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P&I (CLASS 3) / PART VIII / RULE 44
71DISPUTES AND DIFFERENCES
44.1 Adjudication by the Board
If any difference or dispute between the Association or the Managers and any other person shall arise out of or in connection with these Rules or any contract of insurance between the Association and a Member such difference or dispute shall in the first instance be referred to and adjudicated by the Board notwithstanding that the Board may have already considered the matter before any such difference or dispute arose. Such reference and adjudication shall be on written submissions only.
44.2 Arbitration
If such other person does not accept the decision of the Board, or if the Board shall fail to make any award within three months of the reference to it, the difference or dispute shall then be referred to arbitration in London.
44.2.1 The arbitration shall be conducted by two arbitrators, one to be appointed by each of the parties, and in case the arbitrators shall not agree then the difference or dispute shall be referred to the decision of an umpire to be appointed by them.
44.2.2 No Member of the Association nor the Managers nor any employee of the Managers shall act as arbitrator or umpire.
44.2.3 The evidence and proceedings upon any arbitration may in the discretion of the arbitrators or umpire be taken in a mercantile way without regard to legal technicalities respecting evidence.
44.2.4 The arbitrators or umpire may, in case any point of law shall arise, take the opinion of such counsel or solicitor as they may think fit, and may act upon any such opinion, and unless the arbitrators or umpire taking such an opinion otherwise direct, the costs of and incidental thereto shall be deemed to be part of the costs of the award.
44.2.5 The costs of and incidental to any such reference and award shall be in the discretion of the arbitrators or umpire respectively.
44.2.6 The submission to arbitration and all the proceedings therein shall be subject to the provisions of the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
44.3 Sole Remedy
No such other person shall be entitled to maintain any action, suit or other legal proceedings against the Association otherwise than in accordance with the procedures laid down in this Rule 44 and may only commence proceedings, other than the arbitration under Rule 44.2 Arbitration above, so as to enforce an award under such arbitration and then only for such sum, if any, as the award may direct to be paid by the Association. The sole obligation of the Association to such other person under these Rules, and any Certificate of Entry, in respect of such difference or dispute shall be to pay such sum as may be directed by such an award.
44.4 Overspill Claims
44.4.1 Any of the issues referred to in Rule 5.7.5 Recoverability of Overspill Calls shall be referred to a panel (the Panel), which shall act as a body of experts and not as an arbitration tribunal and be constituted in accordance with arrangements established in the Pooling Agreement.
44.4.2 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.
44.4.3 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.
44.4.4 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.
44.4.5 In determining any issue referred to it under Rule 5.7.5 Recoverability of Overspill Calls 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.
44.4.6 In determining an issue the members of the Panel shall rely on their own knowledge and expertise and may rely on any information, documents, evidence or submission provided to it by the Association or the Member as the Panel sees fit.
44.4.7 If the three members of the Panel cannot agree on any matter, the view of the majority shall prevail.
44.4.8 The Panel shall not be required to give reasons for any determination.
44.4.9 The Panel’s determination shall be final and binding upon the Association and the Member (subject only to Rule 44.4.10 below) and there shall be no right of appeal from such determination.
44.4.10 If the Panel makes a determination on an issue, the Association or the Member may refer the issue back to the Panel, notwithstanding Rule 44.4.9 above, if it considers that the position has materially changed since the Panel made its determination.
44.4.11 The costs of the Panel shall be paid by the Association.
44.4.12 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 44.4 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 5.7.2.1.