The Millbrook Gas Fired Generating Station Order 2019

Article 36

SCHEDULE 13 E+W+S ARBITRATION RULES

Primary Objective E+W+S

1.  The primary objective of these Arbitration Rules is to achieve a fair, impartial, final and binding award on the substantive difference between the parties (save as to costs) within 4 months from the date the Arbitrator is appointed pursuant to paragraph 63 or 71 of Schedule 10 of the Order.

Commencement Information

I1 Sch. 13 para. 1 in force at 3.4.2019, see art. 1

2.  The Arbitration shall be deemed to have commenced when a party (“the Claimant”) serves a written notice of arbitration on the other party (“the Respondent”). E+W+S

Commencement Information

I2 Sch. 13 para. 2 in force at 3.4.2019, see art. 1

Time Periods E+W+S

3.  All time periods in these Arbitration Rules will be measured in days and this will include weekends, but not bank or public holidays.

Commencement Information

I3 Sch. 13 para. 3 in force at 3.4.2019, see art. 1

4.  Time periods will be calculated from the day after the Arbitrator is appointed which shall be either: E+W+S

(a) the date the Arbitrator notifies the parties in writing of his/her acceptance of an appointment by agreement of the parties; or

(b) the date the Arbitrator is appointed by the Secretary of State.

Commencement Information

I4 Sch. 13 para. 4 in force at 3.4.2019, see art. 1

Timetable E+W+S

5.  The timetable for the Arbitration will be that set out in Rules 6 to 8 below unless amended in accordance with Rule 22.

Commencement Information

I5 Sch. 13 para. 5 in force at 3.4.2019, see art. 1

6.  Within 14 days of the Arbitrator being appointed, the Claimant shall provide both the Respondent and the Arbitrator with: E+W+S

(a) a written Statement of Claim which describes the nature of the difference between the parties, the legal and factual issues, the Claimant's contentions as to those issues, the amount of its claim and/or the remedy it is seeking;

(b) all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports.

Commencement Information

I6 Sch. 13 para. 6 in force at 3.4.2019, see art. 1

7.  Within 14 days of receipt of the Claimant's Rule 6 statements by the Arbitrator and Respondent, the Respondent shall provide the Claimant and the Arbitrator with: E+W+S

(a) a written Statement of Defence responding to the Claimant's Statement of Claim, its statement in respect of the nature of the difference, the legal and factual issues in the Claimant's claim, its acceptance of any element(s) of the Claimant's claim, its contentions as to those elements of the Claimant's claim it does not accept;

(b) all statements of evidence and copies of all documents on which it relies, including contractual documentation, correspondence (including electronic documents), legal precedents and expert witness reports;

(c) any objections it wishes to make to the Claimant's statements, comments on the Claimant's expert report(s) (if submitted by the Claimant) and explanations for the objections.

Commencement Information

I7 Sch. 13 para. 7 in force at 3.4.2019, see art. 1

8.  Within 7 days of the Respondent serving its Rule 7 statements, the Claimant may make a Statement of Reply by providing both the Respondent and the Arbitrator with: E+W+S

(a) a written statement responding to the Respondent's submissions, including its reply in respect of the nature of the difference, the issues (both factual and legal) and its contentions in relation to the issues;

(b) all statements of evidence and copies of documents in response to the Respondent's submissions;

(c) any expert report in response to the Respondent's submissions;

(d) any objections to the statements of evidence, expert reports or other documents submitted by the Respondent;

(e) its written submissions in response to the legal and factual issues involved.

Commencement Information

I8 Sch. 13 para. 8 in force at 3.4.2019, see art. 1

Procedure E+W+S

9.  The parties' pleadings, witness statements and expert reports (if any) shall be concise. No single pleading will exceed 30 single-sided A4 pages using 10pt Arial font.

Commencement Information

I9 Sch. 13 para. 9 in force at 3.4.2019, see art. 1

10.  The Arbitrator shall make an award on the substantive difference(s) based solely on the written material submitted by the parties unless the Arbitrator decides that a hearing is necessary to explain or resolve any matters. E+W+S

Commencement Information

I10 Sch. 13 para. 10 in force at 3.4.2019, see art. 1

11.  Either party may, within 2 days of delivery of the last submission, request a hearing giving specific reasons why it considers a hearing is required. E+W+S

Commencement Information

I11 Sch. 13 para. 11 in force at 3.4.2019, see art. 1

12.  Within 7 days of receiving the last submission, the Arbitrator will notify the parties whether a hearing is to be held and the length of that hearing. E+W+S

Commencement Information

I12 Sch. 13 para. 12 in force at 3.4.2019, see art. 1

13.  Within 10 days of the Arbitrator advising the parties that he will hold a hearing, the date and venue for the hearing will be fixed by agreement with the parties, save that if there is no agreement the Arbitrator shall direct a date and venue which he considers is fair and reasonable in all the circumstances. The date for the hearing shall not be less than 35 days from the date of the Arbitrator's direction confirming the date and venue of the hearing. E+W+S

Commencement Information

I13 Sch. 13 para. 13 in force at 3.4.2019, see art. 1

14.  A decision will be made by the Arbitrator on whether there is any need for expert evidence to be submitted orally at the hearing. If oral expert evidence is required by the Arbitrator, then any expert(s) attending the hearing may be asked questions by the Arbitrator. E+W+S

Commencement Information

I14 Sch. 13 para. 14 in force at 3.4.2019, see art. 1

15.  There will be no process of examination and cross-examination of experts, but the Arbitrator shall invite the parties to ask questions of the experts by way of clarification of any answers given by the expert(s) in response to the Arbitrator's questions. Prior to the hearing the procedure for the expert(s) will be that: E+W+S

(a) At least 28 days before a hearing, the Arbitrator will provide a list of issues to be addressed by the expert(s);

(b) If more than one expert is called, they will jointly confer and produce a joint report or reports within 14 days of the issues being provided; and

(c) The form and content of a joint report shall be as directed by the Arbitrator and must be provided at least 7 days before the hearing.

Commencement Information

I15 Sch. 13 para. 15 in force at 3.4.2019, see art. 1

16.  Within 14 days of a Hearing or a decision by the Arbitrator that no hearing is to be held the Parties may by way of exchange provide the Arbitrator with a final submission in connection with the matters in dispute and any submissions on costs. The Arbitrator shall take these submissions into account in the Award. E+W+S

Commencement Information

I16 Sch. 13 para. 16 in force at 3.4.2019, see art. 1

17.  The Arbitrator may make other directions or rulings as considered appropriate in order to ensure that the parties comply with the timetable and procedures to achieve an award on the substantive difference within 4 months of the date on which he/she is appointed, unless both parties otherwise agree to an extension to the date for the award. E+W+S

Commencement Information

I17 Sch. 13 para. 17 in force at 3.4.2019, see art. 1

18.  If a party fails to comply with the timetable, procedure or any other direction then the Arbitrator may continue in the absence of a party or submission or document, and may make a decision on the information before him/her attaching the appropriate weight to any evidence submitted beyond any timetable or in breach of any procedure and/or direction. E+W+S

Commencement Information

I18 Sch. 13 para. 18 in force at 3.4.2019, see art. 1

19.  The Arbitrator's award shall include reasons. The parties shall accept that the extent to which reasons are given shall be proportionate to the issues in dispute and the time available to the Arbitrator to deliver the award. E+W+S

Commencement Information

I19 Sch. 13 para. 19 in force at 3.4.2019, see art. 1

Arbitrator's Powers E+W+S

20.  The Arbitrator has all the powers of the Arbitration Act 1996, including the non-mandatory sections, save where modified by these Rules.

Commencement Information

I20 Sch. 13 para. 20 in force at 3.4.2019, see art. 1

21.  There shall be no discovery or disclosure, except that the Arbitrator shall have the power to order the parties to produce such documents as are reasonably requested by another party no later than the Statement of Reply, or by the Arbitrator, where the documents are manifestly relevant, specifically identified and the burden of production is not excessive. Any application and orders should be made by way of a Redfern Schedule without any hearing. E+W+S

Commencement Information

I21 Sch. 13 para. 21 in force at 3.4.2019, see art. 1

22.  Any time limits fixed in accordance with this procedure or by the Arbitrator may be varied by agreement between the parties, subject to any such variation being acceptable to and approved by the Arbitrator. In the absence of agreement, the Arbitrator may vary the timescales and/or procedure: E+W+S

(a) if the Arbitrator is satisfied that a variation of any fixed time limit is reasonably necessary to avoid a breach of the rules of natural justice and then;

(b) only for such a period that is necessary to achieve fairness between the parties.

Commencement Information

I22 Sch. 13 para. 22 in force at 3.4.2019, see art. 1

23.  On the date the award is made, the Arbitrator will notify the parties that the award is completed, signed and dated, and that it will be issued to the parties on receipt of cleared funds for the Arbitrator's fees and expenses. E+W+S

Commencement Information

I23 Sch. 13 para. 23 in force at 3.4.2019, see art. 1

Costs E+W+S

24.  The costs of the Arbitration shall include the fees and expenses of the Arbitrator, the reasonable fees and expenses of any experts and the reasonable legal and other costs incurred by the parties for the Arbitration.

Commencement Information

I24 Sch. 13 para. 24 in force at 3.4.2019, see art. 1

25.  Where the difference involves connected/interrelated issues, the Arbitrator will consider the relevant costs collectively. E+W+S

Commencement Information

I25 Sch. 13 para. 25 in force at 3.4.2019, see art. 1

26.  The final award shall fix the costs of the arbitration and decide which of the parties shall bear them or in what proportion they shall be borne by the parties. E+W+S

Commencement Information

I26 Sch. 13 para. 26 in force at 3.4.2019, see art. 1

27.  The Arbitrator will award recoverable costs on the general principle that costs follow the event, having regard to all material circumstances, including such matters as exaggerated claims and/or defences, the degree of success for different elements of the claims, claims that have incurred substantial costs, the conduct of the parties and the degree of success of a party. E+W+S

Commencement Information

I27 Sch. 13 para. 27 in force at 3.4.2019, see art. 1

Confidentiality E+W+S

28.  The parties agree that any hearings in this Arbitration shall take place in private.

Commencement Information

I28 Sch. 13 para. 28 in force at 3.4.2019, see art. 1

29.  The parties and Arbitrator agree that any matters, materials, documents, awards, expert reports and the like are confidential and shall not be disclosed to any third party without prior written consent of the other party, save for any application to the Courts. E+W+S

Commencement Information

I29 Sch. 13 para. 29 in force at 3.4.2019, see art. 1