Drafting Expert Determination Clauses in Construction Contracts: Scope of Disputes, Qualifications, and Limitations

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Wednesday, April 28, 2021

Recorded event now available

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Course Materials

This CLE course will guide construction counsel in drafting tailored expert determination clauses in their agreements to reduce costs and increase enforceability. The panel will address the unique challenges created by construction disputes and the need for an independent expert clause that extends beyond boilerplate language. The panel will provide tools for structuring provisions that address the scope of the determination, what constitutes an expert, whether the determination is binding, and more.


Construction disputes often create a need for independent expert qualifications to resolve the issues. Boilerplate language in typical or standard construction contracts is not sufficiently specific to the particular construction project's circumstances.

Expert determinations may be used both within and outside of litigation, and the parties can determine in their contract whether the decision is binding or not. The use of alternative dispute resolution expert determinations has increased due to its flexibility compared to full-scale litigation in simpler procedures, expedited timing, and reduced costs.

Accurate clauses need to anticipate the issues that may arise on a project and address those issues about expert clauses. Picking and qualifying the expert must be detailed in the contract. Proper clauses will limit the scope of the dispute that can be resolved and the time period the expert has to decide.

Listen as our authoritative panel addresses the specifics of what expert determination clauses should and should not include and best practices in construction contract drafting to minimize costs and best support the project.



  1. Typical boilerplate provisions
  2. Types of disputes that need expert determinations
  3. Expert clauses
    1. Scope of the dispute to be resolved
    2. Qualifications of expert
    3. The time period for resolution
    4. The opinion of an expert: binding or not
    5. Role of courts in expert determinations


The panel will review these and other relevant topics:

  • How can a clause be accurately drafted to define the scope of the disputes to be resolved by expert determinations?
  • What qualifications should an expert possess, and how will they be selected?
  • How should an expert determination clause address time periods to resolve and verify the factual information?
  • What contractual expert determination mechanisms may better support the project and minimize costs?
  • When should parties avoid adopting generic boilerplate clauses and instead tailor expert determination processes to the project?


Rubinstein, Kenneth
Kenneth E. (Ken) Rubinstein

Preti Flaherty Beliveau & Pachios

Mr. Rubinstein is Co-Chair of the firm's Construction Law group, and a member of the firm's Litigation and...  |  Read More

Walsh, Kevin
Kevin P. Walsh

Brownstein Hyatt Farber Schreck

In his construction-focused practice, Mr. Walsh provides developers and construction professionals with a wide range of...  |  Read More

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