ADR and Binding Arbitration Procedures. If a Dispute arises, the following procedures shall be implemented: (a) Any party to this Agreement may at any time invoke the dispute resolution procedures set forth in this Appendix A as to any Dispute by providing written notice of such action to the other party or parties to the Dispute, who within five Business Days after such notice shall schedule a meeting to be held in Houston, Texas between the parties. The meeting shall occur within 10 Business Days after notice of the meeting is delivered to the other party or parties. The meeting shall be attended by representatives of each party having decision-making authority regarding the Dispute as well as the dispute resolution process and who shall attempt in a commercially reasonable manner to negotiate a resolution of the Dispute. (b) The representatives of the parties shall cooperate in a commercially reasonable manner and shall explore whether techniques such as mediation, minitrials, mock trials or other techniques of alternative dispute resolution might be useful. In the event that a technique of alternative dispute resolution is so agreed upon, a specific timetable and completion date for its implementation shall also be agreed upon. The representatives will continue to meet and discuss settlement until the date (the "Interim Decision Date") that is the earliest to occur of the following events: (i) an agreement shall be reached by the parties resolving the Dispute; (ii) one of the parties shall determine and notify the other party in writing that no agreement resolving the Dispute is likely to be reached; (iii) if a technique of alternative dispute resolution is agreed upon, the completion date therefor shall occur without the parties having resolved the Dispute; or (iv) if another technique of alternative dispute resolution is not agreed upon, two full meeting days (or such other time period as may be agreed upon) shall expire without the parties having resolved the Dispute. (c) If, as of the Interim Decision Date, the parties have not succeeded in negotiating a resolution of the dispute pursuant to subsection (b), the parties shall proceed under subsections (d), (e) and (f). (d) After satisfying the requirements above, such Dispute shall be submitted to mandatory and binding arbitration at the election of any party involved in the Dispute (the "Disputing Party"). The arbitration shall be subject to the Federal Arbitration Act as supplemented by the conditions set forth in this Appendix. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date the notice of arbitration is served, other than as specifically modified herein. In the absence of an agreement to the contrary, the arbitration shall be held in Houston, Texas. The Arbitrator (as defined below) will allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. During the pendency of the Dispute, each party shall make available to the Arbitrator and the other parties all books, records and other information within its control requested by the other parties or the Arbitrator subject to the confidentiality provisions contained herein, and provided that no such access shall waive or preclude any objection to such production based on any privilege recognized by law. Recognizing the express desire of the parties for an expeditious means of dispute resolution, the Arbitrator may limit the scope of discovery between the parties as may be reasonable under the circumstances. In deciding the substance of the parties' claims, the laws of the State of Delaware shall govern the construction, interpretation and effect of this Agreement (including this Appendix) without giving effect to any conflict of law principles. The arbitration hearing shall be commenced promptly and conducted expeditiously, with each party involved in the Dispute being allocated an equal amount of time for the presentation of its case. Unless otherwise agreed to by the parties, the arbitration hearing shall be conducted on consecutive days. Time is of the essence in the arbitration proceeding, and the Arbitrator shall have the right and authority to issue monetary sanctions against any of the parties if, upon a showing of good cause, that party is unreasonably delaying the proceeding. To the fullest extent permitted by law, the arbitration proceedings and award shall be maintained in confidence by the Arbitrator and the parties. (e) The Disputing Party shall notify the American Arbitration Association ("AAA") and the other parties involved in the Dispute in writing describing in reasonable detail the nature of the Dispute (the "Dispute Notice"). The arbitrator (the "Arbitrator") shall be selected within 15 days of the date of the Dispute Notice by all of the parties from the members of a panel of arbitrators of the AAA or, if the AAA fails or refuses to provide a list of potential arbitrators, of the Center for Public Resources and shall be experienced in commercial arbitration. In the event that the parties are unable to agree on the selection of the Arbitrator, the AAA shall select the Arbitrator, using the criteria set forth in this Appendix, within 30 days of the date of the Dispute Notice. In the event that the Arbitrator is unable to serve, his or her replacement will be selected in the same manner as the Arbitrator to be replaced. The Arbitrator shall be neutral. The Arbitrator shall have the authority to assess the costs and expenses of the arbitration proceeding (including the arbitrators', and attorneys' fees and expenses) against any or all parties. (f) The Arbitrator shall decide all Disputes and all substantive and procedural issues related thereto, and shall enforce this Agreement in accordance with its terms. Without limiting the generality of the previous sentence, the Arbitrator shall have the authority to issue injunctive relief; however, the Arbitrator shall not have any power or authority to (i) award consequential, incidental, indirect or punitive damages or (ii) amend this Agreement. The Arbitrator shall render the arbitration award, in writing, within 20 days following the completion of the arbitration hearing, and shall set forth the reasons for the award. In the event that the Arbitrator awards monetary damages in favor of either party, the Arbitrator must certify in the award that no indirect, consequential, incidental, indirect or punitive damages are included in such award. If the Arbitrator's decision results in a monetary award, the interest to be granted on such award, if any, and the rate of such interest shall be determined by the Arbitrator in his or her discretion. The arbitration award shall be final and binding on the parties, and judgment thereon may be entered in any court of competent jurisdiction, and may not be appealed except to the extent permitted by the Federal Arbitration Act.
Appears in 6 contracts
Sources: Millennium Asset Contribution Agreement (Equistar Funding Corp), Asset Contribution Agreement (Millennium Chemicals Inc), Asset Contribution Agreement (Equistar Funding Corp)
ADR and Binding Arbitration Procedures. If a Dispute arises, the following procedures shall be implemented:implemented (with references to “Partners” meaning the Partners involved in the Dispute):
(a) Any party to this Agreement Partner may at any time invoke the dispute resolution procedures set forth in this Appendix A as to any Dispute by providing written notice of such action to the other party or parties to Secretary of the DisputePartnership, who within five Business Days after such notice shall schedule a meeting to be held in Houston, Texas between the partiesPartners. The Partners’ meeting shall occur within 10 Business Days after notice of the meeting is delivered to the other party or partiesPartners. The meeting shall be attended by representatives of each party Partner having decision-making authority regarding the Dispute as well as the dispute resolution process and who shall attempt in a commercially reasonable manner to negotiate a resolution of the Dispute.
(b) The representatives of the parties Partners shall cooperate in a commercially reasonable manner and shall explore whether techniques such as mediation, minitrials, mock trials or other techniques of alternative dispute resolution might be useful. In the event that a technique of alternative dispute resolution is so agreed upon, a specific timetable and completion date for its implementation shall also be agreed upon. The representatives will continue to meet and discuss settlement until the date (the "“Interim Decision Date"”) that is the earliest to occur of the following events: (i) an agreement shall be reached by the parties Partners resolving the Dispute; (ii) one of the parties Partners shall determine and notify the other party Partners in writing that no agreement resolving the Dispute is likely to be reached; (iii) if a technique of alternative dispute resolution is agreed upon, the completion date therefor shall occur without the parties Partners having resolved the Dispute; or (iv) if another technique of alternative dispute resolution is not agreed upon, two full meeting days (or such other time period as may be agreed upon) shall expire without the parties Partners having resolved the Dispute.
(c) If, as of the Interim Decision Date, the parties Partners have not succeeded in negotiating a resolution of the dispute Dispute pursuant to subsection (b), the parties Partners shall proceed under subsections (d), (e) and (f).
(d) After satisfying the requirements above, such Dispute shall be submitted to mandatory and binding arbitration at the election of any party Partner involved in the Dispute (the "“Disputing Party"Partner”). The arbitration shall be subject to the Federal Arbitration Act as supplemented by the conditions set forth in this Appendix. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date the notice of arbitration is served, other than as specifically modified herein. In the absence of an agreement to the contrary, the arbitration shall be held in Houston, Texas. The Arbitrator (as defined below) will allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. During the pendency of the Dispute, each party Partner shall make available to the Arbitrator and the other parties Partners all books, records and other information within its control requested by the other parties Partners or the Arbitrator subject to the confidentiality provisions contained herein, and provided that no such access shall waive or preclude any objection to such production based on any privilege recognized by law. Recognizing the express desire of the parties Partners for an expeditious means of dispute resolution, the Arbitrator may limit the scope of discovery between the parties Partners as may be reasonable under the circumstances. In deciding the substance of the parties' Partners’ claims, the laws of the State of Delaware shall govern the construction, interpretation and effect of this Agreement (including this Appendix) without giving effect to any conflict of law principles. The arbitration hearing shall be commenced promptly and conducted expeditiously, with each party Partner involved in the Dispute being allocated an equal amount of time for the presentation of its case. Unless otherwise agreed to by the partiesPartners, the arbitration hearing shall be conducted on consecutive days. Time is of the essence in the arbitration proceeding, and the Arbitrator shall have the right and authority to issue monetary sanctions against any of the parties Partners if, upon a showing of good cause, that party Partner is unreasonably delaying the proceeding. To the fullest extent permitted by law, the arbitration proceedings and award shall be maintained in confidence by the Arbitrator and the partiesPartners.
(e) The Disputing Party Partner shall notify the American Arbitration Association ("“AAA"”) and the other parties involved in the Dispute Partners in writing describing in reasonable detail the nature of the Dispute (the "“Dispute Notice"”). The arbitrator (the "“Arbitrator"”) shall be selected within 15 days of the date of the Dispute Notice by all of the parties Partners from the members of a panel of arbitrators of the AAA or, if the AAA fails or refuses to provide a list of potential arbitrators, of the Center for Public Resources and shall be experienced in commercial arbitration. In the event that the parties Partners are unable to agree on the selection of the Arbitrator, the AAA shall select the Arbitrator, using the criteria set forth in this Appendix, within 30 days of the date of the Dispute Notice. In the event that the Arbitrator is unable to serve, his or her replacement will be selected in the same manner as the Arbitrator to be replaced. The Arbitrator shall be neutral. The Arbitrator shall have the authority to assess the costs and expenses of the arbitration proceeding (including the arbitrators'’, and attorneys' ’ fees and expenses) against any or all partiesPartners.
(f) The Arbitrator shall decide all Disputes and all substantive and procedural issues related thereto, and shall enforce this Agreement in accordance with its terms. Without limiting the generality of the previous sentence, the Arbitrator shall have the authority to issue injunctive relief; however, the Arbitrator shall not have any power or authority to (i) award consequential, incidental, indirect or punitive damages or (ii) amend this Agreement. The Arbitrator shall render the arbitration award, in writing, within 20 days following the completion of the arbitration hearing, and shall set forth the reasons for the award. In the event that the Arbitrator awards monetary damages in favor of either party, the Arbitrator must certify in the award that no indirect, consequential, incidental, indirect or punitive damages are included in such award. If the Arbitrator's ’s decision results in a monetary award, the interest to be granted on such award, if any, and the rate of such interest shall be determined by the Arbitrator in his or her discretion. The arbitration award shall be final and binding on the partiesPartners, and judgment thereon may be entered in any court of competent jurisdiction, and may not be appealed except to the extent permitted by the Federal Arbitration Act.
Appears in 4 contracts
Sources: Limited Partnership Agreement (Millennium Chemicals Inc), Limited Partnership Agreement (Millennium Chemicals Inc), Limited Partnership Agreement (Equistar Chemicals Lp)
ADR and Binding Arbitration Procedures. If a Dispute arises, the following procedures shall be implemented:
(a) Any party to this Agreement The Indemnifying Party may at any time invoke the dispute resolution procedures set forth in this Appendix A as to any Dispute by providing written notice of such action to the other party or parties to the DisputeIndemnified Party, who within five Business Days after such notice shall schedule a meeting to be held in Houston, Texas between the parties. The meeting shall occur within 10 Business Days after notice of the meeting is delivered to the other party or partiesIndemnifying Party. The meeting shall be attended by representatives of each party having decision-making authority regarding the Dispute as well as the dispute resolution process and who shall attempt in a commercially reasonable manner to negotiate a resolution of the Dispute.
(b) The representatives of the parties shall cooperate in a commercially reasonable manner and shall explore whether techniques such as mediation, minitrials, mock trials or other techniques of alternative dispute resolution might be useful. In the event that a technique of alternative dispute resolution is so agreed upon, a specific timetable and completion date for its implementation shall also be agreed upon. The representatives will continue to meet and discuss settlement until the date (the "Interim Decision Date") that is the earliest to occur of the following events: (i) an agreement shall be reached by the parties resolving the Dispute; (ii) one of the parties shall determine and notify the other party in writing that no agreement resolving the Dispute is likely to be reached; (iii) if a technique of alternative dispute resolution is agreed upon, the completion date therefor shall occur without the parties having resolved the Dispute; or (iv) if another technique of alternative dispute resolution is not agreed upon, two full meeting days (or such other time period as may be agreed upon) shall expire without the parties having resolved the Dispute.
(c) If, as of the Interim Decision Date, the parties have not succeeded in negotiating a resolution of the dispute pursuant to subsection (b), the parties shall proceed under subsections subsection (d), (e) and (f).
(d) After satisfying The parties shall jointly appoint a Neutral. If the requirements aboveparties have been unable to agree upon such appointment within 30 days after the Interim Decision Date, then such Dispute Neutral, upon the application of either of the parties shall be submitted to mandatory and binding arbitration at appointed within 10 days of the election filing of any party involved in the Dispute (the "Disputing Party"). The arbitration shall be subject to the Federal Arbitration Act as supplemented such application by the conditions set forth in this Appendix. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of Center for Public Resources, or if such appointment is not so made promptly then promptly thereafter by the American Arbitration Association in effect on Philadelphia, Pennsylvania, or if such appointment is not so made promptly then promptly thereafter by the date senior United States District Court judge sitting in Wilmington, Delaware. The fees of the notice of arbitration is served, other than as specifically modified herein. In the absence of an agreement to the contrary, the arbitration Neutral shall be held in Houston, Texas. The Arbitrator (as defined below) will allow reasonable discovery in the forms permitted paid equally by the Federal Rules of Civil Procedure, to parties except that the extent consistent with the purpose of the arbitration. During the pendency of the Dispute, each party shall make available to the Arbitrator and the other parties all books, records and other information within its control requested by the other parties or the Arbitrator subject to the confidentiality provisions contained herein, and provided that no such access shall waive or preclude any objection to such production based on any privilege recognized by law. Recognizing the express desire of the parties for an expeditious means of dispute resolution, the Arbitrator may limit the scope of discovery between the parties as may be reasonable under the circumstances. In deciding the substance of the parties' claims, the laws of the State of Delaware shall govern the construction, interpretation and effect of this Agreement (including this Appendix) without giving effect to any conflict of law principles. The arbitration hearing shall be commenced promptly and conducted expeditiously, with each party involved in the Dispute being allocated an equal amount of time for the presentation of its case. Unless otherwise agreed to by the parties, the arbitration hearing shall be conducted on consecutive days. Time is of the essence in the arbitration proceeding, and the Arbitrator Neutral shall have the right and authority discretion to issue monetary sanctions against any of the parties if, upon a showing of good cause, that party is unreasonably delaying the proceeding. To the fullest extent permitted by law, the arbitration proceedings and award shall be maintained in confidence by the Arbitrator and the partiesfees.
(e) In consultation with the Neutral, the parties shall agree upon a binding schedule and procedure (which procedure may have been previously discussed under subsection (b)) to be used as a means to resolve or to attempt to resolve Dispute, with the Neutral making the decision as to the schedule and/or procedure if the parties have been unable to agree on any of such matters within 20 days after the initial selection of the Neutral. The Disputing Party parties agree to participate in a commercially reasonable manner in the procedure to its conclusion as determined by the Neutral. If the parties are not successful in resolving the Dispute through the procedure described above, then the parties agree that (i) the Neutral shall notify act as the arbitrator in a binding arbitration in accordance with the American Arbitration Association ("AAA") and the other parties involved in the Dispute in writing describing in reasonable detail the nature of the Dispute (the "Dispute Notice"). The arbitrator (the "Arbitrator") shall be selected within 15 days of the date of the Dispute Notice by all of the parties from the members of a panel of arbitrators of the AAA or, if the AAA fails or refuses to provide a list of potential arbitrators, of the Center for Public Resources rules and shall be experienced in commercial arbitration. In the event that the parties are unable to agree on the selection of the Arbitrator, the AAA shall select the Arbitrator, using the criteria set forth in this Appendix, within 30 days of the date of the Dispute Notice. In the event that the Arbitrator is unable to serve, his or her replacement will be selected in the same manner as the Arbitrator to be replaced. The Arbitrator shall be neutral. The Arbitrator shall have the authority to assess the costs render a decision and expenses of the arbitration proceeding (including the arbitrators', and attorneys' fees and expenses) against any or all parties.
(f) The Arbitrator shall decide all Disputes and all substantive and procedural issues related thereto, and shall enforce this Agreement in accordance with its terms. Without limiting the generality of the previous sentence, the Arbitrator shall have the authority to issue injunctive relief; however, the Arbitrator shall not have any power or authority to (i) award consequential, incidental, indirect or punitive damages or (ii) amend this Agreement. The Arbitrator shall render judgment upon the arbitration award, in writing, within 20 days following the completion of the arbitration hearing, and shall set forth the reasons for the award. In the event that the Arbitrator awards monetary damages in favor of either party, the Arbitrator must certify in the award that no indirect, consequential, incidental, indirect or punitive damages are included in such award. If the Arbitrator's decision results in a monetary award, the interest to be granted on such award, if any, and the rate of such interest shall be determined rendered by the Arbitrator in his or her discretion. The arbitration award shall be final and binding on the parties, and judgment thereon Neutral may be entered in any court of competent having jurisdiction, and may not be appealed except to the extent permitted by the Federal Arbitration Act.
Appears in 4 contracts
Sources: Asset Contribution Agreement (Lyondell Petrochemical Co), Asset Contribution Agreement (Equistar Funding Corp), Asset Contribution Agreement (Millennium Chemicals Inc)
ADR and Binding Arbitration Procedures. If a Dispute arises, the -------------------------------------- following procedures shall be implemented:implemented (with references to "Partners" meaning the Partners involved in the Dispute):
(a) Any party to this Agreement Partner may at any time invoke the dispute resolution procedures set forth in this Appendix A as to any Dispute by providing written notice of such action to the other party or parties to Secretary of the DisputePartnership, who within five Business Days after such notice shall schedule a meeting to be held in Houston, Texas between the partiesPartners. The Partners' meeting shall occur within 10 Business Days after notice of the meeting is delivered to the other party or partiesPartners. The meeting shall be attended by representatives of each party Partner having decision-making authority regarding the Dispute as well as the dispute resolution process and who shall attempt in a commercially reasonable manner to negotiate a resolution of the Dispute.
(b) The representatives of the parties Partners shall cooperate in a commercially reasonable manner and shall explore whether techniques such as mediation, minitrials, mock trials or other techniques of alternative dispute resolution might be useful. In the event that a technique of alternative dispute resolution is so agreed upon, a specific timetable and completion date for its implementation shall also be agreed upon. The representatives will continue to meet and discuss settlement until the date (the "Interim Decision Date") that is the earliest to occur of the following events: (i) an agreement shall be reached by the parties Partners resolving the Dispute; (ii) one of the parties Partners shall determine and notify the other party Partners in writing that no agreement resolving the Dispute is likely to be reached; (iii) if a technique of alternative dispute resolution is agreed upon, the completion date therefor shall occur without the parties Partners having resolved the Dispute; or (iv) if another technique of alternative dispute resolution is not agreed upon, two full meeting days (or such other time period as may be agreed upon) shall expire without the parties Partners having resolved the Dispute.
(c) If, as of the Interim Decision Date, the parties Partners have not succeeded in negotiating a resolution of the dispute Dispute pursuant to subsection (b), the parties Partners shall proceed under subsections (d), (e) and (f).
(d) After satisfying the requirements above, such Dispute shall be submitted to mandatory and binding arbitration at the election of any party Partner involved in the Dispute (the "Disputing PartyPartner"). The arbitration shall be subject to the Federal Arbitration Act as supplemented by the conditions set forth in this Appendix. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date the notice of arbitration is served, other than as specifically modified herein. In the absence of an agreement to the contrary, the arbitration shall be held in Houston, Texas. The Arbitrator (as defined below) will allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. During the pendency of the Dispute, each party Partner shall make available to the Arbitrator and the other parties Partners all books, records and other information within its control requested by the other parties Partners or the Arbitrator subject to the confidentiality provisions contained herein, and provided that no such access shall waive or preclude any objection to such production based on any privilege recognized by law. Recognizing the express desire of the parties Partners for an expeditious means of dispute resolution, the Arbitrator may limit the scope of discovery between the parties Partners as may be reasonable under the circumstances. In deciding the substance of the partiesPartners' claims, the laws of the State of Delaware shall govern the construction, interpretation and effect of this Agreement (including this Appendix) without giving effect to any conflict of law principles. The arbitration hearing shall be commenced promptly and conducted expeditiously, with each party Partner involved in the Dispute being allocated an equal amount of time for the presentation of its case. Unless otherwise agreed to by the partiesPartners, the arbitration hearing shall be conducted on consecutive days. Time is of the essence in the arbitration proceeding, and the Arbitrator shall have the right and authority to issue monetary sanctions against any of the parties Partners if, upon a showing of good cause, that party Partner is unreasonably delaying the proceeding. To the fullest extent permitted by law, the arbitration proceedings and award shall be maintained in confidence by the Arbitrator and the partiesPartners.
(e) The Disputing Party Partner shall notify the American Arbitration Association ("AAA") and the other parties involved in the Dispute Partners in writing describing in reasonable detail the nature of the Dispute (the "Dispute Notice"). The arbitrator (the "Arbitrator") shall be selected within 15 days of the date of the Dispute Notice by all of the parties Partners from the members of a panel of arbitrators of the AAA or, if the AAA fails or refuses to provide a list of potential arbitrators, of the Center for Public Resources and shall be experienced in commercial arbitration. In the event that the parties Partners are unable to agree on the selection of the Arbitrator, the AAA shall select the Arbitrator, using the criteria set forth in this Appendix, within 30 days of the date of the Dispute Notice. In the event that the Arbitrator is unable to serve, his or her replacement will be selected in the same manner as the Arbitrator to be replaced. The Arbitrator shall be neutral. The Arbitrator shall have the authority to assess the costs and expenses of the arbitration proceeding (including the arbitrators', and attorneys' fees and expenses) against any or all partiesPartners.
(f) The Arbitrator shall decide all Disputes and all substantive and procedural issues related thereto, and shall enforce this Agreement in accordance with its terms. Without limiting the generality of the previous sentence, the Arbitrator shall have the authority to issue injunctive relief; however, the Arbitrator shall not have any power or authority to (i) award consequential, incidental, indirect or punitive damages or (ii) amend this Agreement. The Arbitrator shall render the arbitration award, in writing, within 20 days following the completion of the arbitration hearing, and shall set forth the reasons for the award. In the event that the Arbitrator awards monetary damages in favor of either party, the Arbitrator must certify in the award that no indirect, consequential, incidental, indirect or punitive damages are included in such award. If the Arbitrator's decision results in a monetary award, the interest to be granted on such award, if any, and the rate of such interest shall be determined by the Arbitrator in his or her discretion. The arbitration award shall be final and binding on the partiesPartners, and judgment thereon may be entered in any court of competent jurisdiction, and may not be appealed except to the extent permitted by the Federal Arbitration Act.
Appears in 3 contracts
Sources: Limited Partnership Agreement (Equistar Chemicals Lp), Limited Partnership Agreement (Equistar Funding Corp), Limited Partnership Agreement (Lyondell Chemical Co)
ADR and Binding Arbitration Procedures. If a Dispute arises, the following procedures shall be implemented:
(a) Any party to this Agreement The Parent from whom recovery is sought may at any time invoke the dispute resolution procedures set forth in this Appendix A B as to any Dispute by providing written notice of such action to the other party or parties to the DisputeParent, who within five Business Days after such notice shall schedule a meeting to be held in Houston, Texas between the partiesParents. The meeting shall occur within 10 Business Days after notice of the meeting is delivered to the other party or partiesParent. The meeting shall be attended by representatives of each party Parent having decision-making authority regarding the Dispute as well as the dispute resolution process and who shall attempt in a commercially reasonable manner to negotiate a resolution of the Dispute.
(b) The representatives of the parties Parents shall cooperate in a commercially reasonable manner and shall explore whether techniques such as mediation, minitrials, mock trials or other techniques of alternative dispute resolution might be useful. In the event that a technique of alternative dispute resolution is so agreed upon, a specific timetable and completion date for its implementation shall also be agreed upon. The representatives will continue to meet and discuss settlement until the date (the "Interim Decision Date") that is the earliest to occur of the following events: (i) an agreement shall be reached by the parties Parents resolving the Dispute; (ii) one of the parties Parents shall determine and notify the other party Parent in writing that no agreement resolving the Dispute is likely to be reached; (iii) if a technique of alternative dispute resolution is agreed upon, the completion date therefor shall occur without the parties Parents having resolved the Dispute; or (iv) if another technique of alternative dispute resolution is not agreed upon, two full meeting days (or such other time period as may be agreed upon) shall expire without the parties Parents having resolved the Dispute.
(c) If, as of the Interim Decision Date, the parties Parents have not succeeded in negotiating a resolution of the dispute pursuant to subsection (b), the parties Parents shall proceed under subsections subsection (d), (e) and (f).
(d) After satisfying The Parents agree to appoint a mutually acceptable neutral person not affiliated with any of the requirements above, such Dispute shall be submitted to mandatory and binding arbitration at the election of any party involved in the Dispute Parents (the "Disputing PartyNeutral"). The arbitration If the Parents have been unable to agree upon such appointment within 30 days after the Interim Decision Date, then such Neutral, upon the application of either of the Parents shall be subject to appointed within 10 days of the Federal Arbitration Act as supplemented filing of such application by the conditions set forth in this Appendix. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of Center for Public Resources, or if such appointment is not so made promptly then promptly thereafter by the American Arbitration Association in effect on Philadelphia, Pennsylvania, or if such appointment is not so made promptly then promptly thereafter by the date senior United States District Court judge sitting in Wilmington, Delaware. The fees of the notice of arbitration is served, other than as specifically modified herein. In the absence of an agreement to the contrary, the arbitration Neutral shall be held in Houston, Texas. The Arbitrator (as defined below) will allow reasonable discovery in the forms permitted paid equally by the Federal Rules of Civil Procedure, to Parents except that the extent consistent with the purpose of the arbitration. During the pendency of the Dispute, each party shall make available to the Arbitrator and the other parties all books, records and other information within its control requested by the other parties or the Arbitrator subject to the confidentiality provisions contained herein, and provided that no such access shall waive or preclude any objection to such production based on any privilege recognized by law. Recognizing the express desire of the parties for an expeditious means of dispute resolution, the Arbitrator may limit the scope of discovery between the parties as may be reasonable under the circumstances. In deciding the substance of the parties' claims, the laws of the State of Delaware shall govern the construction, interpretation and effect of this Agreement (including this Appendix) without giving effect to any conflict of law principles. The arbitration hearing shall be commenced promptly and conducted expeditiously, with each party involved in the Dispute being allocated an equal amount of time for the presentation of its case. Unless otherwise agreed to by the parties, the arbitration hearing shall be conducted on consecutive days. Time is of the essence in the arbitration proceeding, and the Arbitrator Neutral shall have the right and authority discretion to issue monetary sanctions against any of the parties if, upon a showing of good cause, that party is unreasonably delaying the proceeding. To the fullest extent permitted by law, the arbitration proceedings and award shall be maintained in confidence by the Arbitrator and the partiesfees.
(e) In consultation with the Neutral, the Parents shall agree upon a binding schedule and procedure (which procedure may have been previously discussed under subsection (b)) to be used as a means to resolve or to attempt to resolve Dispute, with the Neutral making the decision as to the schedule and/or procedure if the Parents have been unable to agree on any of such matters within 20 days after the initial selection of the Neutral. The Disputing Party Parents agree to participate in a commercially reasonable manner in the procedure to its conclusion as determined by the Neutral. If the Parents are not successful in resolving the Dispute through the procedure described above, then the Parents agree that (i) the Neutral shall notify act as the arbitrator in a binding arbitration in accordance with the American Arbitration Association ("AAA") and the other parties involved in the Dispute in writing describing in reasonable detail the nature of the Dispute (the "Dispute Notice"). The arbitrator (the "Arbitrator") shall be selected within 15 days of the date of the Dispute Notice by all of the parties from the members of a panel of arbitrators of the AAA or, if the AAA fails or refuses to provide a list of potential arbitrators, of the Center for Public Resources rules and shall be experienced in commercial arbitration. In the event that the parties are unable to agree on the selection of the Arbitrator, the AAA shall select the Arbitrator, using the criteria set forth in this Appendix, within 30 days of the date of the Dispute Notice. In the event that the Arbitrator is unable to serve, his or her replacement will be selected in the same manner as the Arbitrator to be replaced. The Arbitrator shall be neutral. The Arbitrator shall have the authority to assess the costs render a decision and expenses of the arbitration proceeding (including the arbitrators', and attorneys' fees and expenses) against any or all parties.
(f) The Arbitrator shall decide all Disputes and all substantive and procedural issues related thereto, and shall enforce this Agreement in accordance with its terms. Without limiting the generality of the previous sentence, the Arbitrator shall have the authority to issue injunctive relief; however, the Arbitrator shall not have any power or authority to (i) award consequential, incidental, indirect or punitive damages or (ii) amend this Agreement. The Arbitrator shall render judgment upon the arbitration award, in writing, within 20 days following the completion of the arbitration hearing, and shall set forth the reasons for the award. In the event that the Arbitrator awards monetary damages in favor of either party, the Arbitrator must certify in the award that no indirect, consequential, incidental, indirect or punitive damages are included in such award. If the Arbitrator's decision results in a monetary award, the interest to be granted on such award, if any, and the rate of such interest shall be determined rendered by the Arbitrator in his or her discretion. The arbitration award shall be final and binding on the parties, and judgment thereon Neutral may be entered in any court of competent having jurisdiction, and may not be appealed except to the extent permitted by the Federal Arbitration Act.
Appears in 3 contracts
Sources: Master Transaction Agreement (Millennium Chemicals Inc), Parent Agreement (Lyondell Petrochemical Co), Parent Agreement (Millennium Chemicals Inc)
ADR and Binding Arbitration Procedures. If a Dispute arises, the following procedures shall be implemented:
(a) Any party to this Agreement Each Partner may at any time invoke the dispute resolution procedures set forth in this Appendix A as to any Dispute by providing written notice of such action to the other party or parties to Secretary of the DisputePartnership, who within five Business Days after such notice shall schedule a meeting to be held in Houston, Texas between the partiesPartners. The Partners' meeting shall occur within 10 Business Days after notice of the meeting is delivered to the other party or partiesPartners. The meeting shall be attended by representatives of each party Partner having decision-making authority regarding the Dispute as well as the dispute resolution process and who shall attempt in a commercially reasonable manner to negotiate a resolution of the Dispute.
(b) The representatives of the parties Partners shall cooperate in a commercially reasonable manner and shall explore whether techniques such as mediation, minitrials, mock trials or other techniques of alternative dispute resolution might be useful. In the event that a technique of alternative dispute resolution is so agreed upon, a specific timetable and completion date for its implementation shall also be agreed upon. The representatives will continue to meet and discuss settlement until the date (the "Interim Decision Date") that is the earliest to occur of the following events: (i) an agreement shall be reached by the parties Partners resolving the Dispute; (ii) one of the parties Partners shall determine and notify the other party Partners in writing that no agreement resolving the Dispute is likely to be reached; (iii) if a technique of alternative dispute resolution is agreed upon, the completion date therefor shall occur without the parties Partners having resolved the Dispute; or (iv) if another technique of alternative dispute resolution is not agreed upon, two full meeting days (or such other time period as may be agreed upon) shall expire without the parties Partners having resolved the Dispute.
(c) If, as of the Interim Decision Date, the parties Partners have not succeeded in negotiating a resolution of the dispute Dispute pursuant to subsection (b), the parties Partners shall proceed under subsections subsection (d), (e) and (f).
(d) After satisfying The Partners shall jointly appoint a Neutral. If the requirements abovePartners have been unable to agree upon such appointment within 30 days from the Interim Decision Date, then such Dispute Neutral upon the application of any Partner shall be submitted to mandatory and binding arbitration at appointed within 10 days of the election filing of any party involved in the Dispute (the "Disputing Party"). The arbitration shall be subject to the Federal Arbitration Act as supplemented such application by the conditions set forth in this Appendix. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of Appendix D-1 Center for Public Resources, or if such appointment is not so made promptly then promptly thereafter by the American Arbitration Association in effect on Philadelphia, Pennsylvania, or if such appointment is not so made promptly then promptly thereafter by the date senior United States District Court judge sitting in Wilmington, Delaware. The fees of the notice of arbitration is served, other than as specifically modified herein. In the absence of an agreement to the contrary, the arbitration Neutral shall be held in Houston, Texas. The Arbitrator (as defined below) will allow reasonable discovery in the forms permitted paid equally by the Federal Rules of Civil Procedure, to Partners except that the extent consistent with the purpose of the arbitration. During the pendency of the Dispute, each party shall make available to the Arbitrator and the other parties all books, records and other information within its control requested by the other parties or the Arbitrator subject to the confidentiality provisions contained herein, and provided that no such access shall waive or preclude any objection to such production based on any privilege recognized by law. Recognizing the express desire of the parties for an expeditious means of dispute resolution, the Arbitrator may limit the scope of discovery between the parties as may be reasonable under the circumstances. In deciding the substance of the parties' claims, the laws of the State of Delaware shall govern the construction, interpretation and effect of this Agreement (including this Appendix) without giving effect to any conflict of law principles. The arbitration hearing shall be commenced promptly and conducted expeditiously, with each party involved in the Dispute being allocated an equal amount of time for the presentation of its case. Unless otherwise agreed to by the parties, the arbitration hearing shall be conducted on consecutive days. Time is of the essence in the arbitration proceeding, and the Arbitrator Neutral shall have the right and authority discretion to issue monetary sanctions against any of the parties if, upon a showing of good cause, that party is unreasonably delaying the proceeding. To the fullest extent permitted by law, the arbitration proceedings and award shall be maintained in confidence by the Arbitrator and the partiesfees.
(e) The Disputing Party In consultation with the Neutral, the Partners shall notify agree upon a binding schedule and procedure (which procedure may have been previously discussed under subsection (b)) to be used as a means to resolve or to attempt to resolve the American Arbitration Association ("AAA") and Dispute, with the other parties involved in Neutral making the Dispute in writing describing in reasonable detail decision as to the nature of the Dispute (the "Dispute Notice"). The arbitrator (the "Arbitrator") shall be selected within 15 days of the date of the Dispute Notice by all of the parties from the members of a panel of arbitrators of the AAA or, schedule and/or procedure if the AAA fails or refuses to provide a list of potential arbitrators, of the Center for Public Resources and shall be experienced in commercial arbitration. In the event that the parties are Partners have been unable to agree on any of such matters within 20 days after the initial selection of the Arbitrator, the AAA shall select the Arbitrator, using the criteria set forth Neutral. The Partners agree to participate in this Appendix, within 30 days of the date of the Dispute Notice. In the event that the Arbitrator is unable to serve, his or her replacement will be selected a commercially reasonable manner in the same manner procedure to its conclusion as determined by the Neutral. If the Partners are not successful in resolving the dispute through the procedure described above, then the Partners agree that (i) the Neutral shall act as the Arbitrator to be replaced. The Arbitrator shall be neutral. The Arbitrator shall have the authority to assess the costs and expenses of the arbitrator in a binding arbitration proceeding (including the arbitrators', and attorneys' fees and expenses) against any or all parties.
(f) The Arbitrator shall decide all Disputes and all substantive and procedural issues related thereto, and shall enforce this Agreement in accordance with its terms. Without limiting the generality of the previous sentence, the Arbitrator American Arbitration Association rules and shall have the authority to issue injunctive relief; however, the Arbitrator shall not have any power or authority to (i) award consequential, incidental, indirect or punitive damages or render a decision and (ii) amend this Agreement. The Arbitrator shall render judgment upon the arbitration award, in writing, within 20 days following the completion of the arbitration hearing, and shall set forth the reasons for the award. In the event that the Arbitrator awards monetary damages in favor of either party, the Arbitrator must certify in the award that no indirect, consequential, incidental, indirect or punitive damages are included in such award. If the Arbitrator's decision results in a monetary award, the interest to be granted on such award, if any, and the rate of such interest shall be determined rendered by the Arbitrator in his or her discretion. The arbitration award shall be final and binding on the parties, and judgment thereon Neutral may be entered in any court of competent having jurisdiction, and may not be appealed except to the extent permitted by the Federal Arbitration Act.
Appears in 1 contract
Sources: Limited Partnership Agreement (Lyondell Petrochemical Co)
ADR and Binding Arbitration Procedures. If a Dispute arises, the following procedures shall be implemented:
(ai) Any party to this Agreement Party may at any time invoke the dispute resolution procedures set forth in this Appendix A these Dispute Resolution Procedures as to any Dispute by providing written notice of such action to the other party or parties to the Dispute, who Parties. The disputing Parties within five Business Days days after such notice has been received shall schedule a meeting between the disputing Parties to be held in Houston, Texas between Texas, or at such other place as the partiesdisputing Parties may mutually agree. The meeting shall occur within 10 Business Days ten days after notice of the meeting is delivered to the other party or partiesdisputing Parties. The meeting shall be attended by representatives the chief legal officer, or Person of similar title of each party having decision-making authority regarding of the Dispute as well as Parties involved in the dispute resolution process and who Dispute. Such Persons shall attempt in a commercially reasonable manner to negotiate a resolution of the Dispute. If such Persons succeed in negotiating a resolution of the Dispute, one or more disputing Parties shall be directed (in as comprehensive detail as reasonably practicable) to take the actions necessary to carry out such resolution. Unless mutually agreed to between the disputing Parties, each Party shall have 90 days in which to take such actions (a “Cure Period”).
(bii) The As part of the process set forth in clause (c)(i), or if following the Cure Period, a Party believes in good faith that a Dispute still exists, the representatives of the parties disputing Parties shall cooperate in a commercially reasonable manner and shall explore whether techniques such as mediation, minitrialsmini-trials, mock trials or other techniques of alternative dispute resolution might be useful, although each party may agree or decline to participate in such techniques of alternative dispute resolution at its sole discretion. In the event that a technique of alternative dispute resolution is so agreed upon, a specific timetable and completion date for its implementation shall also be agreed upon. The representatives will continue to meet and discuss settlement until the date (the "“Interim Decision Date"”) that is the earliest to occur of the following events: :
(iA) an agreement shall be reached by the parties Parties resolving the Dispute; ;
(ii) one of the parties shall determine and notify the other party in writing that no agreement resolving the Dispute is likely to be reached; (iiiB) if a technique of alternative dispute resolution is agreed upon, the completion date therefor shall occur without the parties Parties having resolved the Dispute; or or
(ivC) if another a technique of alternative dispute resolution is not agreed upon, two full meeting 90 days after the date of the original notice. Unless the Parties expressly agree otherwise, the contents of any negotiations pursuant to this clause (c)(ii) (including but not limited to any documents or such other time period as may be agreed uponcorrespondence exchanged by the Parties) shall expire without be confidential among the parties having resolved the DisputeParties, and shall not be admissible in any subsequent judicial or arbitral proceedings.
(ciii) If, as of the Interim Decision Date, the parties disputing Parties have not succeeded in negotiating a resolution of the dispute Dispute pursuant to subsection clause (bc)(ii), the parties disputing Parties shall proceed under subsections clauses (dc)(iv), (ec)(v) and (fc)(vi).
(div) After satisfying the requirements above, such Dispute shall be submitted to mandatory and binding arbitration at the election of any party Party involved in the Dispute (the "“Disputing Party"”). The arbitration shall be subject to the Federal Arbitration Act Act, 9 U.S.C. § 1, et seq. as supplemented by the conditions set forth in this Appendixthese Dispute Resolution Procedures. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date the notice of arbitration is served, other than as specifically modified herein. In the absence of an agreement to the contrary, the arbitration shall be held in Houston, Texas. The Arbitrator (as defined below) Arbitrators will allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. During the pendency of the Dispute, each party disputing Party shall make available to the Arbitrator Arbitrators and the other parties disputing Parties all books, records and other information within its control pertaining to the Dispute requested by the other parties disputing Parties or the Arbitrator Arbitrators subject to the confidentiality provisions contained herein, and provided that no such access shall waive or preclude any objection to such production based on any privilege recognized by law. Recognizing the express desire of the parties Parties for an expeditious means of dispute resolution, the Arbitrator Arbitrators may limit the scope of discovery between the parties disputing Parties as may be reasonable under the circumstances. In deciding the substance of the parties' disputing Parties’ claims, this Agreement shall be governed by and interpreted, construed and enforced (both as to validity and performance) in accordance with the laws substantive law of the State of Delaware shall govern the constructionTexas, interpretation and effect of this Agreement (including this Appendix) without giving effect to any conflict conflicts of law principles. The arbitration hearing shall be commenced promptly and conducted expeditiously, with each party Party involved in the Dispute being allocated an equal amount of time for the presentation of its case. Unless otherwise agreed to by the partiesdisputing Parties, the arbitration hearing shall be conducted on consecutive days. Time is of the essence in the arbitration proceeding, and the Arbitrator shall have the right and authority to issue monetary sanctions against any of the parties if, upon a showing of good cause, that party is unreasonably delaying the proceeding. To the fullest extent permitted by applicable law, the arbitration proceedings and award shall be maintained in confidence by the Arbitrator Arbitrators and the partiesParties.
(ev) The Disputing Party shall notify the American Arbitration Association ("“AAA"”) and the other parties involved in the Dispute Parties in writing describing in reasonable detail the nature of the Dispute (the "“Dispute Notice"”). The Each Party to the dispute shall select one arbitrator (the "Arbitrator"“Selected Arbitrators”) shall be selected within no later than 15 days of after the date of the Dispute Notice by all of Notice. The Selected Arbitrators shall then jointly select a third arbitrator (together with the parties Selected Arbitrators, the “Arbitrators”) from the members of a panel of arbitrators of the AAA or, if the AAA fails or refuses to provide a list of potential arbitrators, of the Center for Public Resources Resources, and such Arbitrator shall be experienced in commercial arbitrationarbitration and shall otherwise be an appropriate person based on the nature of the Dispute. In the event that the parties Selected Arbitrators are unable to agree on the selection of the third Arbitrator, the AAA shall select the third Arbitrator, using the criteria set forth in this Appendixthese Dispute Resolution Procedures, within 30 days of after the date of the Dispute Notice. In the event that the any Arbitrator is unable to serve, his or her replacement will be selected in the same manner as the Arbitrator to be replaced. The Arbitrator vote of two of the three Arbitrators shall be neutralrequired for any decision under these Dispute Resolution Procedures. The Arbitrator During the pendency of the Dispute (A) all costs and expenses incurred by a Party in connection with the Dispute that are required to be paid during the pendency of the Dispute (other than costs and expenses of the Arbitrators) shall be paid by the Party that incurs such cost, and (B) each disputing Party shall pay an equal share of the costs and expenses of the Arbitrators; provided, however, that all costs and expenses (including the Arbitrators’ and attorneys’ fees and expenses) of the prevailing Party will be borne by the non-prevailing Party and the non-prevailing Party shall reimburse the prevailing Party for any costs it incurred during the pendency of the Dispute, provided that the award of the Arbitrators specifies (and the Arbitrators are hereby instructed and authorized to so specify if in their determination such specification is feasible) that a Party has prevailed with respect to a preponderance of the Disputes determined by the Arbitrators. If there is no specified prevailing Party, the Arbitrators shall have the authority and discretion to assess the costs and expenses of the arbitration proceeding (including against all of the arbitrators', and attorneys' fees and expenses) against any or all partiesdisputing Parties as the Arbitrators deem appropriate although the Arbitrators shall not be required to do so.
(fvi) The Arbitrator Arbitrators shall decide all Disputes and all substantive and procedural issues related thereto, and shall enforce this Agreement in accordance with its terms. Without limiting the generality of the previous sentence, the Arbitrator Arbitrators shall have the authority to issue injunctive relief; however, the Arbitrator Arbitrators shall not have any power or authority to (iA) award consequential, incidental, indirect or punitive damages or (ii) amend this Agreement. The Arbitrator shall render the arbitration awarddamages, in writing, within 20 days following the completion of the arbitration hearing, and shall set forth the reasons for the award. In the event that the Arbitrator awards monetary damages in favor of either party, the Arbitrator must certify in the award that no indirect, consequential, incidental, indirect or punitive damages are included in such award. If the Arbitrator's decision results in a monetary award, the interest to be granted on such award, if any, and the rate of such interest shall be determined by the Arbitrator in his or her discretion. The arbitration award shall be final and binding on the parties, and judgment thereon may be entered in any court of competent jurisdiction, and may not be appealed except to the extent permitted by the Federal Arbitration Act.or
Appears in 1 contract
Sources: Custodial Trust Agreement
ADR and Binding Arbitration Procedures. If a Dispute arises, the following procedures shall be implemented:
(a) Any party to this Agreement may at any time invoke the dispute resolution procedures set forth in this Appendix A B as to any Dispute by providing written notice of such action to the other party or parties to the Dispute, who within five Business Days business days after such notice shall schedule a meeting to be held in HoustonDallas, Texas between the parties. The meeting shall occur within 10 Business Days business days after notice of the meeting is delivered to the other party or parties. The meeting shall be attended by representatives of each party having decision-making authority regarding the Dispute as well as the dispute resolution process and who shall attempt in a commercially reasonable manner to negotiate a resolution of the Dispute.
(b) The representatives of the parties shall cooperate in a commercially reasonable manner and shall explore whether techniques such as mediation, minitrials, mock trials or other techniques of alternative dispute resolution might be useful. In the event that a technique of alternative dispute resolution is so agreed upon, a specific timetable and completion date for its implementation shall also be agreed upon. The representatives will continue to meet and discuss settlement until the date (the "Interim Decision Date") that is the earliest to occur of the following events: (i) an agreement shall be reached by the parties resolving the Dispute; (ii) one of the parties shall determine and notify the other party in writing that no agreement resolving the Dispute is likely to be reached; (iii) if a technique of alternative dispute resolution is agreed upon, the completion date therefor shall occur without the parties having resolved the Dispute; or (iv) if another technique of alternative dispute resolution is not agreed upon, two full meeting days (or such other time period as may be agreed upon) shall expire without the parties having resolved the Dispute.
(c) If, as of the Interim Decision Date, the parties have not succeeded in negotiating a resolution of the dispute pursuant to subsection (b), the parties shall proceed under subsections (d), (e) and (f).
(d) After satisfying the requirements above, such Dispute shall be submitted to mandatory and binding arbitration at the election of any party involved in the Dispute (the "Disputing Party"). The arbitration shall be subject to the Federal Arbitration Act as supplemented by the conditions set forth in this Appendix. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date the notice of arbitration is served, other than as specifically modified herein. In the absence of an agreement to the contrary, the arbitration shall be held in HoustonDallas, Texas. The Arbitrator (as defined below) will allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. During the pendency of the Dispute, each party shall make available to the Arbitrator and the other parties all books, records and other information within its control requested by the other parties or the Arbitrator subject to the confidentiality provisions contained herein, and provided PROVIDED that no such access shall waive or preclude any objection to such production based on any privilege recognized by law. Recognizing the express desire of the parties for an expeditious means of dispute resolution, the Arbitrator may limit the scope of discovery between the parties as may be reasonable under the circumstances. In deciding the substance of the parties' claims, the laws of the State of Delaware New York shall govern the construction, interpretation and effect of this Agreement (including this Appendix) without giving effect to any conflict of law principles. The arbitration hearing shall be commenced promptly and conducted expeditiously, with each party involved in the Dispute being allocated an equal amount of time for the presentation of its case. Unless otherwise agreed to by the parties, the arbitration hearing shall be conducted on consecutive days. Time is of the essence in the arbitration proceeding, and the Arbitrator shall have the right and authority to issue monetary sanctions against any of the parties if, upon a showing of good cause, that party is unreasonably delaying the proceeding. To the fullest extent permitted by law, the arbitration proceedings and award shall be maintained in confidence by the Arbitrator and the parties.
(e) The Disputing Party shall notify the American Arbitration Association ("AAA") and the other parties involved in the Dispute in writing describing in reasonable detail the nature of the Dispute (the "Dispute Notice"). The arbitrator (the "Arbitrator") shall be selected within 15 days of the date of receipt of the Dispute Notice by all of the parties from the members of a panel of arbitrators of the AAA or, if the AAA fails or refuses to provide a list of potential arbitrators, of the Center for Public Resources Resources, and shall be experienced in commercial arbitration. In the event that the parties are unable to agree on the selection of the Arbitrator, the AAA shall select the Arbitrator, using the criteria set forth in this Appendix, within 30 days of the date of the Dispute Notice. In the event that the Arbitrator is unable to serve, his or her replacement will be selected in the same manner as the Arbitrator to be replaced. The Arbitrator shall be neutral. The Arbitrator shall have the authority to assess the costs and expenses of the arbitration proceeding (including the arbitrators', ' costs and attorneys' fees and expenses) against any or all parties.
(f) The Arbitrator shall decide all Disputes and all substantive and procedural issues related thereto, and shall enforce this Agreement in accordance with its terms. Without limiting the generality of the previous sentence, the Arbitrator shall have the authority to issue injunctive relief; however, the Arbitrator shall not have any power or authority to (i) award consequential, incidental, indirect indirect, punitive, exemplary, special or punitive other similar damages or (ii) amend this Agreement. The Arbitrator shall render the arbitration award, in writing, within 20 days following the completion of the arbitration hearing, and shall set forth the reasons for the award. In the event that the Arbitrator awards monetary damages in favor of either a party, the Arbitrator must certify in the award that no indirect, consequential, incidental, indirect punitive, exemplary, special or punitive other similar damages are included in such award. If the Arbitrator's decision results in a monetary award, the interest to be granted on such award, if any, and the rate of such interest shall be determined by the Arbitrator in his or her discretion. The arbitration award shall be final and binding on the parties, and judgment thereon may be entered in any court of competent jurisdiction, and may not be appealed except to the extent permitted by the Federal Arbitration Act.
(g) In the event that a Dispute involving Remedial Action pursuant to Section 5.5 is submitted to mandatory and binding arbitration, any factual or technical dispute regarding the presence, Release or threatened Release of Chemical Substances under Section 5.5(b)(ii) or the Lowest Cost Response under Section 5.5(c)(i) or (ii) shall be submitted, either by the Arbitrator or by the parties, to a nationally-recognized environmental consulting firm acceptable to both parties for binding resolution of such factual or technical dispute, and the Arbitrator shall be bound to accept and apply the factual or technical findings of such firm in rendering its decision hereunder.
(h) To assist the Arbitrator or the environmental consulting firm in resolving Disputes where the Disputing Party alleges, pursuant to Section 5.3(g), and the Arbitrator and/or environmental consulting firm determines, that both the Partnership and Contributor are liable for a Remedial Action, the parties authorize the Arbitrator to allocate the Liability, as between Contributor and the Partnership and for purposes of this Agreement only, based upon the following rebuttable presumptions:
(i) with respect to an HSE Type A Claim involving a Remedial Action in, on, under, at, or in the vicinity of the Fee Interests or the Leaseholds, the Liability should be allocated based upon the relative years of use or operation by Contributor and the Partnership of the building, structure, fixture or improvement from which the Chemical Substance was Released;
(ii) with respect to an HSE Type A Claim involving a Remedial Action in, on, under, at or in the vicinity of an offsite treatment, storage or disposal facility, which facility received solid or hazardous waste or recyclable materials as a public or commercial enterprise and to which the Contributed Business is alleged to have sent or transported such materials for treatment, storage, recycling or disposal both before and after the Asset Transfer Effective Time, the Liability should be allocated based upon the relative volume of materials attributed to Contributor and its Affiliates and the Partnership, PROVIDED that the Chemical Substances attributed to the parties, and the constituents, toxicity, mobility and concentrations thereof, are similar in all material respects;
(iii) with respect to an HSE Type B Claim, the Liability to attain compliance with HSE Laws in effect as of the Asset Transfer Effective Time should be allocated solely to Contributor, while the Liability to attain compliance with HSE Laws that become more stringent after the Asset Transfer Effective Time and to continue to operate in compliance with then applicable HSE Laws should be allocated to the Partnership. To the extent penalties for noncompliance with HSE Laws in effect as of the Asset Transfer Effective Time are assessed for a period of time before the Asset Transfer Effective Time, before the Partnership knows of the existence of the noncompliance, or after the Partnership knows of the existence of such noncompliance but is taking commercially reasonable actions to cure the matter or to otherwise achieve compliance in a commercially reasonable and prudent matter, Liability in each case should be allocated solely to Contributor. To the extent penalties for noncompliance with HSE Laws are assessed for a period of time after the Partnership knows of the existence of the noncompliance but has failed to take commercially reasonable actions to cure the matter or to otherwise achieve compliance in a commercially reasonable and prudent matter pursuant to Section 5.2(c), Liability should be allocated solely to the Partnership.
Appears in 1 contract
ADR and Binding Arbitration Procedures. If a Dispute arises, the following procedures shall be implemented:
(a) Any party to this Agreement may at any time invoke the dispute resolution procedures set forth in this Appendix A Exhibit B as to any Dispute by providing written notice of such action to the other party or parties to the Disputeparty, who within five Business Days after such notice shall schedule a meeting to be held in Houston, Texas between the parties. The meeting shall occur within 10 Business Days after notice of the meeting is delivered to the other party or partiesparty. The meeting shall be attended by representatives of each party having decision-making authority regarding the Dispute as well as the dispute resolution process and who shall attempt in a commercially reasonable manner to negotiate a resolution of the Dispute.
(b) The representatives of the parties shall cooperate in a commercially reasonable manner and shall explore whether techniques such as mediation, minitrials, mock trials or other techniques of alternative dispute resolution might be useful. In the event that a technique of alternative dispute resolution is so agreed upon, a specific timetable and completion date for its implementation shall also be agreed upon. The representatives will continue to meet and discuss settlement until the date (the "“Interim Decision Date"”) that is the earliest to occur of the following events: (i) an agreement shall be reached by the parties resolving the Dispute; (ii) one of the parties shall determine and notify the other party in writing that no agreement resolving the Dispute is likely to be reached; (iii) if a technique of alternative dispute resolution is agreed upon, the completion date therefor shall occur without the parties having resolved the Dispute; or (iv) if another technique of alternative dispute resolution is not agreed upon, two full meeting days (or such other time period as may be agreed upon) shall expire without the parties having resolved the Dispute.
(c) If, as of the Interim Decision Date, the parties have not succeeded in negotiating a resolution of the dispute pursuant to subsection (b), the parties shall proceed under subsections (d), (e) and (f).
(d) After satisfying the requirements above, such Dispute shall be submitted to mandatory and binding arbitration at the election of any party involved in the Dispute (the "“Disputing Party"”). The arbitration shall be subject to the Federal Arbitration Act as supplemented by the conditions set forth in this Appendix. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date the notice of arbitration is served, other than as specifically modified herein. In the absence of an agreement to the contrary, the arbitration shall be held in Houston, Texas. The Arbitrator (as defined below) will allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. During the pendency of the Dispute, each party shall make available to the Arbitrator and the other parties party all books, records and other information within its control requested by the other parties party or the Arbitrator subject to the confidentiality provisions contained herein, and provided that no such access shall waive or preclude any objection to such production based on any privilege recognized by law. Recognizing the express desire of the parties for an expeditious means of dispute resolution, the Arbitrator may limit the scope of discovery between the parties as may be reasonable under the circumstances. In deciding the substance of the parties' ’ claims, the laws of the State of Delaware Texas shall govern the construction, interpretation and effect of this Agreement (including this Appendix) without giving effect to any conflict of law principles. The arbitration hearing shall be commenced promptly and conducted expeditiously, with each party involved in the Dispute being allocated an equal amount of time for the presentation of its case. Unless otherwise agreed to by the parties, the arbitration hearing shall be conducted on consecutive days. Time is of the essence in the arbitration proceeding, and the Arbitrator shall have the right and authority to issue monetary sanctions against any of the parties if, upon a showing of good cause, that party is unreasonably delaying the proceeding. To the fullest extent permitted by law, the arbitration proceedings and award shall be maintained in confidence by the Arbitrator and the parties.
(e) The Disputing Party shall notify the American Arbitration Association ("“AAA"”) and the other parties party involved in the Dispute in writing describing in reasonable detail the nature of the Dispute (the "“Dispute Notice"”). The arbitrator (the "“Arbitrator"”) shall be selected within 15 days of the date of the Dispute Notice by all of the parties from the members of a panel of arbitrators of the AAA or, if the AAA fails or refuses to provide a list of potential arbitrators, of the Center for Public Resources and shall be experienced in commercial arbitration. In the event that the parties are unable to agree on the selection of the Arbitrator, the AAA shall select the Arbitrator, using the criteria set forth in this Appendix, within 30 days of the date of the Dispute Notice. In the event that the Arbitrator is unable to serve, his or her replacement will be selected in the same manner as the Arbitrator to be replaced. The Arbitrator shall be neutral. The Arbitrator shall have the authority to assess the costs and expenses of the arbitration proceeding (including the arbitrators'’, and attorneys' ’ fees and expenses) against any or all parties.
(f) The Arbitrator shall decide all Disputes and all substantive and procedural issues related thereto, and shall enforce this Agreement in accordance with its terms. Without limiting the generality of the previous sentence, the Arbitrator shall have the authority to issue injunctive relief; however, the Arbitrator shall not have any power or authority to (i) award consequential, incidental, indirect or punitive damages or (ii) amend this Agreement. The Arbitrator shall render the arbitration award, in writing, within 20 days following the completion of the arbitration hearing, and shall set forth the reasons for the award. In the event that the Arbitrator awards monetary damages in favor of either any party, the Arbitrator must certify in the award that no indirect, consequential, incidental, indirect or punitive damages are included in such award. If the Arbitrator's ’s decision results in a monetary award, the interest to be granted on such award, if any, and the rate of such interest shall be determined by the Arbitrator in his or her discretion. The arbitration award shall be final and binding on the parties, and judgment thereon may be entered in any court of competent jurisdiction, and may not be appealed except to the extent permitted by the Federal Arbitration Act.
Appears in 1 contract
ADR and Binding Arbitration Procedures. If a Dispute arises, the following procedures shall be implemented:
(a) Any party to this Agreement may at any time invoke the dispute resolution procedures set forth in this Appendix A Exhibit C as to any Dispute by providing written notice of such action to the other party or parties to the Disputeparty, who within five Business Days after such notice shall schedule a meeting to be held in Houston, Texas between the parties. The meeting shall occur within 10 Business Days after notice of the meeting is delivered to the other party or partiesparty. The meeting shall be attended by representatives of each party having decision-making authority regarding the Dispute as well as the dispute resolution process and who shall attempt in a commercially reasonable manner to negotiate a resolution of the Dispute.
(b) The representatives of the parties shall cooperate in a commercially reasonable manner and shall explore whether techniques such as mediation, minitrials, mock trials or other techniques of alternative dispute resolution might be useful. In the event that a technique of alternative dispute resolution is so agreed upon, a specific timetable and completion date for its implementation shall also be agreed agreed, upon. The representatives will continue to meet and discuss settlement until the date (the "Interim Decision Date") that is the earliest to occur of the following events: (i) an agreement shall be reached by the parties resolving the Dispute; (ii) one of the parties shall determine and notify the other party in writing that no agreement resolving the Dispute is likely to be reached; (iii) if a technique of alternative dispute resolution is agreed upon, the completion date therefor shall occur without the parties having resolved the Dispute; or (iv) if another technique of alternative dispute resolution is not agreed upon, two full meeting days (or such other time period as may be agreed upon) shall expire without the parties having resolved the Dispute.
(c) If, as of the Interim Decision Date, the parties have not succeeded in negotiating a resolution of the dispute pursuant to subsection (b), the parties shall proceed under subsections (d), (e) and (f).
(d) After satisfying the requirements above, such Dispute shall be submitted to mandatory and binding arbitration at the election of any party involved in the Dispute (the "Disputing Party"). The arbitration shall be subject to the Federal Arbitration Act as supplemented by the conditions set forth in this Appendix. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date the notice of arbitration is served, other than as specifically modified herein. In the absence of an agreement to the contrary, the arbitration shall be held in Houston, Texas. The Arbitrator (as defined below) will allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. During the pendency of the Dispute, each party shall make available to the Arbitrator and the other parties party all books, records and other information within its control requested by the other parties party or the Arbitrator subject to the confidentiality provisions contained herein, and provided that no such access shall waive or preclude any objection to such production based on any privilege recognized by law. Recognizing the express desire of the parties for an expeditious means of dispute resolution, the Arbitrator may limit the scope of discovery between the parties as may be reasonable under the circumstances. In deciding the substance of the parties' claims, the laws of the State of Delaware Texas shall govern the construction, interpretation and effect of this Agreement (including this Appendix) without giving effect to any conflict of law principles. The arbitration hearing shall be commenced promptly and conducted expeditiously, with each party involved in the Dispute being allocated an equal amount of time for the presentation of its case. Unless otherwise agreed to by the parties, the arbitration hearing shall be conducted on consecutive days. Time is of the essence in the arbitration proceeding, and the Arbitrator shall have the right and authority to issue monetary sanctions against any of the parties if, upon a showing of good cause, that party is unreasonably delaying the proceeding. To the fullest extent permitted by law, the arbitration proceedings and award shall be maintained in confidence by the Arbitrator and the parties.
(e) The Disputing Party shall notify the American Arbitration Association ("AAA") and the other parties party involved in the Dispute in writing describing in reasonable detail the nature of the Dispute (the "Dispute Notice"). The arbitrator (the "Arbitrator") shall be selected within 15 days of the date of the Dispute Notice by all of the parties from the members of a panel of arbitrators of the AAA or, if the AAA fails or refuses to provide a list of potential arbitrators, of the Center for Public Resources and shall be experienced in commercial arbitration. In the event that the parties are unable to agree on the selection of the Arbitrator, the AAA shall select the Arbitrator, using the criteria set forth in this Appendix, within 30 days of the date of the Dispute Notice. In the event that the Arbitrator is unable to serve, his or her replacement will be selected in the same manner as the Arbitrator to be replaced. The Arbitrator shall be neutral. The Arbitrator shall have the authority to assess the costs and expenses of the arbitration proceeding (including the arbitrators', and attorneys' fees and expenses) against any or all parties.
(f) The Arbitrator shall decide all Disputes and all substantive and procedural issues related thereto, and shall enforce this Agreement in accordance with its terms. Without limiting the generality of the previous sentence, the Arbitrator shall have the authority to issue injunctive relief; however, the Arbitrator shall not have any power or authority to (i) award consequential, incidental, indirect or punitive damages or (ii) amend this Agreement. The Arbitrator shall render the arbitration award, in writing, within 20 days following followiing the completion of the arbitration hearing, and shall set forth the reasons for the award. In the event that the Arbitrator awards monetary damages in favor of either any party, the Arbitrator must certify in the award that no indirect, consequential, incidental, indirect or punitive damages are included in such award. If the Arbitrator's decision results in a monetary award, the interest to be granted on such award, if any, and the rate of such interest shall be determined by the Arbitrator in his or her discretion. The arbitration award shall be final and binding on the parties, and judgment thereon may be entered in any court of competent jurisdiction, and may not be appealed except to the extent permitted by the Federal Arbitration Act.
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