21.4 Effect of issue of Test Certificate

21.4.1 If the Independent Certifier fails to issue the relevant Test Certificate in accordance with Clause 21.3 or either Party wishes to challenge the relevant Test Certificate or if there are certain aspects of the Independent Certifier's report provided pursuant to Clause 21.2.8 (as the case may be) which the relevant Party wishes to challenge, the relevant Party shall be entitled to refer the matter for determination by an Adjudicator under the Dispute Resolution Procedure as if it constituted a dispute.

21.4.2 The Parties agree that the relevant Test Certificate shall be final binding and enforceable upon the Parties except in the case of fraud, collusion, bias or manifest error [unless the matter is referred for determination by an Adjudicator under the Dispute Resolution Procedure within [fifteen (15)] Business Days of receipt of the relevant Test Certificate]40.

21.4.3 Without prejudice to any rights or remedies that the Parties may have against the Independent Certifier, the Parties agree that, notwithstanding any other provision contained in the Dispute Resolution Procedure an Adjudicator's decision referred to in Clause 21.4.2 shall be final, binding and enforceable upon the Parties and may not subsequently be referred by any Party to arbitration and/or any court of competent jurisdiction.

21.4.4 For the avoidance of doubt, a Test Certificate (whether issued by the Independent Certifier or subsequently determined by the Adjudicator) shall determine the commencement of the Commissioning Period or Services Period (as the case may be) but shall not be final and conclusive evidence that the Facility has been constructed in accordance with the Contract (and in particular Clause 13.1.3) but shall be without prejudice to:

(a) the Authority's rights to levy Deductions pursuant to Schedule 4 (Payment Mechanism) whether or not the reason for such Deductions arose or could have been detected prior to the issue of the Acceptance Certificate;

(b) the Authority's rights and remedies under the Collateral Warranty; and

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40 Words in square brackets may be deleted so that the Certificate is final and binding provided the Authority takes legal advice as to the effect (the issue of the Acceptance Certificate will trigger payment which may not be adequately recompensed under the Independent Certifier appointment). In this regard, Authorities will also need to be cognisant that they will have to rely on the Independent Certifier's professional indemnity cover in the event that the Test Certificate is final and binding.