(a) (Calculation of relevant Termination Payment): If this Deed is terminated and an Independent Expert is required to administer this Schedule, the parties will appoint an Independent Expert to act as an expert calculator of the relevant Termination Payment within 7 Business Days of:
(i) in the case of section 4, the date on which that section commences to apply; and
(ii) in the case of sections 5 and 6, the Expiry Date,
and the following provisions of clause 49 will apply:
(iii) clause 49.1(b) to clause 49.1(j), as if:
A. the reference in paragraph (b) to "the date on which a Dispute is referred to expert determination under clause 49.1(a)" were a reference to the time referred to in paragraphs (i) and (ii) of this section 2(a), and the reference to "determine the Dispute" were a reference to "calculate a Termination Payment";
B. the references in paragraph (c) to "the 5 Business Day period referred to in clause 49.1(b)" and to "the Dispute is referred to expert determination under clause 49.1(a)" were references to the time referred to in paragraphs (i) and (ii) of this section 2(a), and the reference to "determine the Dispute" were a reference to "calculate a Termination Payment";
C. the references in paragraph (d) to "determine a Dispute" and "determine the Dispute" were references to "calculate a Termination Payment" and the reference to "the party that gave the notice under clause 48.3(a)" were a reference to "the State";
D. paragraph (e) is deleted and replaced with the following "Both parties will procure the President of the Australian Centre for International Commercial Arbitration to nominate a person to act as the expert to calculate a Termination Payment, having regard to, but not being bound by, those persons proposed by the parties under paragraph (b) or paragraph (c) within 7 Business Days after the exchange of lists under paragraph (c).";
E. the reference in paragraph (f) to "determine a Dispute" were a reference to "calculate a Termination Payment" and the reference to "matters in Dispute" were a reference to "role of the Independent Expert as an expert calculator of the relevant Termination Payment";
F. the reference in paragraph (j) to "in respect of the Dispute" were a reference to "in respect of the Termination Payment", and "the terms of the Expert Determination Agreement" were a reference to "terms consistent with section 2 of the Termination Payments Schedule";
(iv) clause 49.2 as if the reference to "the terms of the Expert Determination Agreement" were a reference to "the agreement entered into in accordance with clause 49.1(j)";
(v) clause 49.4 as if the reference to "any Dispute referred to expert determination under this clause 49" were a reference to "any calculation of a Termination Payment"; and
(vi) clause 49.5(a)(ii) as if the reference to "any person who is party to the Dispute" were a reference to "the parties".
(b) (Independent Expert to consider): In calculating a Termination Payment, the Independent Expert may have regard to submissions and information provided by the parties, but must have regard to the matters set out in this Schedule and calculate the Termination Payment as an expert calculator.
(c) (Request for further information): If the Independent Expert decides that further information is required, the Independent Expert may call for further submissions, documents or information from either or both parties and the Independent Expert must provide any information received from one party to the other party.
(d) (Conduct of conferences by Independent Expert): The Independent Expert may call and conduct one or more conferences between the parties as the Independent Expert sees fit, but must give the parties reasonable notice of the matters to be addressed at any such conference.
(e) (Legal representation of parties at conference): The parties may be legally represented at any conference under this section 2.
(f) (Conferences to be held in private): All conferences under this section 2 must be held in private.
(g) (Independent Expert may visit): The Independent Expert may, if he or she considers it necessary, visit the Site, the Works, or the Project Assets (as the case may be), and the parties must facilitate the Independent Expert's access to any of those areas.
(h) (Timing of determination by the Independent Expert): The Independent Expert must make his or her determination in relation to the calculation of the Termination Payment:
(i) within 20 Business Days of the last of the steps set out in paragraphs (c) to (g); or
(ii) within 30 Business Days of the date of his or her appointment,
whichever is the earliest. If the Independent Expert fails to make a determination within this time, either party may refer the matter to dispute resolution in accordance with clauses 48 to 50.
(i) (Independent Expert to act as expert): The Independent Expert will act as an expert and not an arbitrator and may make a decision from his or her own knowledge and expertise.
(j) (Cost of Independent Expert to be borne by State): The cost of the Independent Expert will be borne by the State, but without limiting the State's right to recover those costs as Tender Costs in calculating any Termination Payment.