By agreeing on an expert's opinion, parties to a contract can have individual points of dispute clarified in a binding manner by a neutral third party. These can be of a technical, nautical, legal or economic nature, among others. The results of the expert's report can only be reviewed in court to a limited extent.
The prerequisite for an expert's opinion with binding effect is a respective agreement between the parties.
In an expert's opinion, the expert answers a clearly defined, abstract question of detail. This question usually relates to a technical problem (for example, from the field of shipbuilding or ship repair), occasionally also to a nautical or legal problem. The law (§ 317 BGB) provides that the parties may leave the determination of the performance or a delimited part thereof to a third party - the expert. In contrast, the arbitral tribunal decides an entire legal dispute in an arbitral award, i.e. whether or not, for example, the claim asserted by the arbitration claimant exists.
An expert is usually instructed only when the issue to be resolved has arisen and is to be answered as quickly as possible. In contrast, adjudicators are commissioned at the beginning of a project; they follow it so that they can then bring about a solution when a (technical) problem arises.
In principle, yes. The expert's opinion is (only) not binding on the parties if it is "manifestly unreasonable" (section 319 BGB).
Experts' opinions are often agreed in the following contracts, for example:
- in contracts for work and services (e.g. shipbuilding contracts): Clarification of unforeseen technical problems arising during the construction period; acceptability of a ship; determination of defects; reduction amounts; amount of rectification costs;
- in shareholders' agreements: determination of the value of the company; determination of the profit; determination of the value of shareholdings;
- in insurance contracts: Legal opinions on coverage issues
Expert's Opinion Clauses
An expert's opinion clause should be based on the individual purpose of the contract and the possible conflicts between the contracting parties; therefore, there can be no generally valid recommended wording. In a shipbuilding contract, for example, the following wording would be possible:
"If during the construction period, the acceptance of construction or during the warranty period differences of opinion arise between the contracting parties as to whether and which defects exist, an expert's opinion procedure shall be conducted in accordance with the rules of the German Maritime Arbitration Association for experts' opinions. The findings of the expert on the question of the existence or non-existence of the defects and their causes shall be binding on the parties".
Expert's Opionion Rules
Either party to a contract may notify the other party in writing by letter, fax or e-mail of its intention to appoint an expert in accordance with the provisions of these Rules as in force at the time of the initiation of the proceedings.
§ 2 Subject Matter of the Expert Opinion
All disputed facts or legal questions arising out of or in connection with the underlying legal relationship may be decided by an expert's opinion in accordance with these Rules.
§ 3. Appointment of the Expert
1. The expert shall be appointed as a single expert by agreement of the parties.
2. If the parties are unable to agree on an expert within three working days of receipt of the notification in accordance with § 1, the appointment of the expert shall be made at the request of one of the parties by the Chairman of the GMAA Executive Board or his deputy. The request shall briefly describe the subject matter of the dispute to enable the appointment of a suitable expert.
3. The Chairman of the GMAA Executive Board or his deputy shall appoint the expert without delay.
The expert opinion procedure shall be initiated as soon as the expert accepts the joint appointment by the parties or the appointment by the Chairman of the GMAA Board or his deputy and the question(s) to be decided by expert opinion procedure have been submitted to the expert by at least one party.
1. The expert shall be bound to impartiality.
2.The expert shall not accept the office if he/she is aware of circumstances that justify doubts as to his/her impartiality or suitability, if he/she does not meet the requirements agreed between the parties or if he/she cannot ensure that the proceedings will be conducted expeditiously.
Any information received by the expert in the performance of his or her duties shall be treated confidentially by him or her. This shall not apply in the case of subsequent proceedings before state courts or arbitral tribunals in which the expert is summoned as a witness.
The expert shall not accept appointments or appointments as arbitrator, conciliator or mediator in the same matter.
Each party shall be entitled to withdraw from the expert opinion proceedings until the initiation of the proceedings in accordance with § 4 of these Rules. After this point in time, the withdrawal shall be subject to the consent of the other party to be communicated by letter, fax or e-mail.
1. The expert a shall disclose to the parties at any stage of the proceedings any circumstances which might justify his challenge. This applies in particular to the circumstances referred to in § 5 number 2.
2. A party may challenge an expert if circumstances become known at or after the initiation of the proceedings under § 4 of these Rules which would justify his challenge. This applies in particular to the circumstances mentioned in § 5 number 2.
3. If the challenge is disputed between the parties, the Chairman of the Executive Board of the GMAA or his deputy shall decide on it at the request of one of the parties.
4. In the event of the expert's removal due to circumstances relating to his person, any advance payments already received shall be refunded by him.
1. The place for the conduct of the procedure shall be determined by the parties. If the parties do not agree on a place, the expert shall decide on the place, taking into account the interests of the parties. If no other place is considered suitable, Hamburg shall be the place of the proceedings.
2. After his appointment, the expert shall set time limits for the parties to submit their respective submissions. After receipt thereof, the expert shall decide as soon as possible.
3. The expert shall decide in his reasonable discretion whether further information with regard to the issue(s) to be decided, a joint meeting or a site visit is necessary.
4. The expert shall make the decision on the merits of the case in his or her reasonable discretion.
5. The expert shall send a signed copy of his or her decision to the parties by fax, e-mail or post. The decision shall contain a summary of the reasons for the decision.
1. The decision of the expert shall be binding on the parties and in principle unappealable.
2. The decision may be replaced by a judgement of the competent court if it is manifestly inequitable, in particular manifestly incorrect.
3. The parties may agree to waive their right to appeal.
§ 12 Publication of the Decision
1. Each party shall be free to use the arbitration award in relation to the legal relationship underlying the proceedings.
2. If and in what form a decision is otherwise published is subject to the agreement of the parties.
§ 13 Fees of the expert
1. The expert's fees are freely negotiable.
2. Necessary expenses as well as the respective value added tax to be levied shall be reimbursed to the arbitrator with the fees pursuant to no. 1.
3. The expert may request security from the parties for the anticipated remuneration in accordance with nos. 1. and 2. or a corresponding advance payment.
4. The remuneration of the expert shall be shared equally by the parties. However, they
shall be jointly and severally liable to the expert .
5. Unless otherwise agreed, the remuneration of the expert shall be payable at the latest on the fifth working day after delivery of his decision.
The liability of the arbitrator for his decision is excluded, unless he has deliberately breached his duties. The same applies to the Chairman of the Executive Board and his representative for their cooperation in accordance with § 3 of these Rules.
The expert opinion procedure as well as the legal relationship between the parties on the one hand and the expert on the other hand shall be governed by German law.
Costs of the Expert
The GMAA does not provide a schedule of fees for experts. The remuneration of the expert is to be freely negotiated between the parties on the one hand and the expert on the other hand; it should be agreed in writing in advance.