(a) (Referral to expert determination): If a Dispute:
(i) remains unresolved (in whole or in part) within 10 Business Days after the date on which the notice under clause 48.3(a) is received or such later date as the parties may agree; and
(ii) either clause 48.1 applies or the parties agree to refer the Dispute to expert determination under clause 48.1(e)(ii)A,
then if a party wants to pursue the Dispute, that party must refer the Dispute to expert determination within 20 Business Days after the date on which the notice under clause 48.3(a) is received or such later date as the parties may agree.
(b) (Agreement): Within 5 Business Days after the date on which a Dispute is referred to expert determination under clause 49.1(a), the State and Project Co must endeavour to agree on the expert to be appointed to determine the Dispute.
(c) (Exchange of lists of 3 preferred experts): If the State and Project Co are unable to agree on an expert to determine the Dispute within the 5 Business Day period referred to in clause 49.1(b), the State and Project Co must exchange lists of 3 persons (in order of preference) who, if appointed, would satisfy the requirements of clause 49.1(f) on or before the date which is 10 Business Days after the date on which the Dispute is referred to expert determination under clause 49.1(a).
(d) (Appointment of person who appears on both lists): If:
(i) a person appears on both lists under clause 49.1(c), that person will be deemed to be the expert to determine a Dispute; or
(ii) more than one person appears on both lists, the person given the highest order of priority by the party that gave the notice under clause 48.3(a) will be deemed to be the expert to determine the Dispute.
(e) (Appointment if no person appears on both lists): If no person appears on both lists, the party that gave the notice under clause 48.3(a) must procure:
(i) the president (or the senior non-executive officer, howsoever described) of the institute or governing body for the technical or professional discipline that is the subject of the relevant Dispute to nominate the expert, having regard to, but not being bound by, those persons proposed by the parties under clause 49.1(c); or
(ii) if:
A. there is no governing body for the technical or professional discipline that is the subject of the relevant Dispute;
B. such governing body advises that it will not nominate an expert; or
C. there are multiple technical or professional disciplines that are the subject of the Dispute,
the President of the Australian Centre for International Commercial Arbitration to nominate a person to act as the expert, having regard to, but not being bound by, those persons proposed by the parties under clause 49.1(c),
within 7 Business Days after the exchange of the lists under clause 49.1(c).
(f) (Appropriate skills): It is the intention of the parties that the expert appointed to determine a Dispute will be an independent person with appropriate skills having regard to the nature of the matters in Dispute.
(g) (No entitlement to challenge appointment): Neither party will be entitled to challenge the appointment of an expert under this clause 49.1 on the basis that the expert does not satisfy the requirements of clause 49.1(f).
(h) (No conflict of interest): An expert agreed or determined in this clause 49.1 appointed by the parties cannot have any conflict of interest or any relationship with either party or their Associates that a reasonable person may regard as giving rise to the possibility of bias.
(i) (Not an arbitration agreement): Any agreement for expert determination under this Deed will not constitute an arbitration agreement including for the purposes of the Commercial Arbitration Act 2011 (Vic).
(j) (Agreement): Within 7 Business Days after the expert has notified the State and Project Co that they are available to be appointed as the expert in respect of the Dispute, the State and Project Co must enter into an agreement with the expert on the terms of the Expert Determination Agreement or such other terms as the expert may reasonably require.
(k) (Expert not available) If an expert agreed between the parties or otherwise deemed or determined to be appointed in respect of the Dispute under clause 49.1(b), 49.1(d) or clause 49.1(e) is not available to be appointed as the expert for that Dispute, the parties must appoint a different expert by repeating the process in clause 49.1 save that, if the parties have already exchanged a list of 3 persons in accordance with clause 49.1(c) and there is another expert who appears on both lists, the person given the next highest order of priority by the party that gave the notice under clause 48.3(a) will be deemed to be the expert.