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EXPERT DETERMINATION RULES |
1.0 Expert Determination
1.1 Where the parties have agreed to refer any contention or disagreement (matter) to Expert Determination under these Rules, such matter will be fully and finally resolved by Expert Determination of a Sole Expert (Expert) appointed in accordance with the Rules set out herein.
1.2 Reference of a matter to Expert Determination shall not be a condition precedent for its reference to arbitration, adjudication and or other form of mechanism of dispute resolution Parties’ rights to refer the matter to arbitration, adjudication and/or any other form of dispute resolution shall not be affected by these Rules. Parties are, however, bound by the Expert Determination of the Expert as provided for in Rule 2.5 below.
2.0 The Expert
2.1 Consultation: unless otherwise determined by the Expert and agreed with the parties, no one party or anyone acting on one party’s behalf shall communicate with the Expert in the absence of the other party. The Expert must not consult with a party other than in the presence of the other party except where a party, having received a notice under Rule 7.1.2, has failed to make a written submission or appear at meeting.
2.2 Disclosure: except as provided in Rule 7.4, the Expert must disclose all information and documents received from any party to all other parties.
2.3 Discretion: at the request in writing of either party, and either with the agreement of all other parties or of his own motion, the Expert shall have discretion (a) to amend the time limits set out in these Rules and/or (b) to amend any of the procedural rules in Rule 7.0. The Expert’s decision as to his exercise of this discretion shall be final.
2.4 Evidence: the Expert is not bound by the rules of evidence and may at his discretion receive and take into consideration any information submitted to him by either party in such manner as he thinks fit and may give such weight to the same as he considers appropriate.
2.5 Final and binding: in submitting any matter for Expert Determination in writing, the parties agree that the Expert Determination of the Expert in relation to the matter submitted to him shall be final and binding on the parties and enforceable by the parties and that they will comply with and implement and give full effect to the Expert Determination.
2.6 Function: the Expert shall act as an Expert and shall determine the matter before him. The Expert shall not act as an arbitrator or adjudicator, nor as an expert witness. The parties agree that the Expert Determination process is not an arbitration or adjudication within the meaning of any statute.
2.7 Incapacity, resignation or death: if the Expert is unable to reach a determination in accordance with a timetable acceptable to the parties or otherwise set out in Rule 7.0 due to incapacity or termination by mutual agreement of the parties, the Expert shall withdraw from the determination, retain any interim payments that have been made in the course of the procedure, forego the rest of his fee and arrange for the documents to be returned to the parties. The President (President or Deputy President of the Pertubuhan Akitek Malaysia [PAM]) will then appoint another Expert, if the parties wish. If the Expert is incapacitated to reach a determination he shall resign from the determination, forego his fee and repay any interim payments already made in the course of the procedure and arrange for the documents to be returned to the parties. The President will then appoint another Expert, if the parties wish. If the Expert dies during the course of the determination, the president will appoint another Expert if the parties wish. The substitute Expert is to complete the Expert Determination in accordance with Rule 7.0.
2.8 Indemnity: the Expert shall not voluntarily (a) provide oral evidence or (b) divulge, produce or disseminate or provide details (in whole or in part) of any documents or information arising from the Expert Determination to any person or body other than the parties. The Expert will only be released from the requirements of this sub-rule where he is under a legal obligation to provide oral evidence or other details, including where he has been ordered to do so by a court of competent jurisdiction.
2.9 Liability: the Expert shall not be liable for any act or omission arising from the Expert Determination under these Rules unless such act or omission is shown to have been fraudulent or deceitful. PAM and any officer, or employee or agent or authorized representative of PAM shall not be liable for any such act or omission of the expert.
2.10 Matter: ‘technical issues’ which are the subject of contention or disagreement.
2.11 Neutrality: the Expert must act with impartiality, with no vested interest in the outcome of the matter and must not be biased in any way towards or against either party. If the Expert becomes aware of any circumstance which might reasonably be considered to affect his ability to act impartially, he must inform the parties and the President immediately. The parties must then inform the Expert and the President within ten days whether or not they agree to continue the determination with the Expert. If either party considers that the Expert should withdraw, the President will decide whether the Expert is to withdraw. The President’s decision will be binding. The President shall appoint a substitute Expert if he decides that the Expert should withdraw.
2.12 Role: the Expert will adopt the rules set out in these Rules.
3.0 Scope of Expert Determination
3.1 Expert Determination under these Rules is initiated by any party issuing a request for Expert Determination to the other party, specifying and summarizing the nature of the technical disagreement and requesting for submission of the matter to an independent Expert under the PAM Expert Determination Rules, ‘Request for Expert Determination’.
3.2 Disagreements between the parties, which are appropriate for reference to and resolution by Expert Determination under these Rules are matters which relate to the technical issues in relation to the works under the Contract, as opposed to matters which involve legal issues and interpretation of the PAM Conditions of Contract . As an illustration (but without limitation), technical matters relate to issues such as defects and making good of defects, technical specifications and drawings, and compliance or non-compliance thereof.
3.3 Notwithstanding Rule 3.1, where the parties agree to refer any disagreement to Expert Determination under these Rules, the Expert Determination of the Expert may not be challenged on the ground that the Expert Determination of the matter/s involves interpretation by the Expert of any provisions, terms, specifications and documents under or in relation to the contract between them in order to decide on the matter/s referred to him for determination.
3.4 Where any matter/s are referred to Expert Determination under the PAM Expert Determination Rules by the parties to the Main Contract (i.e. between the Employer and the Contractor) as well as the parties to the Sub-Contract under the Main Contract (i.e. between the Contractor and Sub-Contractor) and both the matters under the Main Contract and the Sub-Contract relate to the same technical issues or same technical disputes, then all the parties shall endeavor to appoint the same Expert under these Rules.
4.0 Terms of Reference
4.1 Application of PAM Expert Determination Rules: for the avoidance of doubt, the following provisions and all other provisions and procedures in these Rules apply to the Expert Determination irrespective of whether the Expert is appointed by the parties or by the President.
4.2 Confidentiality: the parties, the Expert and PAM will keep the Expert Determination process private and confidential among themselves, except to the extent that it is necessary in order to implement the Expert Determination or is required by law.
4.3 Costs: unless otherwise agreed between the parties, each party shall pay its own costs of or incidental to the procedure. Unless otherwise agreed in writing between the parties, the parties shall be jointly and severally liable for the costs of the procedure, and shall pay these costs in equal shares.
4.4 Documents: The parties shall ensure that copies of all documents sent or given to the Expert by any party are the same and at the same time sent or given to the other party (unless otherwise agreed).
4.5 Language: the determination shall be conducted in English and the parties will provide to the Expert, at their own expense, translations into English of any documents and communications in another language, if requested by the Expert.
4.6 Law: Malaysian law applies to the Expert Determination under these Rules.
5.0 Appointment of Expert
5.1 If the parties have agreed to resolve any matter by Expert Determination under these Rules, the Expert is to be appointed by the following procedure.
5.2 Within 14 days after the Request for Expert Determination, the other party is to respond as to whether the other party agrees or does not agree to submit the technical issue/s or any of the matters to Expert Determination (“Response to the Request for Expert Determination”). If the other party agrees to submit the specified technical issue/s to Expert Determination in his Response, then the Expert Determination is to proceed in accordance with the PAM Expert Determination Rules.
5.3 Within 14 days after the issuance of the Response to Request for Expert Determination, the parties are to agree to the identity of the Expert and inform The PAM Secretariat in writing accordingly.
5.4 In their communications with any nominated Expert inviting him to conduct the Expert Determination, the parties are to submit brief outlines of the nature of the disagreement of the matter containing only enough information on the technical issues (including the specific work or equipment or material on which there is a disagreement, the parties respective potions and technical disagreement in relation to the matter) by completing the ‘Memorandum of Issues for decision in the Expert Determination’ to enable the nominated Expert to identify any possible conflicts of interest and to decide whether to accept the appointment.
5.5 If the parties do not within the said 14 days (or any extended period agreed by the parties) agree to the identity and appointment of the Expert, either party may submit a request in writing to the President to appoint the Expert with the completed ‘Memorandum of Issues for Expert Determination’, attaching copies of their respective requests and responses for submission of the technical issue/s to Expert Determination, providing a brief summary or their respective summaries of the nature of the technical issues and the names of the Experts already nominated but not agreed by the parties.
5.6 The President will appoint the Expert having regard to any firms or individuals whom the President is asked not to appoint, and having had regard to any conflicts of interest which may be reported to the President by the Expert whom the President intends to appoint.
5.7 Within 28 days of receiving such “Memorandum of Issues for Expert Determination”, and upon receipt of the requisite non-refundable appointment fee currently in force, the President will appoint the Expert after obtaining the consent of the Expert to be appointed and a declaration of his impartiality and independence.
5.8 Upon appointment of the Expert, PAM will notify the parties of the as appointed Expert. The Expert will then issue to the parties his ‘Terms of Engagement of the Expert’ as to the Expert’s fees, expenses and costs based on the “Memorandum of Issues for Decision in the Expert Determination” for the parties agreement.
5.9 Notwithstanding the above, if the President considers that the Appointment Request relates to a matter which is not appropriate for Expert Determination but by other dispute resolution mechanisms available to the parties, then PAM may decline to appoint an Expert.
5.10 At the commencement of the Expert Determination the following shall be completed and signed accordingly: 4 (a) “Terms of Engagement of the Expert” ( sample form issued by PAM refers and jointly agreed by the parties and the Expert). (b) “Memorandum of Issues for Decision in the Expert Determination” (sample form issued by the PAM jointly agreed by the parties) setting out a list of specific issues on which the Expert is to make his decision. This list and the Expert’s decisions thereon are binding on the parties until the conclusion of the Expert Determination (subject to any changes mutually agreed by both parties prior to his Expert Determination), and the parties waive any right to object to his jurisdiction to decide those disagreements and issues listed in the “Memorandum of Issues for Decision in the Expert Determination”.
5.11 If the parties refuse to sign the Terms of Engagement of the Expert and/or the Memorandum of Issues for Decision in the Expert Determination, the Expert shall terminate the Expert Determination, and Rule 6.2 shall apply in relation to the fees, expenses and costs of the Expert Determination.
5.12 Upon the appointment of the Expert by the President, the Expert will notify the parties of the amount of Security Deposit to be lodged with PAM for the estimated fees, expenses and costs for the Expert Determination within 10 calendar days. Upon payment of the Security Deposit, the Expert will then correspond with the parties directly and proceed with the Expert Determination independent of PAM.
6.0 Fees, Expenses and Costs of Expert Determination
6.1 Unless the parties agree otherwise, the fees, expenses and costs of the Expert Determination (including those of the Expert and the PAM appointment fees) paid initially as Security Deposit, will be borne by the Parties in equal shares. Each party shall bear their respective costs and expenses.
6.2 The Security Deposit for the fees, expenses and costs must be paid to PAM as a condition precedent for the Expert Determination to commence.
6.3 Thereafter, the Expert is entitled to require further deposits from the parties to cover the fees, expenses and costs of the Expert Determination if the parties choose to expand the scope for Expert Determination.
6.4 If the parties agree not to proceed with Expert Determination, or if the Expert Determination is discontinued or terminated, the Expert will refund a proportionate amount of the Security Deposit advanced, depending on the amount of work done by the Expert.
7.0 Procedural Rules and Requirements
7.1 Timetable: the timetable shall be variable at the discretion of the Expert.
7.1.1 Within ten days of the date on which the Expert accepts appointment, the Claimant shall provide the following to any other party and to the Expert: (a) a written document setting out the nature of the disagreement, the contractual and factual issues involved, his submissions in relation to those issues of his claim; and (b) all documents and other evidentiary material on which he relies (‘the claim’).
7.1.2 Within ten days after receipt of the claim, all parties shall provide any other party and the Expert with: (a) a written document indicating whether or not he agrees with the Claimant’s description of the disagreement and, if not, his statement of the nature of the technical issue/s (including any cross claim), the contractual and factual issues involved in the claim and any cross claim, his submissions in relation to those issues, and any cross claim and (b) all documents and other evidentiary material on which he relies (‘the response’).
7.1.3 Within five days after receipt of the response, any party may provide to the Expert and the other party: (a) a written document indicating whether he agrees with the response and, if not, why he disagrees; and (b) any documents or other evidentiary material in relation to the response and/or the cross claim (‘the reply’).
7.1.4 If a cross claim is made under rule
7.1.2 then the cross claimant may serve a reply to the written material served in response to such a cross claim under rule 7.1.3. Such reply shall be served within five days of receipt of the reply under rule 7.1.3.
7.2 Meetings/hearings
7.2.1 If he considers it necessary, the Expert may at any stage hold a meeting or teleconference/web conference with both of the parties, but not with one in the absence of the other, to clarify the issues in disagreement and make such orders as he considers necessary for the fair and expeditious determination of the matter.
7.2.2 All parties will be given at least five days notice (or such shorter period as the parties and the Expert agree) that such a meeting/teleconference/web conference is to be held.
7.2.3 At least three days (or such shorter period as the parties and the Expert agree) before such a meeting or teleconference/web conference the Expert must inform the parties in writing of any specific matters to be addressed at the meeting.
7.2.4 The Expert may also hold a substantive hearing if he considers it necessary to determine the matter.
7.2.5 All parties will be given at least ten days notice that such a substantive hearing is to be held.
7.2.6 At least five days before such a substantive hearing the expert must inform the parties in writing of any specific matters to be addressed at the hearing.
7.3 Expert Evidence
7.3.1 Where exceptionally a party or both parties has considered it desirable to engage their own expert, the Expert may, if he considers it appropriate, direct that the party’s or parties’ expert(s) attend a meeting with him so as to narrow the issues in disagreement; or direct that the parties’ experts shall meet and discuss matters relevant to their expertise, and produce a joint statement of experts, setting out those matters on which they are agreed, and those matters on which they do not agree, with reasons for such disagreement. Where the Expert attends a meeting of parties’ experts, the Expert shall have total discretion over the procedure adopted and the recording of any decisions made at such a meeting.
7.4 Withholding information by reason of confidentiality
7.4.1 A party may invoke the confidentiality of information it wishes or is required to submit for Expert Determination. The party shall submit the information to the Expert stating the reasons for which it considers the information to be confidential. If the Expert determines that the information is to be classified as confidential, he shall decide under which conditions and to whom the confidential information should be disclosed.
7.5 Power to impose sanctions
7.5.1 Where a party has failed to provide the Expert with information which he has requested or where a party has failed to attend a meeting, the Expert may serve on the party a notice stating that unless the information is served within five days or the party attends a meeting on a set date he will proceed to determine the matter in the absence of the information/the meeting.
7.5.2 The Expert is entitled to draw adverse inferences, where appropriate, from the non- production of information or non-attendance at a meeting.
7.5.3 The Expert shall determine the dispute on the basis of information that is before him.
7.6 The Expert Determination
7.6.1 Subject to any mutual agreement otherwise by the parties, the Expert shall deliver his Expert Determination in writing within 14 days after the close of submissions from all parties, and in any case, after the parties have paid all deposits and payments required by the Expert for the Expert Determination. If any party has not paid the deposit and costs, the other party may do so on behalf of the defaulting party and claim such amounts as a debt from the other party, unless otherwise agreed in writing by all the parties.
7.6.2 The Expert may make separate Expert Determinations as to separate specific dispute/s referred to him for his determination if so mutually agreed by the parties.
7.6.3 The Expert may in writing, within 14 days after issue of his Expert Determination, correct his Expert Determination for any clerical mistake, error arising from accidental slip or omission, pure mathematical miscalculation of figures, or clerical mistake in description of an item or matter, and such correction will not be deemed to affect the finality of his Expert Determination as provided by these Rules.
7.6.4 Unless otherwise agreed by the parties and communicated to the Expert in writing at the time of his appointment, the Expert will not give reasons for his determination.
8.0 No Invalidation of Expert’s Appointment or Expert Determination
8.1 No appointment of an Expert or his Expert Determination under these Rules shall be invalidated merely because the prescriptive time limits set out herein (including the appointment by PAM of the Expert) have not been strictly complied with.
9.0 Powers of Expert
9.1 The Expert shall have the power to issue directions for the procedures for the Expert Determination (including, without limitation, calling for meetings or hearings, dates and formats of submissions, documents or witnesses required; the necessity or otherwise of site visits and procedures for such site visits; and expected dates of the conclusion of the Expert Determination).
9.2 Notwithstanding the generality of Rule 9.1, the Expert will conduct the Expert Determination in accordance with the procedural directions agreed with the parties. If the parties do not agree to the procedures to be used for the Expert Determination or any part thereof, then the directions of the Expert as to the procedures to be adopted shall prevail and the parties are to be bound thereby.
9.3 The Expert shall have the power to act inquisitorial in determining the issues in disagreement and full discretion to exercise the following powers for an expeditious and efficient Expert Determination: (a) To inform himself independently as to facts on technical matters to which the matter relates; (b) To receive written submissions, sworn and unworn written statements and photocopied documents and to act upon the same; (c) To consult with such other professionally qualified person or other specialists; and; (d) To take such measures as he thinks fit to expedite the completion of the dispute resolution.
9.4 The parties will not be liable to pay fees of any professional qualified persons or specialists consulted by the Expert unless the Expert obtains the prior consent of the parties for consultation with such specific and identified third parties for consultation with such specific and identified third party and for incurring such fees, which shall (unless otherwise agreed) be borne in equal shares by the parties.
10.0 Duration and Termination of Expert Determination
10 .1 The parties agree that the Expert Determination terminates only upon the following events: (a) Upon issue of the Expert Determination by the Expert and any decisions to clarify or correct typographical or mathematical errors in his Expert Determination; (b) At any time before the issue of the Expert Determination, if the parties have reached agreement on the matter in dispute and/or mutually agree to terminate the procedure for Expert Determination.
11.0 Consent Decision
11.1 If the parties agree to settle the matter or any part thereof, they may request the Expert to record the settlement in a “Consent Decision”.
12.0 Suspension of Expert Determination
12.1 At any time before the issue of the Expert Determination, the parties may mutually agree to suspend the Expert Determination in order to resolve the specific disagreement or any part thereof by any other means of dispute resolution.
12.2 If the matter or any part thereof is settled or resolved, then the parties are to inform the Expert.
12.3 If the matter is not settled or resolved, then either party may inform the Expert and the Expert Determination is to resume in accordance with the Expert’s directions.
13.0 Subsequent and Other Proceedings
13.1 The parties agree that: (a) The Expert and PAM (or any employee, officer or representative of PAM) will not be called upon to give evidence or produce documents in any subsequent arbitration or other proceedings arising out of or in connection with the matter, by subpoena or otherwise. (b) The Expert Determination, the Expert’s working papers relating to the Expert Determination will not be the subject of a subpoena to give evidence or produce documents in any subsequent arbitration or other proceedings arising out of or in connection with the matter. (c) They will not call the Expert as a witness in any arbitration or any other tribunal, as a consultant, advocate, advisor or expert in any arbitration or other proceedings in relation to the matter. (d) The Expert shall not, without the prior written consent of the parties, accept an appointment as arbitrator or any other tribunal, or act as a consultant, advocate, advisor or Expert for any party, in any subsequent arbitration or other proceedings arising out of or in connection with the matter referred to him for Expert Determination.
1.1 Where the parties have agreed to refer any contention or disagreement (matter) to Expert Determination under these Rules, such matter will be fully and finally resolved by Expert Determination of a Sole Expert (Expert) appointed in accordance with the Rules set out herein.
1.2 Reference of a matter to Expert Determination shall not be a condition precedent for its reference to arbitration, adjudication and or other form of mechanism of dispute resolution Parties’ rights to refer the matter to arbitration, adjudication and/or any other form of dispute resolution shall not be affected by these Rules. Parties are, however, bound by the Expert Determination of the Expert as provided for in Rule 2.5 below.
2.0 The Expert
2.1 Consultation: unless otherwise determined by the Expert and agreed with the parties, no one party or anyone acting on one party’s behalf shall communicate with the Expert in the absence of the other party. The Expert must not consult with a party other than in the presence of the other party except where a party, having received a notice under Rule 7.1.2, has failed to make a written submission or appear at meeting.
2.2 Disclosure: except as provided in Rule 7.4, the Expert must disclose all information and documents received from any party to all other parties.
2.3 Discretion: at the request in writing of either party, and either with the agreement of all other parties or of his own motion, the Expert shall have discretion (a) to amend the time limits set out in these Rules and/or (b) to amend any of the procedural rules in Rule 7.0. The Expert’s decision as to his exercise of this discretion shall be final.
2.4 Evidence: the Expert is not bound by the rules of evidence and may at his discretion receive and take into consideration any information submitted to him by either party in such manner as he thinks fit and may give such weight to the same as he considers appropriate.
2.5 Final and binding: in submitting any matter for Expert Determination in writing, the parties agree that the Expert Determination of the Expert in relation to the matter submitted to him shall be final and binding on the parties and enforceable by the parties and that they will comply with and implement and give full effect to the Expert Determination.
2.6 Function: the Expert shall act as an Expert and shall determine the matter before him. The Expert shall not act as an arbitrator or adjudicator, nor as an expert witness. The parties agree that the Expert Determination process is not an arbitration or adjudication within the meaning of any statute.
2.7 Incapacity, resignation or death: if the Expert is unable to reach a determination in accordance with a timetable acceptable to the parties or otherwise set out in Rule 7.0 due to incapacity or termination by mutual agreement of the parties, the Expert shall withdraw from the determination, retain any interim payments that have been made in the course of the procedure, forego the rest of his fee and arrange for the documents to be returned to the parties. The President (President or Deputy President of the Pertubuhan Akitek Malaysia [PAM]) will then appoint another Expert, if the parties wish. If the Expert is incapacitated to reach a determination he shall resign from the determination, forego his fee and repay any interim payments already made in the course of the procedure and arrange for the documents to be returned to the parties. The President will then appoint another Expert, if the parties wish. If the Expert dies during the course of the determination, the president will appoint another Expert if the parties wish. The substitute Expert is to complete the Expert Determination in accordance with Rule 7.0.
2.8 Indemnity: the Expert shall not voluntarily (a) provide oral evidence or (b) divulge, produce or disseminate or provide details (in whole or in part) of any documents or information arising from the Expert Determination to any person or body other than the parties. The Expert will only be released from the requirements of this sub-rule where he is under a legal obligation to provide oral evidence or other details, including where he has been ordered to do so by a court of competent jurisdiction.
2.9 Liability: the Expert shall not be liable for any act or omission arising from the Expert Determination under these Rules unless such act or omission is shown to have been fraudulent or deceitful. PAM and any officer, or employee or agent or authorized representative of PAM shall not be liable for any such act or omission of the expert.
2.10 Matter: ‘technical issues’ which are the subject of contention or disagreement.
2.11 Neutrality: the Expert must act with impartiality, with no vested interest in the outcome of the matter and must not be biased in any way towards or against either party. If the Expert becomes aware of any circumstance which might reasonably be considered to affect his ability to act impartially, he must inform the parties and the President immediately. The parties must then inform the Expert and the President within ten days whether or not they agree to continue the determination with the Expert. If either party considers that the Expert should withdraw, the President will decide whether the Expert is to withdraw. The President’s decision will be binding. The President shall appoint a substitute Expert if he decides that the Expert should withdraw.
2.12 Role: the Expert will adopt the rules set out in these Rules.
3.0 Scope of Expert Determination
3.1 Expert Determination under these Rules is initiated by any party issuing a request for Expert Determination to the other party, specifying and summarizing the nature of the technical disagreement and requesting for submission of the matter to an independent Expert under the PAM Expert Determination Rules, ‘Request for Expert Determination’.
3.2 Disagreements between the parties, which are appropriate for reference to and resolution by Expert Determination under these Rules are matters which relate to the technical issues in relation to the works under the Contract, as opposed to matters which involve legal issues and interpretation of the PAM Conditions of Contract . As an illustration (but without limitation), technical matters relate to issues such as defects and making good of defects, technical specifications and drawings, and compliance or non-compliance thereof.
3.3 Notwithstanding Rule 3.1, where the parties agree to refer any disagreement to Expert Determination under these Rules, the Expert Determination of the Expert may not be challenged on the ground that the Expert Determination of the matter/s involves interpretation by the Expert of any provisions, terms, specifications and documents under or in relation to the contract between them in order to decide on the matter/s referred to him for determination.
3.4 Where any matter/s are referred to Expert Determination under the PAM Expert Determination Rules by the parties to the Main Contract (i.e. between the Employer and the Contractor) as well as the parties to the Sub-Contract under the Main Contract (i.e. between the Contractor and Sub-Contractor) and both the matters under the Main Contract and the Sub-Contract relate to the same technical issues or same technical disputes, then all the parties shall endeavor to appoint the same Expert under these Rules.
4.0 Terms of Reference
4.1 Application of PAM Expert Determination Rules: for the avoidance of doubt, the following provisions and all other provisions and procedures in these Rules apply to the Expert Determination irrespective of whether the Expert is appointed by the parties or by the President.
4.2 Confidentiality: the parties, the Expert and PAM will keep the Expert Determination process private and confidential among themselves, except to the extent that it is necessary in order to implement the Expert Determination or is required by law.
4.3 Costs: unless otherwise agreed between the parties, each party shall pay its own costs of or incidental to the procedure. Unless otherwise agreed in writing between the parties, the parties shall be jointly and severally liable for the costs of the procedure, and shall pay these costs in equal shares.
4.4 Documents: The parties shall ensure that copies of all documents sent or given to the Expert by any party are the same and at the same time sent or given to the other party (unless otherwise agreed).
4.5 Language: the determination shall be conducted in English and the parties will provide to the Expert, at their own expense, translations into English of any documents and communications in another language, if requested by the Expert.
4.6 Law: Malaysian law applies to the Expert Determination under these Rules.
5.0 Appointment of Expert
5.1 If the parties have agreed to resolve any matter by Expert Determination under these Rules, the Expert is to be appointed by the following procedure.
5.2 Within 14 days after the Request for Expert Determination, the other party is to respond as to whether the other party agrees or does not agree to submit the technical issue/s or any of the matters to Expert Determination (“Response to the Request for Expert Determination”). If the other party agrees to submit the specified technical issue/s to Expert Determination in his Response, then the Expert Determination is to proceed in accordance with the PAM Expert Determination Rules.
5.3 Within 14 days after the issuance of the Response to Request for Expert Determination, the parties are to agree to the identity of the Expert and inform The PAM Secretariat in writing accordingly.
5.4 In their communications with any nominated Expert inviting him to conduct the Expert Determination, the parties are to submit brief outlines of the nature of the disagreement of the matter containing only enough information on the technical issues (including the specific work or equipment or material on which there is a disagreement, the parties respective potions and technical disagreement in relation to the matter) by completing the ‘Memorandum of Issues for decision in the Expert Determination’ to enable the nominated Expert to identify any possible conflicts of interest and to decide whether to accept the appointment.
5.5 If the parties do not within the said 14 days (or any extended period agreed by the parties) agree to the identity and appointment of the Expert, either party may submit a request in writing to the President to appoint the Expert with the completed ‘Memorandum of Issues for Expert Determination’, attaching copies of their respective requests and responses for submission of the technical issue/s to Expert Determination, providing a brief summary or their respective summaries of the nature of the technical issues and the names of the Experts already nominated but not agreed by the parties.
5.6 The President will appoint the Expert having regard to any firms or individuals whom the President is asked not to appoint, and having had regard to any conflicts of interest which may be reported to the President by the Expert whom the President intends to appoint.
5.7 Within 28 days of receiving such “Memorandum of Issues for Expert Determination”, and upon receipt of the requisite non-refundable appointment fee currently in force, the President will appoint the Expert after obtaining the consent of the Expert to be appointed and a declaration of his impartiality and independence.
5.8 Upon appointment of the Expert, PAM will notify the parties of the as appointed Expert. The Expert will then issue to the parties his ‘Terms of Engagement of the Expert’ as to the Expert’s fees, expenses and costs based on the “Memorandum of Issues for Decision in the Expert Determination” for the parties agreement.
5.9 Notwithstanding the above, if the President considers that the Appointment Request relates to a matter which is not appropriate for Expert Determination but by other dispute resolution mechanisms available to the parties, then PAM may decline to appoint an Expert.
5.10 At the commencement of the Expert Determination the following shall be completed and signed accordingly: 4 (a) “Terms of Engagement of the Expert” ( sample form issued by PAM refers and jointly agreed by the parties and the Expert). (b) “Memorandum of Issues for Decision in the Expert Determination” (sample form issued by the PAM jointly agreed by the parties) setting out a list of specific issues on which the Expert is to make his decision. This list and the Expert’s decisions thereon are binding on the parties until the conclusion of the Expert Determination (subject to any changes mutually agreed by both parties prior to his Expert Determination), and the parties waive any right to object to his jurisdiction to decide those disagreements and issues listed in the “Memorandum of Issues for Decision in the Expert Determination”.
5.11 If the parties refuse to sign the Terms of Engagement of the Expert and/or the Memorandum of Issues for Decision in the Expert Determination, the Expert shall terminate the Expert Determination, and Rule 6.2 shall apply in relation to the fees, expenses and costs of the Expert Determination.
5.12 Upon the appointment of the Expert by the President, the Expert will notify the parties of the amount of Security Deposit to be lodged with PAM for the estimated fees, expenses and costs for the Expert Determination within 10 calendar days. Upon payment of the Security Deposit, the Expert will then correspond with the parties directly and proceed with the Expert Determination independent of PAM.
6.0 Fees, Expenses and Costs of Expert Determination
6.1 Unless the parties agree otherwise, the fees, expenses and costs of the Expert Determination (including those of the Expert and the PAM appointment fees) paid initially as Security Deposit, will be borne by the Parties in equal shares. Each party shall bear their respective costs and expenses.
6.2 The Security Deposit for the fees, expenses and costs must be paid to PAM as a condition precedent for the Expert Determination to commence.
6.3 Thereafter, the Expert is entitled to require further deposits from the parties to cover the fees, expenses and costs of the Expert Determination if the parties choose to expand the scope for Expert Determination.
6.4 If the parties agree not to proceed with Expert Determination, or if the Expert Determination is discontinued or terminated, the Expert will refund a proportionate amount of the Security Deposit advanced, depending on the amount of work done by the Expert.
7.0 Procedural Rules and Requirements
7.1 Timetable: the timetable shall be variable at the discretion of the Expert.
7.1.1 Within ten days of the date on which the Expert accepts appointment, the Claimant shall provide the following to any other party and to the Expert: (a) a written document setting out the nature of the disagreement, the contractual and factual issues involved, his submissions in relation to those issues of his claim; and (b) all documents and other evidentiary material on which he relies (‘the claim’).
7.1.2 Within ten days after receipt of the claim, all parties shall provide any other party and the Expert with: (a) a written document indicating whether or not he agrees with the Claimant’s description of the disagreement and, if not, his statement of the nature of the technical issue/s (including any cross claim), the contractual and factual issues involved in the claim and any cross claim, his submissions in relation to those issues, and any cross claim and (b) all documents and other evidentiary material on which he relies (‘the response’).
7.1.3 Within five days after receipt of the response, any party may provide to the Expert and the other party: (a) a written document indicating whether he agrees with the response and, if not, why he disagrees; and (b) any documents or other evidentiary material in relation to the response and/or the cross claim (‘the reply’).
7.1.4 If a cross claim is made under rule
7.1.2 then the cross claimant may serve a reply to the written material served in response to such a cross claim under rule 7.1.3. Such reply shall be served within five days of receipt of the reply under rule 7.1.3.
7.2 Meetings/hearings
7.2.1 If he considers it necessary, the Expert may at any stage hold a meeting or teleconference/web conference with both of the parties, but not with one in the absence of the other, to clarify the issues in disagreement and make such orders as he considers necessary for the fair and expeditious determination of the matter.
7.2.2 All parties will be given at least five days notice (or such shorter period as the parties and the Expert agree) that such a meeting/teleconference/web conference is to be held.
7.2.3 At least three days (or such shorter period as the parties and the Expert agree) before such a meeting or teleconference/web conference the Expert must inform the parties in writing of any specific matters to be addressed at the meeting.
7.2.4 The Expert may also hold a substantive hearing if he considers it necessary to determine the matter.
7.2.5 All parties will be given at least ten days notice that such a substantive hearing is to be held.
7.2.6 At least five days before such a substantive hearing the expert must inform the parties in writing of any specific matters to be addressed at the hearing.
7.3 Expert Evidence
7.3.1 Where exceptionally a party or both parties has considered it desirable to engage their own expert, the Expert may, if he considers it appropriate, direct that the party’s or parties’ expert(s) attend a meeting with him so as to narrow the issues in disagreement; or direct that the parties’ experts shall meet and discuss matters relevant to their expertise, and produce a joint statement of experts, setting out those matters on which they are agreed, and those matters on which they do not agree, with reasons for such disagreement. Where the Expert attends a meeting of parties’ experts, the Expert shall have total discretion over the procedure adopted and the recording of any decisions made at such a meeting.
7.4 Withholding information by reason of confidentiality
7.4.1 A party may invoke the confidentiality of information it wishes or is required to submit for Expert Determination. The party shall submit the information to the Expert stating the reasons for which it considers the information to be confidential. If the Expert determines that the information is to be classified as confidential, he shall decide under which conditions and to whom the confidential information should be disclosed.
7.5 Power to impose sanctions
7.5.1 Where a party has failed to provide the Expert with information which he has requested or where a party has failed to attend a meeting, the Expert may serve on the party a notice stating that unless the information is served within five days or the party attends a meeting on a set date he will proceed to determine the matter in the absence of the information/the meeting.
7.5.2 The Expert is entitled to draw adverse inferences, where appropriate, from the non- production of information or non-attendance at a meeting.
7.5.3 The Expert shall determine the dispute on the basis of information that is before him.
7.6 The Expert Determination
7.6.1 Subject to any mutual agreement otherwise by the parties, the Expert shall deliver his Expert Determination in writing within 14 days after the close of submissions from all parties, and in any case, after the parties have paid all deposits and payments required by the Expert for the Expert Determination. If any party has not paid the deposit and costs, the other party may do so on behalf of the defaulting party and claim such amounts as a debt from the other party, unless otherwise agreed in writing by all the parties.
7.6.2 The Expert may make separate Expert Determinations as to separate specific dispute/s referred to him for his determination if so mutually agreed by the parties.
7.6.3 The Expert may in writing, within 14 days after issue of his Expert Determination, correct his Expert Determination for any clerical mistake, error arising from accidental slip or omission, pure mathematical miscalculation of figures, or clerical mistake in description of an item or matter, and such correction will not be deemed to affect the finality of his Expert Determination as provided by these Rules.
7.6.4 Unless otherwise agreed by the parties and communicated to the Expert in writing at the time of his appointment, the Expert will not give reasons for his determination.
8.0 No Invalidation of Expert’s Appointment or Expert Determination
8.1 No appointment of an Expert or his Expert Determination under these Rules shall be invalidated merely because the prescriptive time limits set out herein (including the appointment by PAM of the Expert) have not been strictly complied with.
9.0 Powers of Expert
9.1 The Expert shall have the power to issue directions for the procedures for the Expert Determination (including, without limitation, calling for meetings or hearings, dates and formats of submissions, documents or witnesses required; the necessity or otherwise of site visits and procedures for such site visits; and expected dates of the conclusion of the Expert Determination).
9.2 Notwithstanding the generality of Rule 9.1, the Expert will conduct the Expert Determination in accordance with the procedural directions agreed with the parties. If the parties do not agree to the procedures to be used for the Expert Determination or any part thereof, then the directions of the Expert as to the procedures to be adopted shall prevail and the parties are to be bound thereby.
9.3 The Expert shall have the power to act inquisitorial in determining the issues in disagreement and full discretion to exercise the following powers for an expeditious and efficient Expert Determination: (a) To inform himself independently as to facts on technical matters to which the matter relates; (b) To receive written submissions, sworn and unworn written statements and photocopied documents and to act upon the same; (c) To consult with such other professionally qualified person or other specialists; and; (d) To take such measures as he thinks fit to expedite the completion of the dispute resolution.
9.4 The parties will not be liable to pay fees of any professional qualified persons or specialists consulted by the Expert unless the Expert obtains the prior consent of the parties for consultation with such specific and identified third parties for consultation with such specific and identified third party and for incurring such fees, which shall (unless otherwise agreed) be borne in equal shares by the parties.
10.0 Duration and Termination of Expert Determination
10 .1 The parties agree that the Expert Determination terminates only upon the following events: (a) Upon issue of the Expert Determination by the Expert and any decisions to clarify or correct typographical or mathematical errors in his Expert Determination; (b) At any time before the issue of the Expert Determination, if the parties have reached agreement on the matter in dispute and/or mutually agree to terminate the procedure for Expert Determination.
11.0 Consent Decision
11.1 If the parties agree to settle the matter or any part thereof, they may request the Expert to record the settlement in a “Consent Decision”.
12.0 Suspension of Expert Determination
12.1 At any time before the issue of the Expert Determination, the parties may mutually agree to suspend the Expert Determination in order to resolve the specific disagreement or any part thereof by any other means of dispute resolution.
12.2 If the matter or any part thereof is settled or resolved, then the parties are to inform the Expert.
12.3 If the matter is not settled or resolved, then either party may inform the Expert and the Expert Determination is to resume in accordance with the Expert’s directions.
13.0 Subsequent and Other Proceedings
13.1 The parties agree that: (a) The Expert and PAM (or any employee, officer or representative of PAM) will not be called upon to give evidence or produce documents in any subsequent arbitration or other proceedings arising out of or in connection with the matter, by subpoena or otherwise. (b) The Expert Determination, the Expert’s working papers relating to the Expert Determination will not be the subject of a subpoena to give evidence or produce documents in any subsequent arbitration or other proceedings arising out of or in connection with the matter. (c) They will not call the Expert as a witness in any arbitration or any other tribunal, as a consultant, advocate, advisor or expert in any arbitration or other proceedings in relation to the matter. (d) The Expert shall not, without the prior written consent of the parties, accept an appointment as arbitrator or any other tribunal, or act as a consultant, advocate, advisor or Expert for any party, in any subsequent arbitration or other proceedings arising out of or in connection with the matter referred to him for Expert Determination.
