5.1 Where paragraph 3.2 above applies or if (where required) the Dispute has not been resolved within ten (10) Business Days of it being referred to the Liaison Committee and/or the parties have chosen not to refer the Dispute to mediation, either party may by notice to the other refer the Dispute to an Adjudicator selected in accordance with paragraph 5.2 below.
5.2 The Adjudicator nominated to consider a Dispute referred to him shall be selected on a strictly rotational basis from the relevant panel of experts appointed in accordance with the following:
5.2.1 there shall be two (2) panels of experts, one in respect of construction matters (the "Construction Panel") and one in respect of operational and maintenance matters (the "Operational Panel"). All the experts on each panel shall be wholly independent of Project Co, the Board, the relevant Sub-Contractor and any of the major competitors of Project Co or relevant Sub-Contractor;
5.2.2 the Construction Panel shall be comprised of three (3) experts as identified in paragraph 8 who shall be appointed jointly by Project Co and the Board. Such appointments shall take place within twenty-eight (28) days of the date of this Agreement;
5.2.3 the Operational Panel shall be comprised of three (3) experts as identified in paragraph 8 who shall be appointed jointly by Project Co and the Board. Such appointments shall take place on or before the Actual Completion Date;
5.2.4 if any member of a panel resigns during the term of the Agreement, a replacement expert shall be appointed by Project Co and the Board as soon as practicable;
5.2.5 if Project Co and the Board are unable to agree on the identity of the experts to be appointed to the panels or any replacement expert, the [Chairman (or Vice Chairman) for the time being of the Chartered Institute of Arbitrators Scottish Branch] [President (or Vice President) for the time being of the Law Society of Scotland] 223 shall appoint such expert(s) within seven (7) days of any application for such appointment by either party.
5.3 Within seven (7) days of appointment in relation to a particular Dispute, the Adjudicator shall require the referring party and then the responding party to submit in writing their respective arguments in accordance with a timetable to be determined by the Adjudicator. The Adjudicator shall in his absolute discretion, consider whether a hearing is necessary in order to resolve the Dispute.
5.4 In any event the Adjudicator shall provide to both parties his written decision on the Dispute within twenty-eight (28) days of appointment (or such other period as the parties may agree after the reference. The Adjudicator may extend the period of 28 days by up to 14 days with the consent of the party which referred the Dispute. Unless one or more of the parties so requests the Adjudicator shall not be required to give reasons for his decision. Unless and until revised, cancelled or varied by [the Arbitrator] [a decision of the court] 224 pursuant to paragraph 6 of this Part 26 of the Schedule the Adjudicator's decision shall be final and binding on both parties who shall forthwith give effect to the decision.
5.5 The Adjudicator's costs of any reference shall be borne as the Adjudicator shall specify or, in default, equally by the parties. Each party shall bear its own costs arising out of the reference, including legal costs and the costs and expenses of any witnesses.
5.6 The Adjudicator shall be deemed not to be an arbitrator but shall render his decision as an expert and the law relating to arbitration shall not apply to the Adjudicator or his determination or the procedure by which he reached his determination.
5.7 The Adjudicator shall act impartially and may take the initiative in ascertaining the facts and the law. The Adjudicator shall have the power to open up, review and revise any opinion, certificate, instruction, determination or decision of whatever nature given or made under this Agreement.
5.8 All information, data or documentation disclosed or delivered by a party to the Adjudicator in consequence of or in connection with his appointment as Adjudicator shall be treated as confidential. The Adjudicator shall not, save as permitted by Clause 52 (Confidentiality), disclose to any person or company any such information, data or documentation and all such information, data or documentation shall remain the property of the party disclosing or delivering the same and all copies of the Adjudicator's work.
5.9 The Adjudicator is not liable for anything done or omitted in the discharge or purported discharge of his functions as Adjudicator unless the act or omission is in bad faith. Any employee or agent of the Adjudicator is similarly protected from liability.
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223 The Board should select one option before issuing first draft of Project Agreement
224 Delete "the Arbitrator" if paragraph 6B is selected and delete "a decision of the court" if paragraph 6A is selected