expert appraisal may state whether the appraisal should preferably be conducted as a matter of urgency. In connection with progress reports, bankruptcy, suspension of payments, etc, expert appraisal may take place at very short notice, often with only one day’s notice. In such special circumstances the parties may be interested in securing evidence of conditions at a building or construction site. It will then be possible to resume work very quickly, and the parties will not later be in doubt as to the conditions at the time in question.

If the request does not concern a progress report, bankruptcy or suspension of payments, the Arbitration Board will assess whether a motivated request for treating a case as a matter of urgency should be accommodated, including whether an inspection should be carried out, whereas disagreement concerning questions, etc will be resolved later. Unless otherwise decided, an expert appraiser will usually be allowed to see the questions asked, even if they are not the final questions. There may also be reasons why an expert appraiser is not allowed to see documents before a disagreement between the parties about this has been resolved.

Rules and guidelines

The standard agreements are AB92, AB18, ABT93, ABT18, ABR89, ABR18, AB Abridged and ABR Abridged. The Arbitration Board has adopted its own rules on expert appraisal in relation to building and construction works. Cases brought before the Arbitration Board under AB92, AB18, ABT93 and ABR89 are considered in accordance with the ‘Rules for appointment of expert appraisers at the Danish Building and Construction Arbitration Board’ (VBA Expert Appraisal Rules 2008), while cases brought before the Board under AB18, ABT18, ABR18, AB Abridged and ABR Abridged will be considered in accordance with the 2018 Expert Appraisal Rules.

A request for expert appraisal, together with any appurtenant documents, must be sent electronically to the Arbitration Board by email. However, documents in special formats must be sent by ordinary surface mail. General practice is that the Arbitration Board requires the questions to the expert appraiser to be sent in a separate document and not as part of a long email thread and/or that the questions be stated to be true and accurate.

The Secretariat has some internal guidelines as to who can act as an expert appraiser under the auspices of the Arbitration Board and concerning appointment in specific cases; see below.

The expert appraisal guidelines below are the outcome of experience gained from the many courses and meetings held by the Danish Expert Appraiser Society 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.

A memorandum of 21 December 2016 on practices relating to expert appraisal, technical arbitrators and the setting of case dates is available.

Not only must the skills and competences of expert appraisers be excellent, it is also important that the processes are adequate. For that reason the Arbitration Board has prepared a checklist for expert appraisers as a supplement to the rules and guidelines otherwise used by expert appraisers.Expert appraisal 2018

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 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 Arbitration 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 Arbitration 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 Arbitration 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.

However, on request, the Arbitration Board will advise the expert appraiser on matters relating to procedures and the tasks to be performed by the expert.