Drafting Expert Determination Clauses in Construction Contracts: Scope of Disputes, Qualifications, and Limitations
Recording of a 90-minute CLE video webinar with Q&A
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.
Outline
- Typical boilerplate provisions
- Types of disputes that need expert determinations
- Expert clauses
- Scope of the dispute to be resolved
- Qualifications of expert
- The time period for resolution
- The opinion of an expert: binding or not
- Role of courts in expert determinations
Benefits
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?
Faculty
Kenneth E. (Ken) Rubinstein
Director
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
Mr. Rubinstein is Co-Chair of the firm's Construction Law group, and a member of the firm's Litigation and Professional Liability groups. He regularly represents public and private clients, as well as insurance companies and their insureds, in complex commercial disputes, with an emphasis on matters involving construction issues and financial professionals. Mr. Rubenstein has practical industry experience in both the construction and financial services industries, having worked at a Manhattan construction management firm and at "Big 6" accounting firm, Arthur Andersen, LLP, before beginning his practice as a civil trial lawyer.
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Kevin P. Walsh
Shareholder
Brownstein Hyatt Farber Schreck
In his construction-focused practice, Mr. Walsh provides developers and construction professionals with a wide range of... | Read More
In his construction-focused practice, Mr. Walsh provides developers and construction professionals with a wide range of legal services, including contract drafting and negotiation; dispute avoidance and de-escalation; mediation, litigation and arbitration; and compliance with public procurement laws. Recent engagements include representing developers and contractors in disputes over defects, delays and payments; using mechanic’s lien rights to secure payment of amounts owed to general contractors and subcontractors; advising special districts concerning their compliance with public bidding requirements for public works projects; preparing a suite of custom form contracts; drafting and negotiating an intergovernmental agreement on behalf of a water and sanitation district; representing a private developer in a lawsuit predicated upon the performance of a purchase and sale agreement; representing the seller in a dispute over broker commissions; providing real-time advice to owner and contractor clients on active construction projects; and drafting contracts for all aspects of construction on private and public projects.
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