Arbitrator versus Independent Expert

What are the main differences between the roles of the Arbitrator and the Independent Expert?

Arbitrator

Independent Expert

Governed by the Arbitration Acts

Governed by the Common Law

Can only make decisions based on parties’ submissions

Not limited to parties’ submissions

Can make appropriate investigations and use own expert judgement

Arbitrator has discretion on costs

Expert is guided by the lease

Can make an order for discovery

Discovery not within power

Who decides whether the independent third party is to act as arbitrator or independent expert?

The rent review provisions in the lease will usually specify the capacity in which the independent third party is to act. Some leases specify that it is the landlord who has the right to decide whether the independent third party is to act as arbitrator of independent expert.

What happens when the arbitrator or independent expert has reached a decision?

The arbitrator’s award or the independent expert’s determination is usually released after his or her fees have been paid. The arbitrator has complete freedom to decide how the fees and costs are to be apportioned between the parties. However, in the case of the independent expert, fees are usually apportioned equally, unless the lease dictates otherwise.

When does the new rent become effective?

Once the award or determination is been issued, the revised rent will become payable immediately and will be effective from the review date. Often, leases contain a provision for the payment of interest on arrears of rent that will have built up from the review date to the date of settlement.