Determination by Expert. 15.2.1 If the Parties are unable to resolve a Dispute in accordance with Clause 15.1, then either Party, in accordance with this Clause 15.2, may refer the Dispute to an expert ("Expert") for consideration of the Dispute and to obtain a determination from the Expert as to the resolution thereof. Notwithstanding the foregoing, in accordance with Clause 15.2.14 and 15.2.15, either Party may require that any Dispute be referred for resolution to arbitration under Clause 15.3 without first referring it to an Expert.
15.2.2 The Party initiating submission of the Dispute to the Expert shall provide the other Party with a notice stating that it is submitting the Dispute to an Expert and nominating the person it proposes to be the Expert. Within seven (7) Days of receiving such notice, the other Party shall notify the initiating Party whether such person is acceptable and if such nominated expert is not acceptable to the responding Party, the responding Party shall propose a person to be the expert. If the Party receiving such notice fails to respond or notifies the initiating Party that the person is not acceptable or nominates an expert that is not acceptable to the initiating Party, the Parties shall meet within five (5) Business Days and discuss in good faith for a period of five (5) Days to agree upon a person to be the Expert. Failing agreement on the Expert within the said five (5) Days, the ICC International Centre for Expertise shall be directed by either Party to select the Expert and the selection of the Expert by the relevant selecting entity shall be binding on the Parties; provided however, unless the Parties otherwise agree, the Expert shall not be a national of the jurisdiction of either Party or of the jurisdiction of any Investor or group of Investors holding directly or beneficially more than five per cent (5%) of the Concessionaire nor shall any such Expert be an employee or agent or former employee or agent or have a material interest in the business of any such Person.
15.2.3 Without prejudice to the Parties' right to proceed to arbitration under Clause 15.3, if the Expert has been appointed, but is unable to or unwilling to complete the consideration of the Dispute and provide a determination, another Expert shall be appointed by agreement between the parties or, failing agreement within five (5) Days of the Parties being notified that the Expert is so unable or unwilling to provide a determination, the ICC International Centre for Expertise...
Determination by Expert. (a) In the event that the Parties are unable to resolve a dispute in accordance with Clause 26.1 within the time periods set forth therein, then either Party, in accordance with this Clause 26.2, may refer the dispute to an expert (the “Expert”) for consideration of the dispute and to obtain a recommendation from the Expert as to the resolution thereof. The Party initiating submission of the dispute to the Expert shall provide the other Party with a notice stating that it is submitting the dispute to an Expert and nominating the person it proposes to be the Expert. Within fifteen
Determination by Expert. The Expert:
(a) must conduct its determination in accordance with the Rules, which Rules are taken to be incorporated into this Agreement;
(b) will act as an expert and not as an arbitrator;
(c) may determine the time, place and procedures (which will be as informal as is consistent with the proper conduct of the matter) for the determination by the Expert, having regard to the nature of the Financial Dispute and the provisions of this Agreement;
(d) may communicate privately with the Parties or with their lawyers;
(e) may or may not allow the appearance of lawyers on behalf of the Parties;
(f) may accept written submissions from a Party in relation to the Financial Dispute, provided a copy of the submission is also given to all other Parties;
(g) may co-opt other expert assistance;
(h) must have regard to the fairness and reasonableness of any matters pertaining to the Royalty Dispute; and
(i) must deal with any matter as expeditiously as possible and by no later than twenty (20) Business Days after referral to the Expert.
Determination by Expert. (a) Notwithstanding anything to the contrary contained in this Agreement, if the Purchaser, by virtue of its control over the Company, during anytime between the First Closing Date and the Earnout Payment Date, unilaterally takes any decision, either a commission or an omission, with respect to the Company, without the prior written concurrence of the Founders; and which the Founders reasonably believe has adversely impacted the Audited Net Income of the Company during the Earnout Period, then the Founders may refer the matter to Mr. Sxxxxxx Xxxxxxx, currently working as Managing Director of Helion Ventures Pvt Ltd, or such other person as mutually agreed between the Founders and Purchaser (the “Expert”). It is further clarified that the reference to the Expert shall extend to the determination of the existence of an event which may be Cause for Earnout Determination.
(b) If the Expert determines that the Purchaser has adversely impacted the Net Income of the Company without Cause for Earnout Determination, then the impact on Net Income as determined by the Expert shall be added to the Audited Net Income for the Earnout Period as determined in accordance with this Agreement. Any determination by the Expert shall be made within 30 days of any reference made to the Expert and shall be binding on the Parties.
(c) The cost of reference to the Expert shall be borne by such Party as may be determined by the Expert. If the Expert determines that the Purchaser has adversely impacted the Net Income of the Company to the prejudice of the Founders, without Cause for Earnout Determination, thereby causing an adverse impact on the receipt of the Earnout Consideration and the impact is such that the Earnout Consideration would otherwise than for such impact have been USD 35 Million, then the Purchaser shall pay USD 35 Million subject to any adjustments/ deductions to the Earnout Consideration that is permissible to be made under the provisions of this Agreement as Earnout Consideration to the Selling Shareholders on or prior to the Earnout Payment Date. It is expressly clarified that the termination of any Founder or Key Employee from his employment for Cause for Employment shall not be raised by the Founders as an event adversely affecting Net Income.
Determination by Expert. If an Expert is appointed under clause 19.3, the Expert:
(a) will act as an expert and not as an arbitrator;
(b) may determine the time, place and procedures (which will be as informal as is consistent with the proper conduct of the matter) for the determination by the Expert, having regard to the nature of the Dispute and the provisions of this Agreement;
(c) may communicate privately with the parties or with their lawyers;
(d) may or may not allow the appearance of lawyers on behalf of the parties;
(e) may accept written submissions from a party in relation to the Dispute, provided a copy of the submission is also given to all other parties;
(f) may co-opt other expert assistance;
(g) must have regard to the fairness and reasonableness of any matters pertaining to the Dispute; and
(h) must deal with any matter as expeditiously as possible and by no later than 20 Business Days after referral to the Expert.
Determination by Expert. 2.1 The Expert shall exercise its independent professional judgement in arriving at a determination of the Subject Matter having due regard to the terms of the Agreement, including specifically clause 12.7.
2.2 The Expert will act as expert and not as arbitrator, and the determinations by the Expert under this Annexe "E" shall be final and binding on the Determination Parties.
Determination by Expert. The Expert shall not be bound to choose either any proposal made by the Company or any made by the Global Agent but shall be free to make his own reasonable determination of the point referred to him.
Determination by Expert. (a) In the event that the Parties are unable to resolve a Dispute in accordance with Section 18.1 within the time periods set forth therein, then either Party, in accordance with this Section 18.2, may refer the Dispute to an expert (the “Expert”) for consideration of the Dispute and to obtain a determination from the Expert as to the resolution thereof. Notwithstanding anything contrary contained herein, either Party may require that any Dispute be referred for resolution to arbitration pursuant to Section 18.3 without first referring it to an Expert.
(b) Subject to (a) above, the Party initiating submission of the Dispute to the Expert shall provide the other Party with a notice stating that it is submitting the Dispute to an Expert and nominating the person it proposes to be the Expert. The Expert may be an individual, partnership, association or body corporate and shall be generally recognized as an expert in the field of expertise relevant to the Dispute, which is the subject matter of the
Determination by Expert. The Expert:
(a) must conduct its determination in accordance with the Rules for Expertise of the International Chamber of Commerce (“ICC”);
(b) will act as an expert and not as an arbitrator;
(c) may determine the time, place and procedures (which will be as informal as is consistent with the proper conduct of the matter) for the determination by the Expert, having regard to the nature of the Dispute and the provisions of this Agreement;
(d) may communicate privately with the Buyer and the Main Sellers and the Management Sellers or with their lawyers;
(e) may or may not allow the appearance of lawyers on behalf of the Buyer or the Main Sellers and the Management Sellers provided they are treated equally;
(f) may accept written submissions from a party in relation to the Dispute, provided a copy of the submission is also given, as applicable, to all the Buyer or to the Main Sellers and the Management Sellers;
(g) may co-opt other expert assistance; and
(h) must deal with any matter as expeditiously as possible and by no later than 20 Business Days after referral to the Expert.
Determination by Expert. The Independent Expert appointed under clause 10.2 will:
(a) make a determination based on the information made available by the parties;
(b) make a determination having regard to the obligations of the parties under this Deed; and
(c) notify the parties in writing of his or her determination within 10 Business Days of his or her appointment.
