AN AWARD UNDER THE
FEDERAL ARBITRATION ACT AND FINAL AND NONAPPEALABLE TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, AND JUDGMENT THEREON MAY BE ENTERED IN A COURT OF
COMPETENT JURISDICTION AND ENFORCED BY ANY PARTY AS A FINAL JUDGMENT OF SUCH
COURT.
(B)
ANY DISPUTE THAT IS NOT RESOLVED PURSUANT TO
OTHER MUTUALLY AGREED PROCEDURES AND RULES PURSUANT TO SECTION 17.1(A) (OTHER
THAN THOSE RELATING TO THE EXISTENCE OF TITLE DEFECTS OR THE TITLE DEFECT
AMOUNTS ATTRIBUTABLE THERETO, OR ENVIRONMENTAL DEFECTS, OR THE ENVIRONMENTAL
DEFECT VALUE ATTRIBUTABLE THERETO, AS APPLICABLE, WHICH SHALL BE RESOLVED IN
ACCORDANCE WITH THE PROCEDURES SET FORTH IN SECTION 17.1(C)) SHALL BE SETTLED
EXCLUSIVELY AND FINALLY BY ARBITRATION IN ACCORDANCE WITH THE PROCEDURES SET
FORTH IN THIS SECTION 17.1(B).
41
(I)
SUCH ARBITRATION SHALL BE CONDUCTED
PURSUANT TO THE FEDERAL ARBITRATION ACT, EXCEPT AS EXPRESSLY PROVIDED OTHERWISE
IN THIS AGREEMENT.
THE VALIDITY, CONSTRUCTION, AND INTERPRETATION OF THIS
SECTION 17.1(B), AND ALL PROCEDURAL ASPECTS OF THE ARBITRATION CONDUCTED
PURSUANT HERETO, INCLUDING THE DETERMINATION OF THE ISSUES THAT ARE SUBJECT TO
ARBITRATION (I.E., ARBITRABILITY), THE SCOPE OF THE ARBITRABLE ISSUES,
ALLEGATIONS OF "FRAUD IN THE INDUCEMENT" TO ENTER INTO THIS AGREEMENT OR THIS
ARBITRATION PROVISION, ALLEGATIONS OF WAIVER, LACHES, DELAY OR OTHER DEFENSES TO
ARBITRABILITY, AND THE RULES GOVERNING THE CONDUCT OF THE ARBITRATION (INCLUDING
THE TIME FOR FILING AN ANSWER, THE TIME FOR THE FILING OF COUNTERCLAIMS, THE
TIMES FOR AMENDING THE PLEADINGS, THE SPECIFICITY OF THE PLEADINGS, THE EXTENT
AND SCOPE OF DISCOVERY, THE ISSUANCE OF SUBPOENAS, THE TIMES FOR THE DESIGNATION
OF EXPERTS, WHETHER THE ARBITRATION IS TO BE STAYED PENDING RESOLUTION OF
RELATED LITIGATION INVOLVING THIRD PARTIES NOT BOUND BY THIS AGREEMENT, THE
RECEIPT OF EVIDENCE, AND THE LIKE), SHALL BE DECIDED BY THE INDEPENDENT EXPERT.
THE ARBITRATION ADMINISTERED BY THE INDEPENDENT EXPERT SHALL BE CONDUCTED
PURSUANT TO THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION (THE "RULES"), EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT.
THE ARBITRATION PROCEEDINGS SHALL BE SUBJECT TO ANY OPTIONAL RULES
CONTAINED IN THE RULES FOR EMERGENCY MEASURES AND, IN THE CASE OF DISPUTES WITH
RESPECT TO AMOUNTS IN EXCESS OF $1,000,000, OPTIONAL RULES FOR LARGE AND COMPLEX
CASES.
(II)
THE INDEPENDENT EXPERT SHALL PERMIT AND
FACILITATE SUCH DISCOVERY AS HE/SHE DETERMINES IS APPROPRIATE IN THE
CIRCUMSTANCES, TAKING INTO ACCOUNT THE NEEDS OF THE PARTIES AND THE DESIRABILITY
OF MAKING DISCOVERY EXPEDITIOUS AND COST-EFFECTIVE.
SUCH DISCOVERY MAY INCLUDE
PRE-HEARING DEPOSITIONS, PARTICULARLY DEPOSITIONS OF WITNESSES WHO WILL NOT
APPEAR PERSONALLY TO TESTIFY, IF THERE IS A DEMONSTRATED NEED THEREFOR.
THE
INDEPENDENT EXPERT MAY ISSUE ORDERS TO PROTECT THE CONFIDENTIALITY OF
PROPRIETARY INFORMATION, TRADE SECRETS AND OTHER SENSITIVE INFORMATION DISCLOSED
IN DISCOVERY.
(III)
ALL ARBITRATION PROCEEDINGS HEREUNDER SHALL
BE CONDUCTED IN HOUSTON, TEXAS OR SUCH OTHER MUTUALLY AGREEABLE LOCATION.
(IV)
IN DECIDING THE SUBSTANCE OF THE DISPUTE, THE
INDEPENDENT EXPERT SHALL REFER TO THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS FOR
GUIDANCE (EXCLUDING CHOICE-OF-LAW PRINCIPLES THAT MIGHT CALL FOR THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION).