Secondly, there was an express clause in the development agreement providing that no modification, alteration or waiver of the development agreement's provisions would be effective unless in writing and signed. The University had asserted that, on the facts, there had been such a modification, alteration or waiver. The judge rejected that contention and found that there had not.
Thirdly, ZVI had impliedly agreed that the expert would have jurisdiction under the expert determination clause to decide the points in dispute between the parties. This section appears under a heading entitled "Submission to Expert Jurisdiction" and the judge held (after referring to the Court of Appeal in Rhodia Chirex Ltd v Laker Vent Engineering Ltd) that there was no issue of principle that exempts expert determination clauses from a doctrine of submission to the jurisdiction. It was suggested that as expert determination is a matter of contract, it must follow that a so-called "submission to the jurisdiction" must also be a matter of contract (or possibly some kind of estoppel). The judge made clear in the words of his own decision that he was applying contractual principles:
" ... this is a course of conduct from which it may be inferred that ZVI impliedly agreed that the expert would have jurisdiction under [the expert determination clause] to decide the points in dispute between the parties."
In effect, therefore, the judge found the existence of the expert determination clause the equivalent to an ad hoe arbitration agreement. Such an ad hoe (new) agreement obviates any complications arising from the clause expressly limiting variation of the development agreement.
Fourthly, the judge also found that if there had not been an agreement to submit, there was an estoppel by convention preventing ZVI from asserting that the matters in dispute fell outside the scope of the original expert determination clause.
Fifthly, the judge found that the same facts that gave rise to the estoppel by convention gave rise to a waiver by ZVI of its right to object. This appears to be based on a subsidiary part of Akenhead J's judgment in Aedifice Partnership Ltd v Shah dealing with adjudication. It is suggested that waiver is not really an appropriate concept: a lack of jurisdiction by the expert determinator does not provide a party with a right to object and the absence of objection does not somehow widen the expert determination clause. He either has jurisdiction from the original (or ad hoe) contract (and a party is estopped from denying otherwise by a convention) or he has no jurisdiction.
Finally, the University had tried to argue that the decision of the US court purporting to confirm the expert's jurisdiction created an issue estoppel but that failed on the facts.
Thoughts for the construction industry
Plainly expert determination has a place and can be very usefully employed in certain areas where technical and expert matters require a swift decision, or where the parties want to take their chances on a process that will necessarily be less thorough than litigation or most arbitrations.
But the drafting of such clauses requires care and recommending such a clause to a client may benefit from being undertaken in consultation with dispute resolution lawyers. In particular, the distinction between legal issues and expert issues as well as