Common use of DETERMINATION BY AN EXPERT Clause in Contracts

DETERMINATION BY AN EXPERT. (a) If a matter is referred for determination by an Expert pursuant to clause 22.3, an Expert will be appointed by the parties, or in default of agreement upon such appointment within 10 days of the referral, either party may refer the appointment of the Expert to: (1) in the case of financial matters, the President for the time being of the Institute of Chartered Accountants of Australia; (2) in the case of technical matters, the President for the time being of the Institution of Engineers, Australia; and (3) in the case of any other matters (including without limitation a dispute as to the interpretation of this Service Agreement) the President for the time being of the Law Society of Western Australia. In all events, the Expert must have reasonable qualifications and commercial and practical experience in the area of dispute and have no interest or duty which conflicts with his or her function as an Expert. (b) The Expert will be instructed to: (1) promptly fix a reasonable time and place for receiving submissions or information from the parties or from any other persons as the Expert may think fit; (2) accept oral or written submissions from the parties as to the subject matter of the dispute within 20 days of being appointed; (3) not be bound by the rules of evidence; and (4) make a determination in writing with appropriate reasons for that determination within 20 days of the expiry of the period referred to in clause 22.4(b)(2). (c) The Expert will be required to undertake to keep confidential matters coming to the Expert's knowledge by reason of being appointed under this clause 22 and the performance of his or her duties. (d) The Expert will have the following powers: (1) to inform himself or herself independently as to facts and if necessary technical and/or financial matters to which the dispute relates; (2) to receive written submissions sworn and unsworn written statements and photocopy documents and to act upon the same; (3) to consult with such other professionally qualified persons as the Expert in his or her absolute discretion thinks fit; and (4) to take such reasonable measures as he or she thinks fit to expedite the completion of the resolution of the dispute. (e) Any person appointed as an Expert will be deemed not to be an arbitrator but an expert and the law relating to arbitration will not apply to the Expert or the Expert's determination or the procedures by which he or she may reach his or her determination. (f) The dispute resolution will be held in Perth unless the User and GGT otherwise agree. (g) In the absence of manifest error, the decision of the Expert will be valid and binding upon the parties. (h) The costs of the Expert and any advisers appointed pursuant to clause 22.4(d)(3) will be borne by the User or GGT or both as determined in the discretion of the Expert taking into account the Expert's decision in the dispute. (i) The User and GGT will give the Expert all information and assistance that the Expert may reasonably require. The User and GGT will be entitled to be legally represented in respect of any representations that they may wish to make to the Expert, whether orally or in writing.

DETERMINATION BY AN EXPERT. (a) If a matter is referred for determination by an Expert pursuant to clause 22.3, an Expert will be appointed by the parties, or in default of agreement upon such appointment within 10 days of the referral, either party may refer the appointment of the Expert to: (1) in the case of financial matters, the President for the time being of the Institute of Chartered Accountants of Australia; (2) in the case of technical matters, the President for the time being of the Institution of Engineers, Australia; and (3) in the case of any other matters (including without limitation a dispute as to the interpretation of this Service Agreement) the President for the time being of the Law Society of Western Australia. In all events, the Expert must have reasonable qualifications and commercial and practical experience in the area of dispute and have no interest or duty which conflicts with his or her function as an Expert. (b) The Expert will be instructed to: (1) promptly fix a reasonable time and place for receiving submissions or information from the parties or from any other persons as the Expert may think fit; (2) accept oral or written submissions from the parties as to the subject matter of the dispute within 20 days of being appointed; (3) not be bound by the rules of evidence; and (4) make a determination in writing with appropriate reasons for that determination within 20 days of the expiry of the period referred to in clause 22.4(b)(2). (c) The Expert will be required to undertake to keep confidential matters coming to the Expert's knowledge by reason of being appointed under this clause 22 and the performance of his or her duties. (d) The Expert will have the following powers: (1) to inform himself or herself independently as to facts and if necessary technical and/or financial matters to which the dispute relates; (2) to receive written submissions sworn and unsworn written statements and photocopy documents and to act upon the same; (3) to consult with such other professionally qualified persons as the Expert in his or her absolute discretion thinks fit; and (4) to take such reasonable measures as he or she thinks fit to expedite the completion of the resolution of the dispute. (e) Any person appointed as an Expert will be deemed not to be an arbitrator but an expert and the law relating to arbitration will not apply to the Expert or the Expert's determination or the procedures by which he or she may reach his or her determination. (f) The dispute resolution will be held in Perth unless the User and GGT otherwise agree. (g) In the absence of manifest error, the decision of the Expert will be valid and binding upon the parties.parties.‌ (h) The costs of the Expert and any advisers appointed pursuant to clause 22.4(d)(3) will be borne by the User or GGT or both as determined in the discretion of the Expert taking into account the Expert's decision in the dispute. (i) The User and GGT will give the Expert all information and assistance that the Expert may reasonably require. The User and GGT will be entitled to be legally represented in respect of any representations that they may wish to make to the Expert, whether orally or in writing.