Appointment of arbitrator

1. Arbiter will appoint an arbitrator to resolve the Dispute. The Parties agree that the arbitrator will resolve the dispute by a process of

unless the parties agree to vary the process and subject to the ultimate discretion of the arbitrator.

2. The Arbitrator will conduct the Determination in accordance with any other procedural directions necessary which the Arbitrator will seek to agree with the Parties. If they cannot be agreed, the Arbitrator’s directions will prevail.

Submission of data and documents

3. It is the responsibility of the each party to prepare and submit documents and data that the party wishes to be considered in advance of the hearing according to the protocols for data and documents of Arbiter.

4. Documents and data that are not submitted in advance of the hearing shall not be considered. Any party that wishes to adjourn the hearing for the consideration of further documents and/or data shall be permitted to do so only at the discretion of the Arbitrator and on condition of paying the full arbitration fee for the adjourned hearing.

Purpose of arbitrator determination

5. Unless the Parties subsequently agree otherwise, this Determination leads to a decision (“the Decision”) being issued by the Arbitrator. The Decision will be final and binding on the Parties.

Confidentiality

6. The Determination process is neither private nor confidential unless any party states that they wish it to be so. In such a case, The Parties, the Arbitrator and Arbiter will keep it confidential except to the extent that it is necessary in order to implement the Decision or is required by law.

Independence

7. The Arbitrator and Arbiter are independent of the Parties, neutral and impartial, and do not act as advisers to the Parties.

Challenge to the procedure

8. The Parties agree that they are permitted to challenge the Arbitrator’s rulings on issues arising during the procedure including those on the Arbitrator’s own jurisdiction.

Mediation

9. A party (“The proposing party”) is deemed to have proposed arbitration when it instructs Arbiter to invite another party (“The responding party”) to arbitration. Arbiter undertakes to communicate the proposal promptly to the responding Party. Having instructed Arbiter to propose arbitration, a proposing party will not withdraw its instruction save in the event of default by Arbiter. If the parties agree terms of settlement of the Dispute without the responding party having accepted or rejected the proposal, the proposing party will remain liable to pay the fees of the arbitration.

10. The responding party may choose to accept or reject the proposal. If the responding party informs Arbiter that it rejects the proposal, Arbiter will inform the proposing party of the rejection. If the rejection is communicated directly to the proposing party, the proposing party will inform Arbiter of the rejection. If the invitation is rejected, neither party will be liable to pay the fees of arbitration.

11. Upon the responding party accepting the invitation, the arbitration process is deemed to have commenced and the parties will both be bound by contract with Arbiter to pay the cost of arbitration to Arbiter upon the conclusion of the arbitration process whether concluded by arbitration or negotiation or mediation.

Mediation and settlement meetings

12. Arbiter will convey offers of settlement between the parties, if so instructed.

13. Arbiter will provide the representatives of the parties opportunity to meet in advance of the hearing (typically on the morning of the hearing) with a view to negotiating settlement.

14. Settlements that are reached between the parties by negotiation under paragraphs 12 and 13 will be recorded at the arbitration hearing as binding arbitrations by consent.

Reasons in the decision

15. The Decision of the Arbitrator shall include reasons in summary form only unless the Arbitrator in his discretion chooses to give full reasons for his decision.

Interest

16. The Arbitrator is empowered to award interest as part of the Decision.

Fees and expenses

17. Unless the Parties agree otherwise, the fees and expenses of the Arbitrator Determination will be borne by the party deemed to be the losing party as defined in the schedule annexed hereto.

18. A final account of the fees and expenses will be sent to the losing Parties by Arbiter following the Decision.

Implementation of the decision

19. The Parties agree to implement the Decision within 21 days of its being published to them.

Challenge to the decision

20. The Parties agree they are permitted to challenge the Decision in any legal proceedings or otherwise.

No liability

21. The Parties expressly acknowledge that neither the Arbitrator nor Arbiter shall be liable to the Parties for any act or omission whatsoever in connection with this Arbitrator Determination.

Role of Arbiter

22. Arbiter appoints the Arbitrator. The Arbitrator is responsible for the procedure from then on. Arbiter may be consulted by any of the Parties to this Agreement in case of difficulty. Should the Arbitrator be unable to complete the task, Arbiter will appoint a substitute Arbitrator within a reasonable time.

After the decision

23. None of the Parties will call the Arbitrator or Arbiter (or any employee, consultant, officer or representative of Arbiter) as a witness, consultant, or arbitrator in any litigation or arbitration in relation to the Dispute and the Arbitrator and Arbiter will not act voluntarily in any such capacity without the written agreement of all the Parties.

Law and jurisdiction

24. The Agreement shall be governed by English law and under the jurisdiction of the English courts. All the Parties to this Agreement agree to refer any dispute arising in connection with it to mediation first.

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Schedule

Definition of “Successful Party” and “Losing Party”

1. When the Claiming Party completes the Arbitration request or response, they are asked to indicate the sum that they are prepared to accept. If no sum is entered, the Claiming Party will be deemed to claim the full stated amount on any invoice that is subject to Arbitration. 
2. When the Defending Party completes the Arbitration request or response, they are asked to indicate the sum that they are prepared to offer. If no sum is entered, the Defending Party will be deemed to offer a nil sum. 
3. The cost of the arbitration depends on the stage that the arbitration reaches before an agreement is reached or the matter is arbitrated.  
4. The liability to pay depends on when an offer is made and when it is accepted.  
5. The general rule is "loser pays" for escalation of the matter beyond a point where an offer is made that could have been accepted.  The table below shows the different scenarios of which party pays for the arbitration in each case.
6. If, at any time after the parties have both agreed to arbitrate, the parties agree to settle for a sum greater than that previously offered by the defending party or the arbitrator makes a decision that the sum due to the Claiming party is greater than the sum offered by the Defending Party, the Claiming Party will be deemed to have been successful at the stage the offer was made and could have been accepted and the Defending Party will, as losing party, pay to Arbiter the appropriate fee for the Arbitration at that stage.
7. If, at any time after the parties have both agreed to arbitrate, the parties agree to settle for a sum less than or equal to that offered by the defending party at that stage or the arbitrator makes a decision that the sum due to the Claiming party is less than or equal to that offered by the Defending Party at that stage, the Defending Party will be deemed to have been successful at that stage and the Claiming Party will, as losing party, pay to Arbiter the appropriate fee for that stage of the arbitration the Arbitration.