12.  REFERENCE TO ARBITRATION [COURTS]176

If:

12.1.  there is any dispute in respect of matters referred to in Clauses 34 (Market Testing), 44 (Change in Law), 66 (Compensation on Termination for Authority Default), 68 (Compensation on Termination for Contractor Default), 70 (Compensation on Termination for Force Majeure), 72 (Compensation on Corrupt Gifts and Fraud), 74 (Compensation on Voluntary Termination by the Authority), 76 (Compensation on Termination for Breach of the Refinancing Provisions) or paragraphs 2 and 3 (Authority and Contractor Changes) of Schedule 21 (Change Protocol);

12.2.  either Party is dissatisfied with or otherwise wishes to challenge the Adjudicator's decision made in accordance with paragraph 6 (Adjudicator's Decision); or

12.3.  both Parties agree, then either Party may (within [twenty (20)] Business Days of receipt of the Adjudicator's decision, where appropriate), notify the other Party of its intention to refer the dispute to arbitration.177  Such notification shall invite the other party to concur in the appointment of a sole arbitrator who shall be a solicitor, barrister or arbitrator recognised by the Chartered Institute of Arbitrators of not less than 10 years' standing (the "Arbitrator").  If the Parties are unable within ten (10) Business Days to agree the identity of the Arbitrator either party may request the President of the Law Society to make the appointment.

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176  The parties may incorporate provisions to go to court at this stage instead of arbitration if appropriate. This is a matter for Authorities to determine as they consider appropriate. WIDP is neutral on the issue.  In addition, the parties may wish to address expressly the right to apply to the courts for interlocutory relief at any stage in support of the adjudication or arbitration (assuming the arbitrator does not have such powers). If so, the need to appoint agents for service of process on overseas parties will arise.  It is important to note that Authorities cannot proceed to traditional litigation in the courts when they choose to use arbitration.  Authorities to consider Section 4.39.5 of the WIDP Procurement Pack Module 6A: Guidance on Methods of Joint Working (May 2009).

177 The parties may incorporate provisions to go to court at this stage instead of arbitration if appropriate. In addition, the parties may wish to address expressly the right to apply to the courts for interlocutory relief at any stage in support of the adjudication or arbitration (assuming the arbitrator does not have such powers). If so, the need to appoint agents for service of process on overseas parties will arise.