Further, at paragraph 16 of P.
Dasaratharama Reddy (supra), the distinction
between an expert determination and
arbitration between the parties has been spelt
out as per Russell, on Arbitration (21st Edn.)
in the following words:-
“16……Many cases have been fought
over whether a contract’s chosen
form of dispute resolution is
expert determination or
arbitration. This is a matter of
construction of the contract, which
involves an objective enquiry into
the intentions of the parties.
First, there are the express words
of the disputes clause. If specific
words such as ‘arbitrator’,
‘Arbitral Tribunal’, ‘arbitration’
or the formula ‘as an expert and
not as an arbitrator’ are used to
describe the manner in which the
dispute resolver is to act, they
are likely to be persuasive
although not always conclusive….
Where there is no express wording,
the court will refer to certain
guidelines. Of these, the most
important used to be, whether there
was an ‘issue’ between the parties
such as the value of an asset on
which they had not taken defined
positions, in which case the
procedure was held to be expert
determination; or a ‘formulated
dispute’ between the parties where
defined positions had been taken,
in which case the procedure was
held to be an arbitration. This
imprecise concept is still being
relied on. It is unsatisfactory
because some parties to contract
deliberately choose expert
determination for dispute
resolution. The next guideline is
the judicial function of an
Arbitral Tribunal as opposed to the
expertise of the expert…. An
Arbitral Tribunal arrives at its
decision on the evidence and
submissions of the parties and must
apply the law or if the parties
agree, on other consideration; an
expert, unless it is agreed
otherwise, makes his own enquiries,
applies his own expertise and
decides on his own expert
opinion….”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11474 OF 2014
(Arising Out of SLP (C) No. 13982 of 2007)
International Amusement Limited
Vs.
India Trade Promotion
Organisation & Anr
Citation:(2015) 12 SCC677
