Party may refer the dispute to the Expert for determination in
accordance with clause 19.4.
19.4
DETERMINATION BY THE EXPERT
(A)
WHERE THIS AGREEMENT
REQUIRES A MATTER TO BE REFERRED TO OR RESOLVED BY THE EXPERT OR WHERE THE
PARTIES OTHERWISE AGREE TO REFER A MATTER TO THE EXPERT, THE MATTER WILL BE
DETERMINED BY THE EXPERT AND ADMINISTERED IN ACCORDANCE WITH THIS CLAUSE 19.4.
(B)
THE EXPERT MUST:
(I)
ACT AS AN EXPERT AND NOT
AS AN ARBITRATOR;
(II)
PROCEED IN ANY MANNER HE
OR SHE THINKS FIT WITHOUT BEING BOUND TO OBSERVE THE RULES OF EVIDENCE;
26
(III)
TAKE INTO CONSIDERATION ALL
DOCUMENTS, INFORMATION AND OTHER MATERIAL WHICH THE PARTIES GIVE THE EXPERT
WHICH THE EXPERT IN HIS OR HER ABSOLUTE DISCRETION, CONSIDERS RELEVANT TO THE
DETERMINATION OF THE DISPUTE;
(IV)
NOT BE EXPECTED OR REQUIRED TO
OBTAIN OR REFER TO ANY OTHER DOCUMENTS, INFORMATION OR MATERIAL BUT MAY DO SO IF
HE OR SHE SO WISHES;
(V)
ACT IN GOOD FAITH AND MAKE
HIS OR HER DECISION WITHIN 15 BUSINESS DAYS;
(VI)
GIVE HIS OR HER DETERMINATION
IN WRITING (INCLUDING A STATEMENT OF THE VALUE OF THE DETERMINATION) AND GIVE
WRITTEN REASONS FOR THE DETERMINATION.
(C)
THE EXPERT MAY, WITH PRIOR
WRITTEN APPROVAL FROM THE CONTRACTOR, THE ACCESS PROVIDER AND THE PRINCIPAL,
COMMISSION HIS OR HER OWN ADVISERS OR CONSULTANTS, INCLUDING LAWYERS,
ACCOUNTANTS, BANKERS, ENGINEERS, SURVEYORS, TRAFFIC CONSULTANTS, OR OTHER
TECHNICAL CONSULTANTS, TO PROVIDE INFORMATION TO ASSIST THE EXPERT IN HIS OR HER
DECISION.
(D)
THE EXPERT MUST APPOINT ANY
ADVISERS OR CONSULTANTS NOMINATED IN WRITING BY THE PRINCIPAL, THE ACCESS
PROVIDER AND THE CONTRACTOR TO PROVIDE INFORMATION TO ASSIST THE EXPERT IN HIS
OR HER DECISIONS.
(E)
THE PARTIES WILL INDEMNIFY
THE EXPERT FOR THE COST OF RETAINING THOSE ADVISERS OR CONSULTANTS.
(F)
THE CONTRACTOR AND THE
ACCESS PROVIDER MUST PROVIDE THE EXPERT WITH COPIES OF MINUTES OF MEETINGS AND
ALL REPORTS RELEVANT TO THE [
] WORK WITHIN [5] BUSINESS DAYS OF THEM BEING
PREPARED, AND ALL OTHER INFORMATION REQUIRED TO KEEP THE EXPERT INFORMED AND
ABLE TO CARRY OUT HIS OR HER FUNCTION UNDER THIS CLAUSE.
(G)
THE PRINCIPAL MAY PROVIDE
THE EXPERT WITH ANY RELEVANT INFORMATION IT CONSIDERS NECESSARY TO KEEP THE
EXPERT INFORMED AND ABLE TO CARRY OUT HIS OR HER FUNCTION UNDER THIS CLAUSE.
(H)
A COPY OF ALL INFORMATION
PROVIDED BY ONE PARTY UNDER CLAUSE 19.4(F) OR 19.4(G) MUST BE SENT TO THE OTHER
PARTIES.
(I)
THE DETERMINATION OF
THE EXPERT WILL BE FINAL AND BINDING ON EACH PARTY.
(J)
THE PRINCIPAL, THE
ACCESS PROVIDER AND THE CONTRACTOR WILL EACH PAY ONE-THIRD OF THE COSTS OF THE
EXPERT.
20.
FORCE MAJEURE
20.1
FORCE MAJEURE NOTICE
(A)
IF A PARTY TO THIS
AGREEMENT ALLEGES OR WISHES TO CLAIM THAT FORCE MAJEURE HAS OCCURRED IT MUST
GIVE THE OTHER PARTIES PROMPT WRITTEN NOTICE OF THE FORCE MAJEURE ONCE IT
BECOMES AWARE OF THE SAME AND THE OBLIGATIONS AFFECTED TOGETHER WITH FULL
PARTICULARS OF ALL RELEVANT MATTERS INCLUDING:
(I)
DETAILS OF THE