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.