Appendix I, Rule 4 Overspill claims – expert determination

Overspill claims – expert determinations

4.1  Any of the issues referred to in Rule 4.2 on which the Association and a Member cannot agree shall be referred to a panel (the “Panel”) constituted in accordance with arrangements established in the Pooling Agreement which, acting as a body of experts and not as an arbitration tribunal, shall determine the issue.

4.2  This Rule 4 shall apply to any issue of whether, for the purpose of applying any of Rules 2.2, 2.3 and 3.3 in relation to any Overspill Claim (the “relevant Overspill Claim”)

(a)   costs have been properly incurred in collecting or seeking to collect Overspill Calls, or

(b)   any Overspill Call or part thereof is economically recoverable, or

(c)   in seeking to collect the funds referred to in Rule 3.3, the Association has taken the steps referred to in that Rule.

4.3  If the Panel has not been constituted at a time when a Member wishes to refer an issue to it, the Association shall, on request by the Member, give a direction for the constitution of the Panel as required under the Pooling Agreement.

4.4  The Association may (and, on the direction of the Member, shall) give such direction as is required under the Pooling Agreement for the formal instruction of the Panel to investigate any issue and to give its determination as soon as reasonably practicable.

4.5  The Panel shall in its discretion decide what information, documents, evidence and submissions it requires in order to determine an issue and how to obtain these, and the Association and the Member shall cooperate fully with the Panel.

4.6  In determining any issue referred to it under this Rule 4 the Panel shall endeavour to follow the same procedures as it follows in determining issues arising in respect of the relevant Overspill Claim which are referred to it under the Pooling Agreement.

4.7  In determining an issue the members of the Panel

(a)   shall rely on their own knowledge and expertise, and

(b)   may rely on any information, documents, evidence or submission provided to it by the Association or the Member as the Panel sees fit.

4.8  If the three members of the Panel cannot agree on any matter, the view of the majority shall prevail.

4.9  The Panel shall not be required to give reasons for any determination.

4.10 The Panel’s determination shall be final and binding upon the Association and the Member (subject only to Rule 4.11) and there shall be no right of appeal from such determination.

4.11 If the Panel makes a determination on an issue referred to in Rule 4.2. paragraphs (b) or (c) the Association or the Member may refer the issue back to the Panel, notwithstanding Clause 4.10, if it considers that the position has materially changed since the Panel made its determination.

4.12  The costs of the Panel shall be paid by the Association.

4.13  Costs, indemnities and other sums payable to the Panel by the Association in relation to any Overspill Claim, whether the reference to the Panel has been made under this Rule 4 or under the Pooling Agreement, shall be deemed to be costs properly incurred by the Association in respect of that Overspill Claim for the purposes specified in Rule 2.2 paragraph (a).