20  Dispute Resolution

20.1  Any dispute arising in relation to any aspect of this Agreement shall be resolved in accordance with this clause 20.

20.2  If a dispute arises in relation to any aspect of this Agreement, the parties shall consult in good faith in an attempt to come to an agreement in relation to the disputed matter.

20.3  Without prejudice to clause 20.2, and subject to clause 20.4 either of the Authority or the Facility Agent (or, if relevant, the Security Trustee) may give the other notice of its intention to refer the dispute to an Expert for determination (the Notice of Expert Determination).  The Notice of Expert Determination shall include a brief statement of the issue to be referred and the redress sought.

20.4  If a dispute arises in relation to determination of any Accrued Rights Value in accordance with clause 10.14 (Authority's Rights), either of the Authority or the Facility Agent (or, if relevant, the Security Trustee) may refer the dispute directly to the courts of England and Wales for final resolution.  If such a reference is made the parties shall not (unless they agree otherwise) be required to comply with the dispute resolution procedure set out in the remainder of this clause 20.

20.5  The Authority and the Facility Agent (or, if relevant, the Security Trustee) shall attempt to agree the identity of the Expert within five (5) Business Days of the date of issue of the Notice of Expert Determination.  In the event that the Authority and the Facility Agent (or, if relevant, the Security Trustee) cannot agree the identity of the Expert within such period, either of them may request the President for the time being of the Chartered Institute of Arbitrators to nominate a suitable individual, and such individual shall be the Expert for the purposes of this clause 20.  The Expert shall (unless otherwise agreed) be an independent individual with knowledge of and experience in Private Finance Initiative projects.  The party giving the Notice of Expert Determination (the Referring Party) shall send a copy of the Notice of Expert Determination to the Expert as soon as he has been appointed.

20.6  Within five (5) Business Days of the service of the Notice of Expert Determination, or as soon thereafter as the Expert is appointed, the Referring Party shall serve its statement of case (the Referral Notice) on the Expert and the other party (the Responding Party).  The Referral Notice shall include a copy of this Agreement, details of the circumstances giving rise to the dispute as set out in the Notice of Expert Determination, the reasons why the Referring Party is entitled to the redress sought, and the evidence upon which it relies.

20.7  The Responding Party shall serve its statement of case (the Response) on the Expert and the Referring Party within a period of time to be directed by the Expert.  The Response shall include any arguments in response to the Referral Notice and any additional evidence on which the Responding Party relies.

20.8  The Expert shall have absolute discretion as to how to conduct resolution of the dispute, including whether a meeting is necessary.  He shall establish the procedure and timetable subject to any limitation within this Agreement.  He shall act fairly and impartially and may take the initiative in ascertaining the facts and the law.  The parties shall comply with any request or direction of the Expert in relation to resolution of the dispute.

20.9  The Expert shall provide to the Authority and the Facility Agent (or, if relevant, the Security Trustee) his written decision on the dispute within ten (10) Business Days after the date of receipt of the Referral Notice (or such other period as the parties may agree).  The Expert shall state the reasons for his decision.  Unless and until revised, cancelled or varied by the courts of England and Wales, the Expert's decision shall be binding on all parties who shall forthwith give effect to the decision.  

20.10  The Expert's costs shall be borne as the Expert shall specify or, in default, equally by the Authority and the Facility Agent (or, if relevant, the Security Trustee).  Each party shall bear its own costs arising out of the referral, including legal costs and the costs and expenses of any witnesses.

20.11  All information, data or documentation disclosed or delivered by a party to the Expert in consequence of or in connection with his appointment as Expert shall be treated as confidential.  The Expert shall not 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 shall be returned to such party on completion of the Expert's work.

20.12  Either of the Authority or the Facility Agent (or, if relevant, the Security Trustee) may within ninety (90) days of receipt of the Expert's decision give notice to the other of its intention to refer the dispute to the courts of England and Wales for final determination.

20.13  The parties shall continue to comply with, observe and perform all their obligations hereunder regardless of the nature of the dispute and notwithstanding the referral of the dispute for resolution under this clause 20 and shall give effect forthwith to every decision of the Expert and the courts delivered under this clause 20.