The Delaware courts have been asked several times in the last
few years to interpret contracting parties’ intent when they
have relegated certain disputes to “an expert not an
arbitrator” as a form of alternative dispute resolution. On
January 29, 2019, the Court of Chancery issued the latest opinion
on this topic in Ray Beyond Corp. v. Trimaran Fund Mgt.,
LLC, C.A. No. 2018-0497-KSJM., and reiterated that such
language will be construed as limiting the ADR professional’s
jurisdiction to deciding “factual disputes within the
decision maker’s expertise.”
In this case, the decision maker was to be an independent
accountant, and thus, the court found that the clause at issue was
to delegate factual disputes regarding calculation disputes to that
“expert” but that legal disputes were reserved for the
courts to decide as judicial officers.
