IN COMMERCIAL CONFIDENCE
Lancashire Superfast Broadband Project
SCHEDULE 6.3
DISPUTE RESOLUTION
PROCEDURE
Schedule 6.3: Dispute Resolution Procedure
325
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CONTENTS
1
BACKGROUND
327
2
NOTICE OF DISPUTE
327
3
COMMERCIAL NEGOTIATIONS
328
4
MEDIATION
329
5
ARBITRATION
333
6
URGENT RELIEF
334
Schedule 6.3: Dispute Resolution Procedure
326
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IN COMMERCIAL CONFIDENCE
SCHEDULE 6.3 – DISPUTE RESOLUTION PROCEDURE
1.
BACKGROUND
This Schedule 6.3 sets out the Dispute Resolution Procedure for the
purpose of this Contract.
2.
NOTICE OF DISPUTE
2.1
The Dispute Resolution Procedure shall commence with the service of
a Notice of Dispute by either Party on the other Party.
2.2
The Notice of Dispute shall:
2.2.1
set out the material particulars of the Dispute;
2.2.2
set out the reasons why the Party serving the Notice of Dispute
believes that the Dispute has arisen;
2.2.3
subject to paragraph
2.6, elect whether the Dispute should be
dealt with under the Standard Dispute Resolution Timetable or
the Expedited Dispute Resolution Timetable; and
2.2.4
if the Party serving the Notice of Dispute believes that the
Dispute should be dealt with under the Expedited Dispute
Resolution Timetable, explain the reason why.
2.3
Unless agreed otherwise in writing, the Parties shall continue to comply
with their respective obligations under this Contract regardless of the
nature of the Dispute and notwithstanding the referral of the Dispute to
the Dispute Resolution Procedure.
2.4
Subject to paragraph
3.5, the Parties shall seek to resolve Disputes
firstly by commercial negotiation (in accordance with paragraph
3), then
by mediation (in accordance with paragraph
4) and lastly subject to
paragraph 4.11, by recourse to arbitration (in accordance with
paragraph
5) or litigation if either Party seeks urgent injunctive relief.
2.5
The time periods set out in the Dispute Resolution Timetable shall apply
to all Disputes unless the Parties agree that an alternative timetable
should apply in respect of a specific Dispute.
2.6
The Parties may only agree to use the Expedited Dispute Resolution
Timetable in exceptional circumstances where the use of the Standard
Dispute Resolution Timetable would be unreasonable, including (by
way of example) where one Party would be materially disadvantaged by
a delay in resolving the Dispute. If the Parties are unable to reach
agreement on the use of the Expedited Dispute Resolution Timetable
within five (5) Working Days of the issue of the Notice of Dispute then
the use of this timetable shall be at the sole discretion of the Authority.
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2.7
If at any point it becomes clear that an applicable deadline set out in the
Dispute Resolution Timetable cannot be met or has passed, the Parties
may agree in writing to extend the deadline. Any agreed extension
shall have the effect of delaying start of the subsequent stages set out
in the Dispute Resolution Timetable by the period agreed in the
extension.
3.
COMMERCIAL NEGOTIATIONS
3.1
Subject to paragraph
3.5, the Parties shall use reasonable endeavours
to settle any Dispute between them as soon as possible through
commercial negotiation conducted in good faith and in accordance with
the procedure set out in this paragraph
3.
3.2
The Parties shall refer the Dispute to the Level 1 representatives set out
in the table below, who shall meet as soon as practicable after the
service of the Notice of Dispute but in any event within ten (10)
Working Days.
3.3
If the Dispute cannot be resolved by the Level 1 representatives within
the relevant time period specified in the Dispute Resolution Timetable,
or within any other period agreed by the Parties, the Dispute shall be
referred to the Level 2 representatives set out in the table below for
resolution, who shall meet within ten (10) Working Days after such
referral, or such other period as the Parties may agree, in order to
attempt to resolve the Dispute.
Level
For the Authority
For the Partner
Level 1
Authority Representative
Partner Representative
Level 2
The
Authority's
Chief The Partner's Programme
Executive
Sponsor – Corporate
Director
3.4
Any resolution reached during commercial negotiations shall not be
legally binding until it has been documented in writing and signed by, or
on behalf of, the Parties and in accordance with the Change Control
Procedure where changes to this Contract are required.
3.5
If either Party is of the reasonable opinion that the resolution of a
Dispute by commercial negotiation, or the continuance of commercial
negotiations, shall not result in an appropriate solution or that the
Parties have already held discussions of a nature and intent (or
otherwise conducted in the spirit) that would equate to the conduct of
commercial negotiations in accordance with this paragraph
3, that Party
shall serve a written notice to that effect and the Parties shall proceed
to mediation in accordance with paragraph
4.
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4.
MEDIATION
4.1
In the event that a Dispute between the Parties cannot be resolved by
commercial negotiation in accordance with paragraph
3 the Parties
shall attempt to resolve it in accordance with CEDR's model mediation
procedure.
4.2
If the Parties are unable to agree on the joint appointment of a Mediator
within the timescale specified in the applicable section of the Dispute
Resolution Timetable, they shall make a joint application to CEDR to
nominate the Mediator.
4.3
The Parties shall use all reasonable endeavours to ensure that the
Mediator, after consultation with the Parties where appropriate, shall:
4.3.1
attend any meetings with either or both of the Parties preceding
the mediation, if requested or if the Mediator decides this is
appropriate and the Parties agree;
4.3.2
read before the mediation each Case Summary and all the
documents sent to him;
4.3.3
chair, and determine the procedure for the mediation;
4.3.4
assist the Parties in drawing up any written settlement
agreement; and
4.3.5
abide by the terms of CEDR's model mediation procedure and
CEDR's code of conduct for mediators.
4.4
The Parties shall ensure that the Mediator (and any member of the
Mediator's firm or company) shall not act for either of the Parties
individually in connection with the Dispute in any capacity during the
Term. The Parties accept that in relation to the Dispute neither the
Mediator nor CEDR is an agent of, or acting in any capacity for, any of
the Parties. Furthermore, the Parties and the Mediator accept that the
Mediator (unless an employee of CEDR) is acting as an independent
contractor and not as an agent or employee of CEDR.
4.5
CEDR
4.5.1
The parties shall ensure that CEDR, in conjunction with the
Mediator, shall make the necessary arrangements for the
mediation including, as necessary:
(a)
nominating, and obtaining the agreement of the Parties
to, the Mediator;
(b)
organising a suitable venue and dates;
(c)
organising exchange of the Case Summaries and
documents;
Schedule 6.3: Dispute Resolution Procedure
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(d)
meeting with either or both of the Parties (and the
Mediator if appointed), either together or separately, to
discuss any matters or concerns relating to the
mediation; and
(e)
general administration in relation to the mediation.
4.5.2
If there is any issue about the conduct of the mediation upon
which the Parties cannot agree within a reasonable time, CEDR
shall, at the request of any Party, decide the issue for the
Parties, having consulted with them.
4.5.3
The Parties agree to notify the Mediator that they wish to
observe the relevant timescales agreed in the Dispute
Resolution Timetable.
4.6
Participants
4.6.1
Each Party shall state the names of:
(a)
the person(s) who shall be the lead negotiator(s) for
that Party, who must have full authority to settle the
Dispute for the purpose of the Mediation; and
(b)
any other person(s) (such as professional advisers,
colleagues or subcontractors) who shall also be present
at, and/or participating in, the mediation on that Party's
behalf.
4.7
Exchange of Information
4.7.1
Each Party shall send to CEDR at least two (2) weeks before
the mediation, or such other date as may be agreed between
the Parties and CEDR, sufficient copies of:
(a)
its Case Summary; and
(b)
all the documents to which the Case Summary refers
and any others to which it may want to refer in the
mediation.
4.7.2
In addition, each Party may send to the Mediator (through
CEDR) and/or bring to the mediation further documentation
which it wishes to disclose in confidence to the Mediator but not
to any other Party, clearly stating in writing that such
documentation is confidential to the Mediator and CEDR.
4.7.3
The Parties shall procure that the Mediator shall be responsible
for sending a copy of each Party's Case Summary and
supporting documents (pursuant to paragraph
4.7.1) to the
other simultaneously.
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4.7.4
The Parties should seek to agree:
(a)
the maximum number of pages of each Case Summary;
and
(b)
a joint set of supporting documents or the maximum
length of each set of supporting documents.
4.8
The Mediation
4.8.1
The mediation shall take place at the time and place arranged
by CEDR. The Parties agree to request that CEDR arrange the
time and place for the mediation within the timescale specified
in the applicable section of the Dispute Resolution Timetable. If
the mediation cannot be arranged within the relevant timescale
the Parties shall treat the delay as though they had agreed an
extension to the Dispute Resolution Timetable in accordance
with paragraph
2.7.
4.8.2
The Parties shall procure that the Mediator shall chair, and
determine the procedure at, the mediation.
4.8.3
No recording or transcript of the mediation shall be made.
4.8.4
The Parties agree to notify CEDR that the maximum duration
for the mediation meeting shall be as set out in the applicable
section of the Dispute Resolution Timetable.
4.9
Settlement Agreement
Any settlement reached in the mediation shall not be legally binding
until it has been reduced to writing and signed by, or on behalf of, the
Parties and in accordance with the Change Control Procedure where
changes are required to this Contract. In any event any settlement
agreement must be finalised within the timescales specified in the
Dispute Resolution Timetable unless the Parties agree an extension to
the Dispute Resolution Timetable in accordance with paragraph
2.7 or
the timetable is otherwise extended by operation of paragraph
4.8.1. The Parties shall procure that the Mediator shall assist the Parties in
recording the outcome of the mediation.
4.10
Termination
4.10.1 The mediation shall terminate when:
(a)
a Party withdraws from the mediation;
(b)
a written settlement agreement is concluded;
(c)
the Mediator decides that continuing the mediation is
unlikely to result in a settlement; or
Schedule 6.3: Dispute Resolution Procedure
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(d)
the Mediator decides he should retire for any of the
reasons in CEDR's code of conduct.
4.11
No Stay of Proceedings
Any litigation [or arbitration] in relation to the Dispute may be
commenced or continued notwithstanding the mediation unless the
Parties agree otherwise or a court so orders.
4.12
Confidentiality
4.12.1 The Parties shall ensure that every person involved in the
mediation shall keep confidential and not use for any collateral
or ulterior purpose:
(a)
information that the mediation is to take place or has
taken place, other than to inform a court dealing with
any litigation relating to the Dispute of that information;
and
(b)
all information (whether given orally, in writing or
otherwise) arising out of, or in connection with, the
mediation including the fact of any settlement and its
terms.
4.12.2 All information (whether oral or documentary and on any media)
arising out of, or in connection with, the mediation shall be
without prejudice, privileged and not admissible as evidence or
disclosable in any current or subsequent litigation or other
proceedings whatsoever. This does not apply to any
information, which would have been admissible or disclosable
in any such proceedings but for its use in the mediation.
4.12.3 Paragraphs
4.12.1 and
4.12.2 shall not apply insofar as any
such information is necessary to implement and enforce any
settlement agreement arising out of the mediation.
4.12.4 Neither Party to the mediation shall call the Mediator or CEDR
(or any employee, consultant, officer or representative of
CEDR) as a witness, consultant, arbitrator or expert in any
litigation or other proceedings whatsoever. The Parties shall
procure that the Mediator and CEDR shall not voluntarily act in
any such capacity without the written agreement of the Parties.
4.13
Mediator's fees and expenses
4.13.1 CEDR's fees (which include the Mediator's fees) and the other
expenses of the mediation shall be borne equally by the
Parties. Payment of these fees and expenses shall be made to
CEDR in accordance with its fee Schedule and terms and
conditions of business.
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4.13.2 Each Party shall bear its own costs and expenses of its
participation in the mediation.
4.14
Exclusion of Liability
Neither the Mediator nor CEDR shall be liable to the Parties for any act
or omission in connection with the services provided by them in, or in
relation to, the mediation, unless the act or omission is shown to have
been in bad faith.
5.
ARBITRATION
5.1
The Parties may at any time before court proceedings are commenced
agree that the Dispute should be referred to arbitration in accordance
with the provisions of paragraph
5.4.
5.2
Before the Partner may commence any court proceedings it shall serve
written notice on the Authority of its intention and the Authority shall
have 15 Working Days from receipt of the Partner's notice in which to
reply requesting the Dispute be referred to arbitration in accordance
with the provisions in paragraph
5.4.
5.3
In its notice to the Authority pursuant to paragraph
5.2, the Partner may
request that the Dispute is referred to arbitration, to which the Authority
may, in its sole discretion consent.
5.4
If a Dispute is referred to arbitration the Parties shall comply with the
following provisions:
5.4.1
the arbitration shall be governed by the provisions of the
Arbitration Act 1996 and the LCIA procedural rules in force at
the Effective Date shall be applied;
5.4.2
the decision of the arbitrator shall be binding on the Parties (in
the absence of any material failure by the arbitrator to comply
with the LCIA procedural rules);
5.4.3
subject to paragraph
5.4.4, the tribunal shall consist of a sole
arbitrator to be agreed by the Parties and in the event that the
Parties fail to agree the appointment of the arbitrator within ten
(10) Working Days or, if the person appointed is unable or
unwilling to act, as appointed by the LCIA;
5.4.4
if the Dispute is of a complex nature, the Parties may agree, or
the Authority at its sole discretion may direct, that the tribunal
shall consist of three (3) arbitrators, to be agreed by the Parties
and in the event that the Parties fail to agree the appointment of
the arbitrators within ten (10) Working Days or, if the persons
appointed are unable or unwilling to act, as appointed by the
LCIA;
5.4.5
the seat of the arbitration shall be England;
Schedule 6.3: Dispute Resolution Procedure
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5.4.6
the language of the arbitration shall be English; and
5.4.7
the arbitration proceedings shall take place in London or other
location in England as determined by the Authority.]
6.
URGENT RELIEF
Nothing in this Schedule 6.3 shall prevent either Party from seeking
injunctive relief at any time.
Schedule 6.3: Dispute Resolution Procedure
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APPENDIX – DISPUTE RESOLUTION TIMETABLE
Disputes shall be escalated in accordance with the following timetable:
Standard
Expedited
Dispute
Dispute
Stage
Resolution
Resolution
Timetable
Timetable
Time permitted for resolution of the ten (10) Working
three (3)
Dispute by the Level 1 representatives Days
Working Days
pursuant to paragraph
3.2 of this
Schedule 6.3 from the date of
reference to them
Time permitted for resolution of the 15 Working Days
five (5) Working
Dispute by the Level 2 representatives
Days
pursuant to paragraph
3.3 of this
Schedule 6.3 from the date of
reference to them
Period of time in which Dispute is to be ten (10) Working
five (5) Working
referred to mediation in accordance Days
Days
with paragraph
4.1 from the date of the
expiry
of
the
period
set
out
immediately above
Period of time permitted in paragraph ten (10) Working
five (5) Working
4.2 of this Schedule 6.3 to agree the Days
Days
appointment of the Mediator
Period of time in which Mediator may 30 Working Days
20 Working
convene the mediation meeting from
Days
the date of appointment in accordance
with paragraph
4.8.1 of this Schedule
6.3
Maximum
duration
of
mediation three (3) Working one (1) Working
meeting in accordance with paragraph Days
Day
4.8.4 of this Schedule 6.3
Period of time in which the mediation ten (10) Working
five (5) Working
settlement is to be recorded in writing Days
Days
and
signed
by
the
Parties
in
accordance with paragraph
4.9 of this
Schedule 6.3
Schedule 6.3: Dispute Resolution Procedure
335