Common use of Expert Review Clause in Contracts

Expert Review. 3.3.1 This Clause 3.3 only applies where the Base Access Charge elements and/or any other changes to this Schedule are referred to an expert for review pursuant to Clause 3.2 of this Schedule 3. 3.3.2 Where a matter is to be referred to an expert pursuant to Clause 3.2 of this Schedule, the matter must be referred for determination by a person: (a) who is appointed by the Parties, or in default of such appointment within fourteen (14) days after either Party giving notice in writing to the other Party requiring the appointment of an expert then that person is to be nominated at either Party’s request by the President for the time being of the Australian Society of Certified Practising Accountants; (b) who has appropriate qualifications and practical experience having regard to the nature of the matter in dispute; (c) who has no interest or duty which conflicts or may conflict with his function as expert, he being required to fully disclose any such interest or duty by written notice to the Parties before his appointment; (d) who is not an employee of the Operator, the End User or Aurizon Network or of a Related Body Corporate of any of them; (e) who shall not be permitted to act until he has given written notice to both Parties that he is willing and able to accept the appointment; and (f) who shall be deemed to be and shall act as an expert and not an arbitrator and the law relating to arbitration including without limitation, the Commercial Arbitration Act 1990 (Qld) shall not apply to him or his determination or the procedures by which he may reach his determination. 3.3.3 Aurizon Network will provide the expert with documentation to support the Aurizon Network determination of the Base Access Charge elements and/or any other changes to this Schedule. The expert may request any other documentation from either Party or any other party as it sees fit in order to determine the outcome of the dispute. 3.3.4 The expert shall be required to undertake to keep confidential all matters coming to its knowledge by reason of the expert’s appointment and performance of its duties, other than that already in the public domain. The expert shall not include such information in its reasons for reaching the determination. 3.3.5 The expert shall review the Aurizon Network documentation and either: (a) uphold the Aurizon Network Base Access Charge elements and/or any other changes to this Schedule proposed by Aurizon Network; or (b) where the expert believes the Aurizon Network provided Base Access Charge elements and/or any other changes to this Schedule have not been determined consistent with Aurizon Network’s Access Undertaking and the relevant Reference Tariff Schedule, the expert shall seek to reach agreement with Aurizon Network as to, and failing agreement shall determine, appropriate Base Access Charge elements and/or any other changes to this Schedule, having regard to: (i) the new relevant Reference Tariffs; (ii) the differences between the relevant Train Service and the Reference Train Service defined in the relevant Reference Tariff Schedule; (iii) other related factors in the relevant Reference Tariff Schedule; and (iv) Aurizon Network’s Access Undertaking. 3.3.6 The expert will report its findings to Aurizon Network and the Operator and the reasons for such assessment. 3.3.7 In the absence of manifest error, the decision of the expert shall be final and binding upon the Parties. 3.3.8 The costs of the expert and any advisers to the expert shall be borne by: (a) the Operator in the event that the expert does not adjust the Base Access Charge elements and/or any other changes to this Schedule most recently proposed by Aurizon Network prior to referral to the expert; (b) Aurizon Network in the event that the Base Access Charge elements and/or any other changes to this Schedule are varied from those most recently proposed by Aurizon Network prior to referral to the expert; or (c) in such other proportion as the expert considers appropriate.

Expert Review. 3.3.1 This Clause 3.3 only applies where the Base Access Charge elements and/or any other changes to this Schedule are referred to an expert for review pursuant to Clause 3.2 of this Schedule 3. 3.3.2 Where a matter is to be referred to an expert pursuant to Clause 3.2 of this Schedule, the matter must be referred for determination by a person: (a) who is appointed by the Parties, or in default of such appointment within fourteen (14) days after either Party giving notice in writing to the other Party requiring the appointment of an expert then that person is to be nominated at either Party’s request by the President for the time being of the Australian Society of Certified Practising Accountants; (b) who has appropriate qualifications and practical experience having regard to the nature of the matter in dispute; (c) who has no interest or duty which conflicts or may conflict with his function as expert, he being required to fully disclose any such interest or duty by written notice to the Parties before his appointment; (d) who is not an employee of the Operator, the End User or Aurizon QR Network or of a Related Body Corporate of any of them; (e) who shall not be permitted to act until he has given written notice to both Parties that he is willing and able to accept the appointment; and (f) who shall be deemed to be and shall act as an expert and not an arbitrator and the law relating to arbitration including without limitation, the Commercial Arbitration Act 1990 (Qld) shall not apply to him or his determination or the procedures by which he may reach his determination. 3.3.3 Aurizon QR Network will provide the expert with documentation to support the Aurizon QR Network determination of the Base Access Charge elements and/or any other changes to this Schedule. The expert may request any other documentation from either Party or any other party as it sees fit in order to determine the outcome of the dispute. 3.3.4 The expert shall be required to undertake to keep confidential all matters coming to its knowledge by reason of the expert’s appointment and performance of its duties, other than that already in the public domain. The expert shall not include such information in its reasons for reaching the determination. 3.3.5 The expert shall review the Aurizon QR Network documentation and either: (a) uphold the Aurizon QR Network Base Access Charge elements and/or any other changes to this Schedule proposed by Aurizon QR Network; or (b) where the expert believes the Aurizon QR Network provided Base Access Charge elements and/or any other changes to this Schedule have not been determined consistent with Aurizon QR Network’s Access Undertaking and the relevant Reference Tariff Schedule, the expert shall seek to reach agreement with Aurizon QR Network as to, and failing agreement shall determine, appropriate Base Access Charge elements and/or any other changes to this Schedule, having regard to: (i) the new relevant Reference Tariffs; (ii) the differences between the relevant Train Service and the Reference Train Service defined in the relevant Reference Tariff Schedule; (iii) other related factors in the relevant Reference Tariff Schedule; and (iv) Aurizon QR Network’s Access Undertaking. 3.3.6 The expert will report its findings to Aurizon QR Network and the Operator and the reasons for such assessment. 3.3.7 In the absence of manifest error, the decision of the expert shall be final and binding upon the Parties. 3.3.8 The costs of the expert and any advisers to the expert shall be borne by: (a) the Operator in the event that the expert does not adjust the Base Access Charge elements and/or any other changes to this Schedule most recently proposed by Aurizon QR Network prior to referral to the expert; (b) Aurizon QR Network in the event that the Base Access Charge elements and/or any other changes to this Schedule are varied from those most recently proposed by Aurizon QR Network prior to referral to the expert; or (c) in such other proportion as the expert considers appropriate.

Expert Review. Formatted: Font: Bold 3.3.1 This Clause 3.3 [3.3/2.3] only applies where the Base Access Charge elements elements, Take or Pay methodology and/or any other changes to this Schedule are referred to an expert for review pursuant to Clause 3.2 [3.2/2.2] of this Schedule 3Schedule 3. 3.3.2 Where a matter is to be referred to an expert pursuant to Clause 3.2 [3.2/2.2] of this Schedule, the matter must be referred for determination by a person: (a) who is appointed by the Parties, or in default of such appointment within fourteen (14) days after either Party giving notice in writing to the other Party requiring the appointment of an expert then that person is to be nominated at either Party’s request by the President for the time being of the Australian Society of Certified Practising Accountants; (b) who has appropriate qualifications and practical experience having regard to the nature of the matter in dispute; (c) who has no interest or duty which conflicts or may conflict with his function as expert, he being required to fully disclose any such interest or duty by written notice to the Parties before his appointment; (d) who is not an employee of the OperatorEnd User, the End User an Operator or Aurizon QR Network or of a Related Body Corporate of any of them; (e) who shall not be permitted to act until he has given written notice to both Parties that he is willing and able to accept the appointment; and (f) who shall be deemed to be and shall act as an expert and not an arbitrator and the law relating to arbitration including without limitation, the Commercial Arbitration Act 1990 (Qld) shall not apply to him or his determination or the procedures by which he may reach his determination.. 18724028 3.3.3 Aurizon QR Network will provide the expert with documentation to support the Aurizon QR Network determination of the Base Access Charge elements elements, Take or Pay methodology and/or any other changes to this Schedule. The expert may request any other documentation from either Party or any other party as it sees fit in order to determine the outcome of the dispute. 3.3.4 The expert shall be required to undertake to keep confidential all matters coming to its knowledge by reason of the expert’s appointment and performance of its duties, other than that already in the public domain. The expert shall not include such information in its reasons for reaching the determination. 3.3.5 The expert shall review the Aurizon QR Network documentation and either: (a) uphold the Aurizon QR Network Base Access Charge elements elements, Take or Pay methodology and/or any other changes to this Schedule proposed by Aurizon QR Network; or (b) where the expert believes the Aurizon QR Network provided Base Access Charge elements elements, Take or Pay methodology and/or any other changes to this Schedule have not been determined consistent with Aurizon QR Network’s Access Undertaking and the relevant Reference Tariff Schedule, the expert shall seek to reach agreement with Aurizon QR Network as to, and failing agreement shall determine, appropriate Base Access Charge elements elements, Take or Pay methodology and/or any other changes to this Schedule, having regard to: (i) the new relevant Reference Tariffs; (ii) the differences between the relevant Train Service and the Reference Train Service defined in the relevant Reference Tariff Schedule; (iii) other related factors in the relevant Reference Tariff Schedule; and (iv) Aurizon Network’s Access Undertaking. 3.3.6 The expert will report its findings to Aurizon Network and the Operator and the reasons for such assessment. 3.3.7 In the absence of manifest error, the decision of the expert shall be final and binding upon the Parties. 3.3.8 The costs of the expert and any advisers to the expert shall be borne by: (a) the Operator in the event that the expert does not adjust the Base Access Charge elements and/or any other changes to this Schedule most recently proposed by Aurizon Network prior to referral to the expert; (b) Aurizon Network in the event that the Base Access Charge elements and/or any other changes to this Schedule are varied from those most recently proposed by Aurizon Network prior to referral to the expert; or (c) in such other proportion as the expert considers appropriate.

Expert Review. 3.3.1 This Clause 3.3 only applies where the Base Access Charge elements and/or any other changes to this Schedule are referred to an expert for review pursuant to Clause 3.2 of this Schedule 3Schedule 3. 3.3.2 Where a matter is to be referred to an expert pursuant to Clause 3.2 of this Schedule, the matter must be referred for determination by a person: (a) who is appointed by the Parties, or in default of such appointment within fourteen (14) days after either Party giving notice in writing to the other Party requiring the appointment of an expert then that person is to be nominated at either Party’s Party‟s request by the President for the time being of the Australian Society of Certified Practising Accountants; (b) who has appropriate qualifications and practical experience having regard to the nature of the matter in dispute; (c) who has no interest or duty which conflicts or may conflict with his function as expert, he being required to fully disclose any such interest or duty by written notice to the Parties before his appointment; (d) who is not an employee of the Operator, the an End User or Aurizon QR Network or of a Related Body Corporate of any of them; (e) who shall not be permitted to act until he has given written notice to both Parties that he is willing and able to accept the appointment; and (f) who shall be deemed to be and shall act as an expert and not an arbitrator and the law relating to arbitration including without limitation, the Commercial Arbitration Act 1990 (Qld) shall not apply to him or his determination or the procedures by which he may reach his determination. 3.3.3 Aurizon QR Network will provide the expert with documentation to support the Aurizon QR Network determination of the Base Access Charge elements and/or any other changes to this Schedule. The expert may request any other documentation from either Party or any other party as it sees fit in order to determine the outcome of the dispute. 3.3.4 The expert shall be required to undertake to keep confidential all matters coming to its knowledge by reason of the expert’s expert‟s appointment and performance of its duties, other than that already in the public domain. The expert shall not include such information in its reasons for reaching the determination. 3.3.5 The expert shall review the Aurizon QR Network documentation and either: (a) uphold the Aurizon QR Network Base Access Charge elements and/or any other changes to this Schedule proposed by Aurizon QR Network; or (b) where the expert believes the Aurizon QR Network provided Base Access Charge elements and/or any other changes to this Schedule have not been determined consistent with Aurizon Network’s QR Network‟s Access Undertaking and the relevant Reference Tariff Schedule, the expert shall seek to reach agreement with Aurizon QR Network as to, and failing agreement shall determine, appropriate Base Access Charge elements and/or any other changes to this Schedule, having regard to: (i) the new relevant Reference Tariffs; (ii) the differences between the relevant Train Service and the Reference Train Service defined in the relevant Reference Tariff Schedule; (iii) other related factors in the relevant Reference Tariff Schedule; and (iv) Aurizon Network’s Access Undertaking. 3.3.6 The expert will report its findings to Aurizon Network and the Operator and the reasons for such assessment. 3.3.7 In the absence of manifest error, the decision of the expert shall be final and binding upon the Parties. 3.3.8 The costs of the expert and any advisers to the expert shall be borne by: (a) the Operator in the event that the expert does not adjust the Base Access Charge elements and/or any other changes to this Schedule most recently proposed by Aurizon Network prior to referral to the expert; (b) Aurizon Network in the event that the Base Access Charge elements and/or any other changes to this Schedule are varied from those most recently proposed by Aurizon Network prior to referral to the expert; or (c) in such other proportion as the expert considers appropriate.

Expert Review. Formatted: Font: Bold, Not All caps 3.3.1 This Clause 3.3 only applies where the Base Access Charge elements and/or any other changes to this Schedule are referred to an expert for review pursuant to Clause 3.2 of this Schedule 3Schedule 3. 3.3.2 Where a matter is to be referred to an expert pursuant to Clause 3.2 of this Schedule, the matter must be referred for determination by a person: (a) who is appointed by the Parties, or in default of such appointment within fourteen (14) days after either Party giving notice in writing to the other Party requiring the appointment of an expert then that person is to be nominated at either Party’s request by the President for the time being of the Australian Society of Certified Practising Accountants; (b) who has appropriate qualifications and practical experience having regard to the nature of the matter in dispute; (c) who has no interest or duty which conflicts or may conflict with his function as expert, he being required to fully disclose any such interest or duty by written notice to the Parties before his appointment; (d) who is not an employee of the Operator, the End User or Aurizon QR Network or of a Related Body Corporate of any of them; (e) who shall not be permitted to act until he has given written notice to both Parties that he is willing and able to accept the appointment; and (f) who shall be deemed to be and shall act as an expert and not an arbitrator and the law relating to arbitration including without limitation, the Commercial Arbitration Act 1990 (Qld) shall not apply to him or his determination or the procedures by which he may reach his determination. 3.3.3 Aurizon QR Network will provide the expert with documentation to support the Aurizon QR Network determination of the Base Access Charge elements and/or any other changes to this Schedule. The expert may request any other documentation from either Party or any other party as it sees fit in order to determine the outcome of the dispute. 3.3.4 The expert shall be required to undertake to keep confidential all matters coming to its knowledge by reason of the expert’s appointment and performance of its duties, other than that already in the public domain. The expert shall not include such information in its reasons for reaching the determination. 3.3.5 The expert shall review the Aurizon QR Network documentation and either: (a) uphold the Aurizon QR Network Base Access Charge elements and/or any other changes to this Schedule proposed by Aurizon QR Network; or (b) where the expert believes the Aurizon QR Network provided Base Access Charge elements and/or any other changes to this Schedule have not been determined consistent with Aurizon QR Network’s Access Undertaking and the relevant Reference Tariff Schedule, the expert shall seek to reach agreement with Aurizon QR Network as to, and failing agreement shall determine, appropriate Base Access Charge elements and/or any other changes to this Schedule, having regard to: (i) the new relevant Reference Tariffs; (ii) the differences between the relevant Train Service and the Reference Train Service defined in the relevant Reference Tariff Schedule; (iii) other related factors in the relevant Reference Tariff Schedule; and (iv) Aurizon QR Network’s Access Undertaking. 3.3.6 The expert will report its findings to Aurizon QR Network and the Operator and the reasons for such assessment. 3.3.7 In the absence of manifest error, the decision of the expert shall be final and binding upon the Parties. 3.3.8 The costs of the expert and any advisers to the expert shall be borne by: (a) the Operator in the event that the expert does not adjust the Base Access Charge elements and/or any other changes to this Schedule most recently proposed by Aurizon QR Network prior to referral to the expert; (b) Aurizon QR Network in the event that the Base Access Charge elements and/or any other changes to this Schedule are varied from those most recently proposed by Aurizon QR Network prior to referral to the expert; or (c) in such other proportion as the expert considers appropriate.