Public-private partnership agreement

Dispute resolution

26.1. Amicable Negotiations

26.1.1 Save where expressly stated to the contrary in this PPPA, any dispute, difference, claim or controversy of whatever nature between the Parties, howsoever arising under, out of or in relation to this PPPA (including a dispute regarding the existence, validity or termination of this PPPA or Clause 26 or any non-contractual obligation arising out of or in connection with this PPPA) must be notified in writing by a Party to the other Parties (a "Dispute"). The Parties shall, in the first instance, attempt to resolve a Dispute amicably and in good faith through discussions between representatives of each Party with the appropriate decision­ making authority. In the event the Parties are unable to negotiate a final settlement within:

1. 
   7 (seven) days, for a Dispute relating to any of the Public Partner's payment obligations under this PPPA (a "Public Partner Payment Dispute"); or
   

2. 
   20 (twenty) days, for any other Dispute;
   

then any Party may refer the matter to arbitration under Clause 26.3, or to the Independent Expert under Clause 26.2 if the Dispute is of a technical nature only and does not include a Public Partner Payment Dispute.

26.2. Determination by an Independent Expert

26.2.1 The Independent Expert shall not be:

1. 
   a current or former agent, employee or contractor of either Party;
   
2. 
   a current or former employee or agent of the Government of the Republic of Moldova or have any direct relationship with it or with any Public Body having jurisdiction over the Project.
   

26.2.2 The Independent Expert will be appointed by the following process:

1. 
   the Party or Parties seeking to refer a Dispute to the Independent Expert (the "Referring Party") shall provide to the other Party or Parties (the "Receiving Party") a written notice of the referral, which includes the name of the person the Referring Party nominates as the Independent Expert and an outline of their relevant expertise;
   

2. 
   the Receiving Party shall, within 5 (five) days of receiving such notice, notify the Referring Party in writing of its agreement or objection (together with an outline of the reasons for objection) to the person nominated as the Independent Expert. If the Receiving Party fails to respond within the 5 (five) day period, it will be deemed to have accepted the person nominated by the Referring Party as the Independent Expert;
   

3. 
   if the Receiving Party objects to the person nominated by the Referring Party, the Parties shall, for a further period of 5 (five) days, attempt in good faith to agree upon the person to be appointed as the Independent Expert; and
   

4. 
   if the Parties are unable to agree on an Independent Expert at the end of the 5 (five) day period, either Party may commence arbitration pursuant to Clause 26.3.
   

26.2.3 The Independent Expert process is as follows:

1. 
   where a Party or the Independent Expert is required in this Clause to provide a written notice, statement or supporting documentation to the other, at the same time copies of that material will be provided to the other participants in the Independent Expert Process;
   

(ii) within 5 (five) days of the appointment of the Independent Expert, the Referring Party shall submit to the Independent Expert and to the Receiving Party a written statement including a description of the Dispute and its submissions in support of its position, and any supporting documentation;

3. 
   within 5 (five) days of the receipt of that material, the Receiving Party may submit to the Independent Expert and the Referring Party, a written statement of its submissions in response (including any objections or corrections to the Referring Party's description of the Dispute) and any supporting documentation; and
   

1. 
   the Independent Expert shall consider all information provided to it, and may request additional information in writing to the Parties;
   
2. 
   a Party who receives a request for additional information from the Independent Expert shall respond to that request within 5 (five) days of receipt of the request;
   

3. 
   the other Party shall then have 5 (five) days following receipt of the additional material to submit to the Independent Expert any further additional material in response;
   

4. 
   if a Party does not provide additional information to the Independent Expert under (v) or (vi) above, the Independent Expert is entitled to assume that the Party has no information to provide in support of its position in the Dispute;
   

5. 
   the Independent Expert shall provide a written recommendation to the Parties within 15 (fifteen) days of the date of receipt by it of the latest documents provided by the Parties, and in any case no later than 30 (thirty) days after its appointment, unless an extension is agreed with the Parties;
   

6. 
   the Parties shall provide written notification to each other of their acceptance of or objection to the Independent Expert's recommendation within 5 (five) days of receiving it; and
   
7. 
   any Party may refer the Dispute to arbitration under Clause 26.3 if:
   

1. 
   the Independent Expert does not provide his recommendation within the timeframes provided above; or
   
2. 
   any Party objects to or does not accept the Independent Expert's recommendation within 5 (five) days of receipt of it.
   

26.2.4 Each Party agrees to bear its own costs of the Independent Expert process and the Independent Expert's fees and reasonable costs will be borne equally by the Parties.

26.3. Arbitration

26.3.1 After the expiry of any relevant time periods in Clauses 26.1 and 26.2, any Dispute that is not resolved under those Clauses may be referred by either Party to, and finally resolved by, arbitration in London, England conducted in English by three arbitrators under the International Chamber of Commerce (ICC) Arbitration Rules, save that, unless the Parties agree otherwise:

1. 
   the claimant(s), irrespective of number, shall nominate jointly one arbitrator;
   
2. 
   the respondent(s), irrespective of number, shall nominate jointly the second arbitrator;
   

3. 
   the third arbitrator (who shall act as Chairman) shall be nominated by the two arbitrators nominated by or on behalf of the claimant(s) and respondent(s) or, in the absence of agreement on the third arbitrator within 15 (fifteen) days of the date of nomination of the later of the two party-nominated arbitrators to be nominated, he shall be chosen by the ICC Court of Arbitration;
   

4. 
   no arbitrator shall be of the same nationality as any Party; and
   

5. 
   no Party shall be required to give general discovery of documents, but may be required only to produce specific, identified documents which are relevant to the Dispute the subject of the arbitration.
   

26.3.2 For the purposes of an arbitration pursuant to Clause 26.3, each Party agrees that it unconditionally and irrevocably waives its rights to:

1. 
   apply to a court to determine any question of law arising in the course of those arbitral proceedings; and
   
2. 
   appeal to a court on a question of law arising out of an award made in the arbitral proceedings.
   

26.3.3 Clause 26 is governed by Moldovan law except for procedural rules.

26.3.4 The provisions of Clause 26 shall survive termination of the PPPA.

26.3.5 The Parties hereby declare that they have the capacity, and have obtained all necessary authorisations and approvals, to submit all the Disputes to arbitration pursuant to the provisions of this Clause 26, and hereby waive any right to claim lack of capacity. The lack of capacity to submit to arbitration on the part of one of the Parties shall in no way affect the validity of the arbitration clause, which shall remain in force and binding on the Parties.

24.