The Joint Chambers on Contractual Expert Determination: clarifying the nature of the institution and its effects on limitation periods

Key takeaways

1. Contractual Expert Determination is not automatically equivalent to informal arbitration

The Joint Chambers clarified that contractual expert determination cannot automatically be classified as informal arbitration (arbitrato irrituale).

The decisive factor in distinguishing the two mechanisms is whether the parties intended to waive access to ordinary judicial protection. Only where the contractual framework expressly and unequivocally demonstrates the parties’ intention to entrust the definitive resolution of a dispute to a third party may the clause be characterised as informal arbitration.

Absent such a waiver, contractual expert determination retains its autonomous nature as a purely contractual mechanism aimed at the technical assessment of facts or circumstances relevant to the contractual relationship.

2. The central role of judicial protection

The Court further held that the existence of an expert determination procedure does not, in itself, preclude recourse to the ordinary courts.

Parties therefore remain free to initiate judicial proceedings even where a contractual expert determination clause is in place. Failure to initiate or complete the procedure may constitute a breach of contractual obligations, but it does not render a judicial claim inadmissible.

3. The effect of invoking the expert procedure on limitation periods

One of the most innovative aspects of the judgment concerns the relationship between contractual expert determination and statutory limitation periods.

According to the Joint Chambers, a request to commence the expert determination procedure constitutes an exercise of the claimant’s right and therefore interrupts the running of the applicable limitation period.

This effect is not exhausted by the initial request. Rather, it continues throughout the entire expert determination process, through the successive activities carried out by the parties and the appointed experts.

The Court emphasised that this mechanism should not be regarded as a mere suspension of the limitation period. Instead, it amounts to a form of continuous interruption that is renewed throughout the duration of the expert proceedings, until their completion or until the expiry of any deadline contractually agreed by the parties.

The Supreme Court considered this interpretation to provide stronger protection for policyholders while addressing several practical uncertainties that have emerged in the handling of insurance claims.

4. Implications for insurance policy drafting

The judgment calls for careful reconsideration of the wording of contractual expert determination clauses in insurance policies.

Insurers will need to assess existing clauses to determine whether they clearly express an intention to confer an arbitral nature upon the procedure or whether they should instead be interpreted as mechanisms intended solely for technical assessment.

Greater precision in drafting will help reduce future interpretative disputes and enhance legal certainty in contractual relationships.

The Joint Chambers’ decision represents a significant turning point in the regulation of contractual expert determination.

On the one hand, the Court definitively confirms the autonomy of the institution from informal arbitration, except where there is an explicit waiver of access to ordinary courts. On the other hand, it introduces an innovative approach to limitation periods by recognising the expert determination procedure as having a continuously interruptive effect.

The judgment strengthens legal certainty in a field often characterised by significant litigation and provides insurance market participants with clearer interpretative criteria for both claims handling and policy drafting.