PANEL.
7.12.3
ARBITRATION. ALL DISPUTES ARISING OUT OF OR RELATING TO THIS
AGREEMENT NOT RESOLVED PURSUANT TO NON-BINDING MEDIATION WITHIN THIRTY (30) DAYS
OR AS THIS TIME PERIOD MAY BE EXTENDED BY WRITTEN AGREEMENT OF THE PARTIES SHALL
BE SETTLED FINALLY IN AN ARBITRATION CONDUCTED UNDER THE RULES OF ARBITRATION OF
THE INTERNATIONAL CHAMBER OF COMMERCE ("ICC") AND AS PROVIDED IN THIS SECTION
7.12.3.
(A)
THE ARBITRATION PROCEEDINGS SHALL BE CONDUCTED IN NEW YORK, NEW
YORK, U.S.A.
(B)
THE ARBITRATION PROCEEDINGS SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
(C)
THE LANGUAGE OF THE ARBITRATION PROCEEDINGS SHALL BE ENGLISH.
(D)
THE ARBITRAL TRIBUNAL SHALL CONSIST OF THREE (3) ARBITRATORS, ONE
(1) OF WHOM SHALL BE SELECTED BY SKT HOLDINGS, ONE (1) OF WHOM SHALL BE SELECTED
BY EARTHLINK, AND ONE (1) OF WHOM SHALL BE SELECTED BY THE OPERATING COMPANY.
(E)
THE INTERNATIONAL BAR ASSOCIATION'S RULES ON THE TAKING OF
EVIDENCE IN INTERNATIONAL COMMERCIAL ARBITRATION SHALL APPLY TOGETHER WITH THE
ICC RULES GOVERNING ANY SUBMISSION TO ARBITRATION INCORPORATED IN THIS
AGREEMENT.
(F)
EVERY AWARD SHALL BE BINDING ON EACH OF OPERATING COMPANY, SKT
HOLDINGS AND EARTHLINK. BY SUBMITTING THE DISPUTE TO ARBITRATION UNDER THE ICC
23
RULES, THE PARTIES UNDERTAKE TO CARRY OUT ANY AWARD WITHOUT DELAY AND SHALL BE
DEEMED TO HAVE WAIVED THEIR RIGHT TO ANY FORM OF RECOURSE INSOFAR AS SUCH WAIVER
CAN VALIDLY BE MADE.
(G)
THIS AGREEMENT TO ARBITRATE SHALL BE BINDING ON THE PARTIES AND
THEIR RESPECTIVE SUCCESSORS, ASSIGNS AND AFFILIATES.
(H)
THE PREVAILING PARTY IN ANY ARBITRATION PROCEEDING CONDUCTED
PURSUANT TO THIS AGREEMENT MAY RECOVER ITS REASONABLE FEES BOTH FOR LEGAL
REPRESENTATION AND RELATED COSTS IN ANY ACTION TO ENFORCE THIS AGREEMENT IN ANY
JUDICIAL OR ARBITRATION PROCEEDING.
(I)
THE PARTIES WAIVE ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY
DAMAGES AND AGREE THAT PUNITIVE OR EXEMPLARY DAMAGES ARE NOT WITHIN THE
CONTEMPLATION OF THIS AGREEMENT. NO ARBITRAL TRIBUNAL MAY ORDER AN AWARD
CONSISTING IN WHOLE OR IN PART OF PUNITIVE OR EXEMPLARY DAMAGES.
7.12.4
TOLLING OF STATUTES OF LIMITATION. ALL APPLICABLE STATUTES OF
LIMITATION AND DEFENSES BASED ON THE PASSAGE OF TIME SHALL BE TOLLED WHILE THE
PROCEDURES SPECIFIED IN SECTION 7.12 ARE PENDING. OPERATING COMPANY, SKT
HOLDINGS AND EARTHLINK SHALL TAKE SUCH ACTION, IF ANY, REQUIRED TO EFFECTUATE
SUCH TOLLING.
7.12.5
RIGHT TO INJUNCTIVE RELIEF BEFORE APPOINTMENT OF ARBITRATORS. WITH
RESPECT TO ANY VIOLATIONS OF THIS AGREEMENT THAT WOULD CAUSE OR MIGHT CAUSE
IRREPARABLE INJURY TO ANY ONE OF THE PARTIES TO THIS AGREEMENT (AND ANY TIME
PERIODS AND NOTICE PERIODS SPECIFIED THEREON), SUCH PARTY MAY, IN ADDITION TO
ANY OTHER RIGHTS UNDER THIS AGREEMENT OR ANY ANCILLARY AGREEMENT AND
NOTWITHSTANDING THE DISPUTE RESOLUTION PROCEDURES INCLUDING, PARTICULARLY, THE
MEDIATION PROVISIONS AND ARBITRATION AGREEMENT CONTAINED IN THIS SECTION 7.12
(AND ANY TIME PERIODS AND NOTICE PERIODS SPECIFIED THEREON), SEEK SPECIFIC
PERFORMANCE OF THIS AGREEMENT AND INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT
JURISDICTION AGAINST ANY ONGOING VIOLATION OF THIS AGREEMENT. PRIOR TO THE
APPOINTMENT OF THE ARBITRATORS