SCHEDULE 16 ARBITRATION RULES
Article 61
Commencing an arbitration
1 The arbitration is deemed to have commenced when a party (“the claimant”) serves a written notice of arbitration on the other party (“the respondent”).
Time periods
2 (1) All time periods in these arbitration rules are measured in days and include weekends, but not bank or public holidays.
(2) Time periods are calculated from the day after the arbitrator is appointed which is either—
(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 President of the Institution of Civil Engineers.
Timetable
3 (1) The timetable for the arbitration is that which is set out in sub-paragraphs 3(2) to 3(4) below unless amended in accordance with paragraph 5(3).
(2) Within 14 days of the arbitrator being appointed, the claimant must provide both the respondent and the arbitrator with—
(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 or the remedy it is seeking; and
(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.
(3) Within 14 days of receipt of the claimant’s statements under sub-paragraph (2) by the arbitrator and respondent, the respondent must provide the claimant and the arbitrator with
(a) a written statement of defence consisting of a response 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 elements of the claimant’s claim and 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; and
(c) any objections it wishes to make to the claimant’s statements, comments on the claimant’s expert reports (if submitted by the claimant) and explanations of the objections.
(4) Within seven days of the respondent serving its statements under sub-paragraph 3(3), the claimant may make a statement of reply by providing both the respondent and the arbitrator with—
(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; and
(e) its written submissions in response to the legal and factual issues involved.
Procedure
4 (1) The parties’ pleadings, witness statements and expert reports (if any) must be concise. A single pleading must not exceed 30 single-sided A4 pages using 10pt Arial font.
(2) The arbitrator will make an award on the substantive differences 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.
(3) Either party may, within two days of delivery of the last submission, request a hearing giving specific reasons why it considers a hearing is required.
(4) Within seven days of receiving the last submission, the arbitrator must notify the parties whether a hearing is to be held and the length of that hearing.
(5) Within 10 days of the arbitrator advising the parties that a hearing is to be held, the date and venue for the hearing are to be fixed by agreement with the parties, save that if there is no agreement the arbitrator must direct a date and venue which the arbitrator considers is fair and reasonable in all the circumstances. The date for the hearing must not be less than 35 days from the date of the arbitrator’s direction confirming the date and venue of the hearing.
(6) A decision must 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 experts attending the hearing may be asked questions by the arbitrator.
(7) There is to be no examination or cross-examination of experts, but the arbitrator must invite the parties to ask questions of the experts by way of clarification of any answers given by the experts in response to the arbitrator’s questions. Prior to the hearing in relation to the experts—
(a) at least 28 days before a hearing, the arbitrator must provide a list of issues to be addressed by the experts;
(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 must be as directed by the arbitrator and must be provided at least seven days before the hearing.
(8) 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 must take these submissions into account in the award.
(9) 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 four months of the date on which the arbitrator is appointed, unless both parties otherwise agree to an extension to the date for the award.
(10) 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 the arbitrator attaching the appropriate weight to any evidence submitted beyond any timetable or in breach of any procedure or direction.
(11) The arbitrator’s award must include reasons. The parties must accept that the extent to which reasons are given must be proportionate to the issues in dispute and the time available to the arbitrator to deliver the award.
Arbitrator’s powers
5 (1) The arbitrator has all the powers of the Arbitration Act 1996, save where modified in this Schedule.
(2) There must be no discovery or disclosure, except that the arbitrator is to 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.
(3) 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 or procedure—
(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
(b) only for such a period that is necessary to achieve fairness between the parties.
(4) 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.
Costs
6 (1) The costs of the arbitration must 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.
(2) Where the difference involves connected or interrelated issues, the arbitrator must consider the relevant costs collectively.
(3) The final award must fix the costs of the arbitration and decide which of the parties are to bear them or in what proportion they are to be borne by the parties.
(4) The arbitrator must award recoverable costs on the general principle that each party should bear its own costs, having regard to all material circumstances, including such matters as exaggerated claims 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.
Confidentiality
7 (1) Hearings in this arbitration are to take place in private.
(2) Materials, documents, awards, expert reports and any matters relating to the arbitration are confidential and must not be disclosed to any third party without prior written consent of the other party, save for any application to the courts or where disclosure is required under any legislative or regulatory requirement.
Propose a changeSCHEDULE 17 PROCEDURE REGARDING CERTAIN APPROVALS, ETC.
Article 62
Interpretation
1 In this Schedule—
“appeal documentation” means a written statement of appeal which describes the nature of the differences between the parties, the factual issues, the undertaker’s case and evidence relied on;
“relevant authority” means, subject to article 62(5), any person, authority or body named in any of the provisions of this Order and whose consent, agreement or approval is sought; and
“consultee” means any body or authority named in a requirement or condition as a body to be consulted by the relevant authority in discharging that requirement or condition.
Applications made under provisions of this Order
2 (1) Where an application has been made to the relevant authority for any consent, agreement or approval required or contemplated by any of the provisions of this Order (except as provided in article 62(5)) the relevant authority must give notice to the undertaker of their decision on the application within—
(a) in respect of all provisions a period of 42 days beginning with the day immediately following that on which the application is received by the relevant authority;
(b) where further information is requested under paragraph 3 of this Schedule (further information and consultation), a period of 42 days beginning with the day immediately following that on which further information has been supplied by the undertaker; or
(c) such period that is longer than the periods in sub-paragraphs (a) or (b) as may be agreed in writing by the undertaker and the relevant authority before the end of such period.
(2) In determining any application made to the relevant authority for any consent, agreement or approval required or contemplated by any of the provisions of this Order (except as provided in article 62(5)), the relevant authority may—
(a) give or refuse its consent, agreement or approval; or
(b) give its consent, agreement or approval subject to reasonable conditions,
and where consent, agreement or approval is refused or granted subject to reasonable conditions the relevant authority must provide its reasons for that decision within the notice of the decision.
(3) Subject to sub-paragraph (4), in the event that the relevant authority does not determine an application within the period set out in sub-paragraph (1), the relevant authority is to be taken to have granted all parts of the application (without any condition or qualification) at the end of that period.
(4) Where an application has been made to the relevant authority for any consent, agreement or approval required by any of the provisions of this Order (except as provided in article 62(5)), and—
(a) the relevant authority does not determine the application within the period set out in sub-paragraph (1) and such application is accompanied by a report which states that the subject matter of such application is likely to give rise to any materially new or materially different environmental effects compared to those in the environmental statement or in any environmental information supplied under the 2017 Regulations; or
(b) the relevant authority determines during the period set out in sub-paragraph (1) that it considers that the subject matter of such application will give rise to any materially new or materially different environmental effects compared to those in the environmental statement or in any environmental information supplied under the 2017 Regulations,
then the application is to be taken to have been refused by the relevant authority at the end of that period.
(5) The undertaker must include in any application made to the relevant authority for any consent, agreement or approval required or contemplated by any of the provisions of this Order (except as provided in article 62(5)) a statement that the provisions of sub-paragraph (3) apply and, if the application fails to do so, it is to be null and void.
Further information and consultation
3 (1) In relation to any application submitted pursuant to a requirement in Schedule 2 (requirements) or condition in schedule 3 (deemed marine licence), the relevant authority may request such reasonable further information from the undertaker as is necessary to enable it to consider the application.
(2) In the event that the relevant authority considers further information to be necessary and the provision governing or requiring the application does not specify that consultation with a consultee is required the relevant authority must, within 10 business days of receipt of the application, notify the undertaker in writing specifying the further information required.
(3) If the provision governing or requiring the application specifies that consultation with a consultee is required, the relevant authority must issue the consultation to the consultee within five business days of receipt of the application, and must notify the undertaker in writing specifying any further information requested by the consultee within 20 business days of receipt of the application.
(4) In the event that the relevant authority does not give notification as specified in sub-paragraph (2) or (3) it is to be deemed to have sufficient information to consider the application and is not thereafter entitled to request further information without the prior agreement of the undertaker.
Appeals
4 (1) The undertaker may (except as provided in article 62(5)) appeal in the event that—
(a) the relevant authority refuses (including a deemed refusal pursuant to paragraph 2(4)) an application for any consent, agreement or approval required by an article, requirement or condition included in this Order or grants it subject to conditions;
(b) on receipt of a request for further information pursuant to paragraph 3 the undertaker considers that either the whole or part of the specified information requested by the relevant authority is not necessary for consideration of the application; or
(c) on receipt of any further information requested, the relevant authority notifies the undertaker that the information provided is inadequate and requests additional information which the undertaker considers is not necessary for consideration of the application.
(2) The appeal process is as follows—
(a) any appeal by the undertaker must be made within 42 days of the date of the notice of the decision or determination giving rise to the appeal referred to in sub-paragraph (1) ;
(b) the undertaker must submit the appeal documentation to the Secretary of State and must on the same day provide copies of the appeal documentation to the relevant authority and any consultee required to be consulted pursuant to the provision of this Order which is the subject of the appeal (together with the undertaker, these are the “appeal parties”);
(c) as soon as is practicable after receiving the appeal documentation, the Secretary of State must appoint a person to determine the appeal and must forthwith notify the appeal parties of the identity of the appointed person and the address to which all correspondence for his attention should be sent, the date of such notification being the “start date” for the purposes of this sub-paragraph (2);
(d) the relevant authority and any consultee required to be consulted pursuant to the provision of this Order which is the subject of the appeal must submit written representations to the appointed person in respect of the appeal within 20 business days of the start date and must ensure that copies of their written representations are sent to each other and to the undertaker on the day on which they are submitted to the appointed person;
(e) the undertaker must make any counter-submissions to the appointed person within 20 business days of receipt of written representations pursuant to sub-paragraph (d) above; and
(f) the appointed person must make his decision and notify it to the appeal parties, with reasons, as soon as reasonably practicable and in any event within 30 business days of the deadline for the receipt of counter-submissions pursuant to sub-paragraph (e).
(3) The appointment of the person pursuant to sub-paragraph (2)(c) may be undertaken by a person appointed by the Secretary of State for this purpose instead of by the Secretary of State.
(4) In the event that the appointed person considers that further information is necessary to enable him to consider the appeal he must, notify the appeal parties in writing specifying the further information required and the date by which the information is to be submitted and the appointed person must set the date for the receipt of such further information having regard to the timescales in sub-paragraph (2).
(5) Any further information required pursuant to sub-paragraph (4) must be provided by the appeal parties to the appointed person on the date specified by the appointed person (the “specified date”), and the appointed person must notify the appeal parties of the revised timetable for the appeal on or before that day. The revised timetable for the appeal must require submission of any written representations on the submitted further information to the appointed person within 10 business days of the specified date but otherwise is to be in accordance with the process and time limits set out in sub-paragraphs (2)(d) to (2)(f).
(6) On an appeal under this paragraph, the appointed person may—
(a) allow or dismiss the appeal; or
(b) reverse or vary any part of the decision or determination of the relevant authority (whether the appeal relates to that part of it or not),
and may deal with the application as if it had been made to him in the first instance.
(7) The appointed person may proceed to a decision on an appeal taking into account only such written representations as have been sent within the relevant time limits.
(8) The appointed person may proceed to a decision even though no written representations have been made within the relevant time limits, if it appears to him that there is sufficient material to enable a decision to be made on the merits of the case.
(9) The decision of the appointed person on an appeal is to be final and binding on the parties, and a court may entertain proceedings for questioning the decision only if the proceedings are brought by a claim for judicial review.
(10) If an approval is given by the appointed person pursuant to this Schedule, it is deemed to be an approval given by the relevant authority. The relevant authority may confirm any determination given by the appointed person in identical form in writing but a failure to give such confirmation (or a failure to give it in identical form) is not to be taken to affect or invalidate the effect of the appointed person’s determination.
(11) Save where a direction is given pursuant to sub-paragraph (12) requiring the costs of the appointed person to be paid by the relevant authority, the reasonable costs of the appointed person must be met by the undertaker.
(12) On application by the relevant authority or the undertaker, the appointed person may give directions as to the costs of the appeal parties and as to the parties by whom the costs of the appeal are to be paid. In considering whether to make any such direction and the terms on which it is to be made, the appointed person must have regard to Planning Practice Guidance: Appeals (March 2014) or any circular or guidance which may from time to time replace it.
Fees
5 (1) Where an application is made to the relevant planning authority for the discharge of a requirement in Schedule 2 (requirements), a fee is to apply and must be paid to the relevant planning authority in accordance with sub-paragraph (2).
(2) The fee payable for each application under sub-paragraph (1) is as follows—
(a) a fee of £2,535 for the first application for the discharge by the relevant planning authority of each of the requirements in paragraphs 4 (detailed approval), 5(1) (phasing), 6 (construction environmental management plan), 7 (construction traffic management plan), 8 (highway works), 10 (landscape and ecology management plan), 12 (surface water drainage), 15 (contaminated land), 16 (external lighting), 17 (control of noise during operational use), 18 (decommissioning environmental management plan), 19 (operational travel plan), and 20 (operational phase flood emergency response plans);
(b) a fee of £578 for each subsequent application for the discharge by the relevant planning authority of each of the requirements listed in paragraph (a) (whether that subsequent application is in respect of the same part of the authorised project or a different part of it); and
(c) a fee of £145 for any application for the agreement of the relevant planning authority pursuant to any “unless otherwise agreed” provision of any requirement in Schedule 2 (requirements).
(3) Any fee paid under this Schedule must be refunded by the relevant planning authority to the undertaker who paid it within four weeks of—
(a) the application being rejected as invalidly made; or
(b) the relevant planning authority failing to determine the application within the relevant period in paragraph 2(1) of this Schedule unless within that period the undertaker agrees, in writing, that the fee is to be retained by the relevant planning authority and credited in respect of a future application.
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