I OR ANNEX II (A
"MEASUREMENT DISPUTE"), THE PARTIES HEREBY AGREE THAT SUCH MEASUREMENT DISPUTE
SHALL BE RESOLVED BY AN EXPERT SELECTED AS PROVIDED IN THIS SECTION 20.2.
THE
EXPERT IS NOT AN ARBITRATOR OF THE MEASUREMENT DISPUTE AND SHALL NOT BE DEEMED
TO BE ACTING IN AN ARBITRAL CAPACITY.
THE PARTY DESIRING AN EXPERT
DETERMINATION SHALL GIVE THE OTHER PARTY TO THE MEASUREMENT DISPUTE NOTICE OF
THE REQUEST FOR SUCH DETERMINATION.
IF THE PARTIES TO THE MEASUREMENT DISPUTE
ARE UNABLE TO AGREE UPON AN EXPERT WITHIN TEN (10) DAYS AFTER RECEIPT OF THE
NOTICE OF REQUEST FOR AN EXPERT DETERMINATION, THEN, UPON THE REQUEST OF ANY OF
THE PARTIES TO THE MEASUREMENT DISPUTE, THE INTERNATIONAL CENTRE FOR EXPERTISE
OF THE INTERNATIONAL CHAMBER OF COMMERCE SHALL APPOINT SUCH EXPERT AND SHALL
ADMINISTER SUCH EXPERT DETERMINATION THROUGH THE ICC'S RULES FOR EXPERTISE.
THE
EXPERT SHALL BE AND REMAIN AT ALL TIMES WHOLLY IMPARTIAL, AND, ONCE APPOINTED,
THE EXPERT SHALL HAVE NO EX PARTE COMMUNICATIONS WITH ANY OF THE PARTIES TO THE
MEASUREMENT DISPUTE CONCERNING THE EXPERT DETERMINATION OR THE UNDERLYING
MEASUREMENT DISPUTE.
THE PARTIES TO THE MEASUREMENT DISPUTE SHALL COOPERATE
FULLY IN THE EXPEDITIOUS CONDUCT OF SUCH EXPERT DETERMINATION AND PROVIDE THE
EXPERT WITH ACCESS TO ALL FACILITIES, BOOKS, RECORDS, DOCUMENTS, INFORMATION AND
PERSONNEL NECESSARY TO MAKE A FULLY INFORMED DECISION IN AN EXPEDITIOUS MANNER.
BEFORE ISSUING A FINAL DECISION, THE EXPERT SHALL ISSUE A DRAFT REPORT AND ALLOW
THE PARTIES TO THE MEASUREMENT DISPUTE TO COMMENT ON IT.
THE EXPERT SHALL
ENDEAVOR TO RESOLVE THE MEASUREMENT DISPUTE WITHIN THIRTY (30) DAYS (BUT NO
LATER THAN SIXTY (60) DAYS) AFTER HIS APPOINTMENT, TAKING INTO ACCOUNT THE
CIRCUMSTANCES REQUIRING AN EXPEDITIOUS RESOLUTION OF THE MATTER IN DISPUTE.
(B)
FINAL AND BINDING. THE EXPERT'S DECISION
SHALL BE FINAL AND BINDING ON THE PARTIES TO THE MEASUREMENT DISPUTE UNLESS
CHALLENGED IN AN ARBITRATION PURSUANT TO SECTION 20.1 WITHIN THIRTY (30) DAYS OF
THE DATE THE EXPERT'S DECISION.
IF CHALLENGED, (I) THE DECISION SHALL REMAIN
BINDING AND BE IMPLEMENTED UNLESS AND UNTIL FINALLY REPLACED BY AN AWARD OF THE
ARBITRATORS; (II) THE DECISION SHALL BE ENTITLED TO A REBUTTABLE PRESUMPTION OF
CORRECTNESS; AND (III) THE EXPERT SHALL NOT BE APPOINTED IN THE ARBITRATION AS
AN ARBITRATOR OR AS ADVISOR TO EITHER PARTY WITHOUT THE WRITTEN CONSENT OF BOTH
PARTIES.
(C)
ARBITRATION OF EXPERT DETERMINATION.
IN
THE EVENT THAT A PARTY REQUESTS EXPERT DETERMINATION FOR A MEASUREMENT DISPUTE
WHICH RAISES ISSUES THAT REQUIRE DETERMINATION OF OTHER MATTERS IN ADDITION TO
CORRECT MEASUREMENT UNDER ANNEX I OR ANNEX II, THEN EITHER PARTY MAY ELECT TO
REFER THE ENTIRE MEASUREMENT DISPUTE FOR ARBITRATION UNDER SECTION 20.1.
IN
SUCH CASE, THE ARBITRATORS SHALL BE COMPETENT TO MAKE ANY MEASUREMENT
DETERMINATION THAT IS PART OF A DISPUTE.
AN EXPERT DETERMINATION NOT REFERRED
TO ARBITRATION SHALL PROCEED AND SHALL NOT BE STAYED DURING THE PENDENCY OF AN
ARBITRATION.
59
ARTICLE 21
CONFIDENTIALITY
21.1
CONFIDENTIALITY OBLIGATION
Neither this Agreement nor information or documents that come into the
possession of a Party