Fast Track Referee Process. If the Dispute is not resolved pursuant to Section 2.4 of this Schedule 13 within 5 Business Days (or such longer period as the parties may agree) of the first meeting of the Senior Executives, either party may, by written notice to the other party (a “Referee Notice”), request the appointment of a referee (the “Referee”) as provided under the terms of this Section 2.5. The Referee will be appointed as an expert to resolve the Dispute and will participate in the resolution of the Dispute as set out below: (a) if the Referee Notice is given during the Construction Period, then the Independent Certifier will, as of the end of the 2nd Business Day following the delivery of the Referee Notice, be deemed the Referee unless: (1) within 2 Business Days of the delivery of the Referee Notice, either (i) the parties agree that another person would be more suitable considering the nature of the Dispute, or (ii) either party gives written notice that it objects to the Independent Certifier acting as Referee in relation to the Dispute; or (2) for any reason the Independent Certifier is unable to perform the duties of the Referee, and, in either case, the Referee will be appointed in the manner described in Section 2.5(b) of this Schedule 13; (b) if the Dispute Notice is given during the Operating Period or Section 2.5(a) of this Schedule 13 requires that this Section 2.5(b) applies, the parties will appoint a Referee in the following manner: (1) within 2 Business Days of the delivery of a Referee Notice, each party will submit in writing to the other party the names of no more than 2 candidates for Referee who are independent of the parties, experienced in the resolution of similar disputes and immediately available to perform the role of Referee in respect of the Dispute at hand; (2) if a party has an objection to a proposed candidate, it will give written notice of such objection with reasons to the other party; and (3) if, for any reason, within 3 Business Days of the delivery of a Referee Notice, a Referee has not been appointed, then either party or both parties may apply to a judge of the state court in Franklin County, Kentucky to select a Referee in relation to the Dispute; (c) the parties will enter into an agreement with the Referee generally in the form attached as Appendix 13A (the “Referee Agreement”), such agreement to be entered into no later than 2 Business Days after the Referee’s appointment; (d) the Referee’s fees and expenses will be shared equally by the Authority and Project Co, provided that the Authority will pay the full amount of the Referee’s fees and expenses on the day that such fees and expenses are due (including any advances on fees and expenses) in accordance with the Referee Agreement and Project Co will reimburse the Authority for Project Co’s share of all such fees and expenses within 5 Business Days of receipt of a written demand from the Authority, failing which the Authority will be entitled to deduct the amount of Project Co’s share of the Referee’s fees and expenses from amounts otherwise due to Project Co under the provisions of this Project Agreement; (e) the Referee will conduct an impartial review of the Dispute in such manner as the Referee thinks fit, including carrying out on-site inspections and interviews with any persons that the Referee thinks fit; (f) the parties will comply with all reasonable requests from the Referee for additional information, documents and access to personnel which the Referee considers necessary for the review; (g) any submission or documentation in respect of the Dispute provided to the Referee by a party will also be provided to the other party; (h) the Referee may, with the written approval of both parties, retain other professional persons or experts to assist with the review and will pay due regard to any request by either party for him to retain such other professional persons or experts; (i) the Referee will not be obliged to conduct his inquiries in the presence of the parties or receive submissions from the parties, except to the extent that the Referee thinks fit, and may render his decision notwithstanding the failure of a party to participate in the proceedings; (j) the Referee will render a brief, written, reasoned and impartial decision on the Dispute, with copies to both parties within 5 Business Days of the signing by the Referee and both parties of the Referee Agreement referred to in Section 2.5(c) of this Schedule 13, or such longer period as agreed to in writing by both parties; (k) the Referee’s decision will be in the form of a proposed determination of the rights of the parties having regard to the Referee’s understanding of the relevant contractual provisions, the applicable law and the facts as agreed by the parties or as best the Referee is able to determine them; (l) each party acknowledges the value of having the Referee render a timely decision regarding the Dispute and, if the Referee is unable to render his decision within the time set or as extended by mutual agreement of the parties, then the parties will request that the Referee provide to the parties within such time such analysis of the Dispute as the Referee is able to make within that time and describe the further work the Referee recommends would be required in order to arrive at a reasoned decision; (m) subject to the provisions of Section 3.3 of this Schedule 13, a decision of a Referee is not binding on the parties but is intended to assist the parties to reach agreement with respect to the Dispute; (n) the proceedings under this Section 2.5 will be confidential and all information, data or documentation disclosed or delivered by either party to the Referee as a result of or in connection with his duties as Referee will be treated as confidential and neither of the parties nor the Referee will, except as would be permitted under Section 17 of this Project Agreement, disclose to any Person any such information, data or documentation unless the parties otherwise agree in writing, provided that nothing contained in this provision will prevent the submission in any subsequent proceedings of any evidence other than evidence that came into existence for the express purpose of submission to, or assistance of, the Referee; and (o) the proceedings by or before a Referee will be without prejudice in any subsequent proceedings.
Appears in 1 contract
Samples: Lenders’ Remedies Agreement
Fast Track Referee Process. If the Dispute is not resolved pursuant to Section 2.4 2.3 of this Schedule 13 to the mutual satisfaction of the parties within 5 Business Days (or such longer period as the parties may agree) following the receipt of the first meeting of Dispute Notice by the Senior Executivesreceiving party, either party may, may by written notice to the other party (a “Referee Notice”), request the appointment of a referee (the “Referee”) as provided under the terms of this Section 2.52.4. The Referee will be appointed as an expert to resolve the Dispute and will participate in the resolution of the Dispute as set out below:
(a) if the Referee Notice is given during the Construction Period, then the Independent Certifier will, will as of the end of the 2nd Business Day following the delivery of the Referee Notice, Notice be deemed the Referee unless:
(1) within 2 Business Days of the delivery of the Referee Notice, Notice either (i) the parties agree that another person would be more suitable considering the nature of the Dispute, or (ii) either party gives written notice that it objects to the Independent Certifier acting as Referee in relation to the Dispute; or
(2) for any reason the Independent Certifier is unable to perform the duties of the Referee, and, in either case, which events the Referee will be appointed in the manner described in Section 2.5(b2.4(b) of this Schedule 13Schedule;
(b) if the Dispute Notice is given during the Operating Period or Section 2.5(a2.4(a) of this Schedule 13 requires that this Section 2.5(b2.4(b) applies, the parties will appoint a Referee in the following manner:
(1) within 2 Business Days of the delivery of a Referee NoticeXxxxxx, each party will submit in writing to the other party party, the names of no more than 2 candidates for Referee who are independent of the parties, experienced in the resolution of similar disputes parties and immediately available to perform the role of Referee in respect of the Dispute at hand;
(2) if a party has an objection to a proposed candidate, it will give written notice of such objection with reasons to the other party; and
(3) if, if for any reason, reason within 3 Business Days of the delivery of a Referee NoticeXxxxxx, a Referee has not been appointed, then either party or both parties may apply to a judge the British Columbia International Commercial Arbitration Centre for an arbitrator to be promptly appointed under its “Domestic Commercial Arbitration Rules of the state court in Franklin County, Kentucky to select a Referee in relation to the DisputeProcedure”;
(c) the parties will enter into an agreement with the Referee to act as Referee generally in the form attached as Appendix 13A (the “Referee Agreement”), such agreement to be entered into no later than 2 Business Days after the Referee’s appointment;
(d) the . The Referee’s fees and expenses will be shared equally by the Authority and Project Co, provided that the Co. The Authority will pay the full amount of the Referee’s fees and expenses on the day that such fees and expenses are due (including any advances on fees and expenses) in accordance with the Referee Agreement and Project Co will reimburse the Authority Authority, for Project Co’s share of all such fees and expenses within 5 Business Days of receipt of a written demand from the Authority, failing which the Authority will be entitled to deduct the amount of Project Co’s share of the Referee’s fees and expenses from amounts otherwise due to Project Co under the provisions of this Project Agreement;
(ed) the Referee will conduct an impartial review of the Dispute in such manner as the Referee thinks fit, including carrying out on-on site inspections and interviews with any persons that the Referee thinks fit;
(f) the . The parties will comply with all reasonable requests from the Referee for additional information, documents and access to personnel which the Referee considers necessary for the review;
(g) any . Any submission or documentation in respect of the Dispute provided to the Referee by a party will also be provided to the other party;
(he) the Referee may, with the written approval of both parties, retain other professional persons or experts to assist with the review and will pay due regard to any request by either party for him to retain such other professional persons or experts;
(if) the Referee will not be obliged to conduct his inquiries enquiries in the presence of the parties or receive submissions from the parties, except to the extent that the Referee thinks fit, and may render his decision notwithstanding the failure of a party to participate in the proceedings;
(jg) the Referee will render a brief, written, reasoned and impartial decision on the Dispute, with copies to both parties within 5 Business Days of the signing by the Referee and both parties of the Referee Agreement referred to in Section 2.5(c2.4(c) of this Schedule 13Schedule, or such longer period as agreed to in writing by both parties;
(k) the . The Referee’s decision will be in the form of a proposed determination of the rights of the parties having regard to the Referee’s understanding of the relevant contractual provisions, the applicable law and the facts as agreed by the parties or as best the Referee is able to determine them;
(lh) each party acknowledges the value of having the Referee render a timely decision regarding the Dispute and, if Dispute. If the Referee is unable to render his decision within the time set or as extended by mutual agreement of the parties, then the parties Referee will request that the Referee within such time provide to the parties within such time such analysis of the Dispute as the Referee is able to make within that time and describe the further work the Referee recommends would be required in order to arrive at a reasoned decision;
(mi) subject to the provisions of Section 3.3 of this Schedule 13Schedule, a decision of a Referee is not binding on the parties but is intended to assist the parties to reach agreement with respect to the Dispute;
(nj) the proceedings under this Section 2.5 2.4 will be confidential and all information, data or documentation disclosed or delivered by either party to the Referee as a result of or in connection with his duties as Referee will be treated as confidential and neither of the parties nor the Referee will, except as would be permitted under Section 17 of this Project Agreement, disclose to any Person any such information, data or documentation unless the parties otherwise agree in writing, provided that nothing . Nothing contained in this provision will prevent the submission in any subsequent proceedings of any evidence other than evidence that came into existence for the express purpose of submission to, or assistance of, the Referee; and
(ok) the proceedings by or before a Referee will be without prejudice in any subsequent proceedings.
Appears in 1 contract
Samples: Dispute Resolution Agreement
Fast Track Referee Process. If the Dispute is not resolved pursuant to Section 2.4 of this Schedule 13 to the mutual satisfaction of the parties within 5 Business Days (or such longer period as the parties may agree) following the receipt of the first meeting of Dispute Notice by the Senior Executivesreceiving party, either party may, may by written notice to the other party (a “Referee Notice”), request the appointment of a referee (the “Referee”) as provided under the terms of this Section 2.5. The Referee will be appointed as an expert to resolve the Dispute and will participate in the resolution of the Dispute as set out below:
(a) if the Referee Notice is given during the Construction Period, then the Independent Certifier will, as of the end of the 2nd Business Day following the delivery of the Referee Notice, be deemed the Referee unless:
(1) within 2 Business Days of the delivery of the Referee Notice, either (i) the parties agree that another person would be more suitable considering the nature of the Dispute, or (ii) either party gives written notice that it objects to the Independent Certifier acting as Referee in relation to the Dispute; or
(2) for any reason the Independent Certifier is unable to perform the duties of the Referee, and, in either case, the Referee will be appointed in the manner described in Section 2.5(b) of this Schedule 13;
(b) if the Dispute Notice is given during the Operating Period or Section 2.5(a) of this Schedule 13 requires that this Section 2.5(b) applies, the parties will appoint a Referee in the following manner:
(1) within 2 Business Days of the delivery of a Referee NoticeXxxxxx, each party will submit in writing to the other party party, the names of no more than 2 candidates for Referee who are independent of the parties, experienced in the resolution of similar disputes parties and immediately available to perform the role of Referee in respect of the Dispute at hand;
(2) if a party has an objection to a proposed candidate, it will give written notice of such objection with reasons to the other party; and;
(3) if, if for any reason, reason within 3 Business Days of the delivery of a Referee NoticeXxxxxx, a Referee has not been appointed, then either the Referee will be chosen by random selection from candidates proposed by the parties, each party or both parties may apply nominating one candidate and the choice between them being made by a toss of a coin, Project Co to a judge make the toss and the Authority the call. In the event that one party has not nominated any candidates within 3 Business Days of the state court in Franklin County, Kentucky to select delivery of a Referee Xxxxxx, then the other party shall nominate two candidates and the choice of the Referee shall be made between said two candidates on the basis of the coin toss mentioned in relation to the Disputeimmediately preceding sentence;
(cb) the parties will enter into an agreement with the Referee to act as Referee generally in the form attached as Appendix 13A (the “Referee Agreement”), such agreement to be entered into no later than 2 Business Days after the Referee’s appointment;
(d) the . The Referee’s fees and expenses will be shared equally by the Authority and Project Co, provided that the Co. The Authority will pay the full amount of the Referee’s fees and expenses on the day that such fees and expenses are due (including any advances on fees and expenses) in accordance with the Referee Agreement and Project Co will reimburse the Authority Authority, for Project Co’s share of all such fees and expenses within 5 Business Days of receipt of a written demand from the Authority, failing which the Authority will be entitled to deduct the amount of Project Co’s share of the Referee’s fees and expenses from amounts otherwise due to Project Co under the provisions of this Project Agreement;
(ec) the Referee will conduct an impartial review of the Dispute in such manner as the Referee thinks fit, including carrying out on-on site inspections and interviews with any persons that the Referee thinks fit;
(f) the . The parties will comply with all reasonable requests from the Referee for additional information, documents and access to personnel which the Referee considers necessary for the review;
(g) any . Any submission or documentation in respect of the Dispute provided to the Referee by a party will also be provided to the other party;
(hd) the Referee may, with the written approval of both parties, retain other professional persons or experts to assist with the review and will pay due regard to any request by either party for him to retain such other professional persons or experts;
(ie) the Referee will not be obliged to conduct his inquiries enquiries in the presence of the parties or receive submissions from the parties, except to the extent that the Referee thinks fit, and may render his decision notwithstanding the failure of a party to participate in the proceedings;
(jf) the Referee will render a brief, written, reasoned and impartial decision on the Dispute, with copies to both parties within 5 Business Days of the signing by the Referee and both parties of the Referee Agreement referred to in Section 2.5(c2.5(b) of this Schedule 13Schedule, or such longer period as agreed to in writing by both parties;
(k) the . The Referee’s decision will be in the form of a proposed determination of the rights of the parties having regard to the Referee’s understanding of the relevant contractual provisions, the applicable law and the facts as agreed by the parties or as best the Referee is able to determine them;
(lg) each party acknowledges the value of having the Referee render a timely decision regarding the Dispute and, if Dispute. If the Referee is unable to render his decision within the time set or as extended by mutual agreement of the parties, then the parties Referee will request that the Referee within such time provide to the parties within such time such analysis of the Dispute as the Referee is able to make within that time and describe the further work the Referee recommends would be required in order to arrive at a reasoned decision;
(mh) subject to the provisions of Section 3.3 of this Schedule 13Schedule, a decision of a Referee is not binding on the parties but is intended to assist the parties to reach agreement with respect to the Dispute;
(ni) the parties will agree to release and save harmless the Referee from any liability arising from the Referee’s actions, made in good faith, in carrying out the duties of the Referee as described in this Schedule or as may be described in the Referee Agreement referred to in Section 2.5(b) of this Schedule;
(j) the proceedings under this Section 2.5 will be confidential and all information, data or documentation disclosed or delivered by either party to the Referee as a result of or in connection with his duties as Referee will be treated as confidential and neither of the parties nor the Referee will, except as would be permitted under Section 17 of this Project Agreement, disclose to any Person any such information, data or documentation unless the parties otherwise agree in writing, provided that nothing . Nothing contained in this provision will prevent the submission in any subsequent proceedings of any evidence other than evidence that came into existence for the express purpose of submission to, or assistance of, the Referee; and
(ok) the proceedings by or before a Referee will be without prejudice in any subsequent proceedings.
Appears in 1 contract
Samples: Dispute Resolution Agreement
Fast Track Referee Process. If the Dispute is not resolved pursuant to Section 2.4 2.3 of this Schedule 13 to the mutual satisfaction of the parties within 5 Business Days (or such longer period as the parties may agree) following the receipt of the first meeting of Dispute Notice by the Senior Executivesreceiving party, either party may, may by written notice to the other party (a “Referee Notice”), request the appointment of a referee (the “Referee”) as provided under the terms of this Section 2.52.4. The Referee will be appointed as an expert to resolve the Dispute and will participate in the resolution of the Dispute as set out below:
(a) if the Referee Notice is given during the Construction Period, then the Independent Certifier will, will as of the end of the 2nd Business Day following the delivery of the Referee Notice, Notice be deemed the Referee unless:
(1) within 2 Business Days of the delivery of the Referee Notice, Notice either (i) the parties agree that another person would be more suitable considering the nature of the Dispute, or (ii) either party gives written notice that it objects to the Independent Certifier acting as Referee in relation to the Dispute; or
(2) for any reason the Independent Certifier is unable to perform the duties of the Referee, and, and in either case, such case the Referee will be appointed in the manner described in Section 2.5(b2.4(b) of this Schedule 13Schedule;
(b) if the Dispute Notice is given during the Operating Period or Section 2.5(a2.4(a) of this Schedule 13 requires that this Section 2.5(b2.4(b) applies, the parties will appoint a Referee in the following manner:
(1) within 2 Business Days of the delivery of a Referee NoticeXxxxxx, each party will submit in writing to the other party party, the names of no more than 2 candidates for Referee who are independent of the parties, experienced in the resolution of similar disputes parties and immediately available to perform the role of Referee in respect of the Dispute at hand;
(2) if a party has an objection to a proposed candidate, it will give written notice of such objection with reasons to the other party; and;
(3) if, if for any reason, reason within 3 Business Days of the delivery of a Referee NoticeXxxxxx, a Referee has not been appointed, then either party or both parties may apply to a judge the British Columbia International Commercial Arbitration Centre for an arbitrator to be promptly appointed under its “Domestic Commercial Arbitration Rules of the state court in Franklin County, Kentucky to select a Referee in relation to the Dispute;Procedure”.
(c) the parties will enter into an agreement with the Referee to act as Referee generally in the form attached as Appendix 13A (the “Referee Agreement”), such agreement to be entered into no later than 2 Business Days after the Referee’s appointment;
(d) the . The Referee’s fees and expenses will be shared equally by the Authority and Project Co, provided that the Co. The Authority will pay the full amount of the Referee’s fees and expenses on the day that such fees and expenses are due (including any advances on fees and expenses) in accordance with the Referee Agreement and Project Co will reimburse the Authority Authority, for Project Co’s share of all such fees and expenses within 5 Business Days of receipt of a written demand from the Authority, failing which the Authority will be entitled to deduct the amount of Project Co’s share of the Referee’s fees and expenses from amounts otherwise due to Project Co under the provisions of this Project Agreement;
(ed) the Referee will conduct an impartial review of the Dispute in such manner as the Referee thinks fit, including carrying out on-on site inspections and interviews with any persons that the Referee thinks fit;
(f) the . The parties will comply with all reasonable requests from the Referee for additional information, documents and access to personnel which the Referee considers necessary for the review;
(g) any . Any submission or documentation in respect of the Dispute provided to the Referee by a party will also be provided to the other party;
(he) the Referee may, with the written approval of both parties, retain other professional persons or experts to assist with the review and will pay due regard to any request by either party for him to retain such other professional persons or experts;
(if) the Referee will not be obliged to conduct his inquiries enquiries in the presence of the parties or receive submissions from the parties, except to the extent that the Referee thinks fit, and may render his decision notwithstanding the failure of a party to participate in the proceedings;
(jg) the Referee will render a brief, written, reasoned and impartial decision on the Dispute, with copies to both parties within 5 Business Days of the signing by the Referee and both parties of the Referee Agreement referred to in Section 2.5(c2.4(c) of this Schedule 13Schedule, or such longer period as agreed to in writing by both parties;
(k) the . The Referee’s decision will be in the form of a proposed determination of the rights of the parties having regard to the Referee’s understanding of the relevant contractual provisions, the applicable law and the facts as agreed by the parties or as best the Referee is able to determine them;
(lh) each party acknowledges the value of having the Referee render a timely decision regarding the Dispute and, if Dispute. If the Referee is unable to render his decision within the time set or as extended by mutual agreement of the parties, then the parties will request that the Referee provide to the parties within such time such analysis of the Dispute as the Referee is able to make within that time and describe the further work the Referee recommends would be required in order to arrive at a reasoned decision;
(mi) subject to the provisions of Section 3.3 of this Schedule 13Schedule, a decision of a Referee is not binding on the parties but is intended to assist the parties to reach agreement with respect to the Dispute;
(nj) the parties will agree to release and save harmless the Referee from any liability arising from the Referee’s actions, made in good faith, in carrying out the duties of the Referee as described in this Schedule or as may be described in the Referee Agreement referred to in Section 2.4(c) of this Schedule;
(k) the proceedings under this Section 2.5 2.4 will be confidential and all information, data or documentation disclosed or delivered by either party to the Referee as a result of or in connection with his duties as Referee will be treated as confidential and neither of the parties nor the Referee will, except as would be permitted under Section 17 of this Project Agreement, disclose to any Person any such information, data or documentation unless the parties otherwise agree in writing, provided that nothing . Nothing contained in this provision will prevent the submission in any subsequent proceedings of any evidence other than evidence that came into existence for the express purpose of submission to, or assistance of, the Referee; and
(ol) the proceedings by or before a Referee will be without prejudice in any subsequent proceedings.
Appears in 1 contract
Samples: Dispute Resolution Agreement