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New Clause 37
The PPP arbiter
'.--(1) The Secretary of State may appoint a person to an office to be known as "the Public-Private Partnership Agreement Arbiter" (in this Act referred to as the "PPP arbiter").
(2) The PPP arbiter shall have the functions conferred or imposed on him by or under this Act.
(3) The PPP arbiter shall be a corporation sole by the name of "the Public-Private Partnership Agreement Arbiter".
(4) If at any time no person holds the office of PPP arbiter, the Secretary of State shall appoint a person to that office if requested in writing to do so by a party to a PPP agreement.
(5) A request under subsection (4) above must not include a request for a particular person to be appointed.
(6) Before making an appointment under subsection (1) or (4) above, the Secretary of State shall consult such persons as he considers appropriate concerning--
(a) the person to be appointed; and
(b) the terms of the appointment.
(7) The office of PPP arbiter may not be held by--
(a) the Mayor;
(b) an Assembly member;
(c) the Authority or a member of staff of the Authority;
(d) Transport for London or a subsidiary of Transport for London; or
(e) a member of Transport for London or a director of a subsidiary of Transport for London.
(8) The offices of Rail Regulator and PPP arbiter may be held by the same person.'.--[Mr. Dowd.]
Brought up, read the First and Second time, and added to the Bill.
New Clause 38
Terms of appointment etc of the PPP arbiter
'.--(1) A person appointed to be the PPP arbiter shall be appointed for such term as may be specified or described in the instrument appointing him and shall hold and vacate office as the PPP arbiter in accordance with the terms of his appointment.
(2) There shall be paid to the PPP arbiter such remuneration, and such travelling and other allowances, as the Secretary of State may determine.
(3) There shall be paid such pension, allowance or gratuity to or in respect of the PPP arbiter, or such contributions or payments towards provision for such a pension, allowance or gratuity, as the Secretary of State may determine.
(4) A person may resign from office as the PPP arbiter at any time by giving notice to the Secretary of State.
(5) The Secretary of State may remove a person from office as the PPP arbiter--
(a) on the ground of incapacity or misbehaviour; or
(b) where the Secretary of State considers that there has been unreasonable delay in the discharge of the functions of the PPP arbiter.'.--[Mr. Dowd.]
Brought up, read the First and Second time, and added to the Bill.
Brought up, read the First and Second time, and added to the Bill.
Brought up, read the First and Second time, and added to the Bill.
'.--(1) The PPP arbiter may appoint such staff as he may determine, subject to any restrictions contained in the terms of his appointment.
(2) The staff of the PPP arbiter shall be appointed on such terms and conditions as he shall determine, subject to any restrictions contained in the terms of his appointment.
(3) Any function of the PPP arbiter may be exercised by any member of his staff authorised for the purpose by him or, if there is no person who holds the office of PPP arbiter, by the relevant authority, whether specially or generally.'.--[Mr. Dowd.]
'.--(1) A PPP agreement may provide for matters of any description specified in the agreement to be referred to the PPP arbiter.
(2) A party to a PPP agreement may refer to the PPP arbiter for direction any matter of a description specified in a provision of that agreement by virtue of subsection (1) above.
(3) Where a matter is referred under this section to the PPP arbiter for direction he--
(a) shall give a direction in relation to that matter, and
(b) may give a direction in relation to any other matter which he considers relevant to the matter referred.
(4) The directions that may be given under subsection (3) above include directions relating to the inclusion of new terms in, or the variation of existing terms of, the PPP agreement in question.
(5) The PPP arbiter shall give notice of any direction under subsection (3) above to the parties to the PPP agreement in question.
(6) A direction under subsection (3) above shall be final and binding--
(a) on the parties to the PPP agreement in question, and
(b) on any persons claiming through or under those parties,
and shall, if and to the extent that the notice given under subsection (5) above so provides, take effect as a term of the PPP agreement.
(7) Where a direction has been given under subsection (3) above, the parties to the PPP agreement in question may jointly agree that subsection (6) above is not to have effect in relation to that direction.'.--[Mr. Dowd.]
Brought up, read the First and Second time, and added to the Bill.
'.--(1) The parties to a PPP agreement may jointly agree to refer any matter relating to the agreement to the PPP arbiter for consideration.
(2) Where a matter is referred by virtue of subsection (1) above to the PPP arbiter for consideration he shall consider the matter and shall give to the parties who referred the matter such guidance as he considers appropriate.
(3) The guidance which may be given by the PPP arbiter by virtue of subsection (2) above includes guidance about any matter which he considers relevant to the PPP agreement in question.
(4) Where the PPP arbiter has given any guidance under this section in relation to a matter which is subsequently referred to him for direction under subsection (3) of section (Directions of the PPP arbiter) above, the direction which may be given by the PPP arbiter under that subsection is not restricted by that guidance.'.--[Mr. Dowd.]
Brought up, read the First and Second time, and added to the Bill.
'.--(1) In giving in relation to a PPP agreement--
(a) any direction under section (Directions of the PPP arbiter)(3) above, or
(b) any guidance under section (Guidance by the PPP arbiter)(2) above,
the PPP arbiter shall act in the way he considers best calculated to achieve the objectives specified in subsections (2) to (5) below.
(2) The objective specified in this subsection is to ensure the performance of the PPP agreement in question so as to secure that the railway infrastructure to which the agreement relates--
(a) is provided, constructed, renewed or improved, as the case may be, and
(b) is maintained,
having regard to the resources available to any relevant body which is a party to the agreement.
(3) The objective specified in this subsection is to promote efficiency and economy--
(a) in the provision, construction, renewal, or improvement, as the case may be, and
(b) in the maintenance,
of the railway infrastructure to which the PPP agreement in question relates.
(4) The objective specified in this subsection is to enable any PPP company which is a party to the PPP agreement in question, and which the PPP arbiter considers to be efficient and economic in performing the agreement, to earn the rate of return incorporated in the agreement.
(5) The objective specified in this subsection is to enable any PPP company which is a party to the PPP agreement in question to plan the future performance of the agreement with reasonable certainty.
(6) In giving any such direction or guidance as is mentioned in subsection (1) above the PPP arbiter is to take account of any factors which--
(a) are notified to him by the parties to the PPP agreement in question, acting jointly, as factors to which he must have regard when giving the direction or guidance in question, or
(b) are factors specified or described in the PPP agreement in question as factors to which the PPP arbiter must have regard in giving any direction under section (Directions of the PPP arbiter)(3) above or any guidance under section (Guidance by the PPP arbiter)(2) above.
(7) For the purposes of subsection (4) above, a rate of return is "incorporated in a PPP agreement" if, and only if, the agreement--
(a) makes provision for the rate of return to be earned under the agreement by the PPP company concerned, and
(b) states that subsection (4) above is to have effect in relation to that provision.
(8) In this section "railway infrastructure" means the railway or proposed railway in question and includes a reference to any stations, rolling stock or depots used or to be used in connection with that railway.'.--[Mr. Dowd.]
Brought up, read the First and Second time, and added to the Bill.
'.--(1) For the purposes of the proper discharge of the functions conferred or imposed on him by or under this Act, the PPP arbiter may--
(a) carry out inspections of such of the railway infrastructure or equipment belonging to, or under the control of, any party to a PPP agreement as he considers appropriate;
(b) consult such bodies or persons as he considers appropriate in relation to any direction or guidance given or proposed to be given by him;
(c) do all such things as he considers appropriate for or in connection with the giving of a direction under section (Directions of the PPP arbiter)(3) above or guidance under section (Guidance by the PPP arbiter)(2) above; and
(d) do such other things as he considers necessary or expedient.
(2) The powers conferred on the PPP arbiter by this section and section (Provision of information to the PPP arbiter) below are exercisable for purposes preparatory or ancillary to the giving of directions or guidance under this Chapter generally and notwithstanding that there is no matter in relation to which a direction under section (Directions of the PPP arbiter)(3) above, or guidance under section (Guidance by the PPP arbiter)(2) above, is required.
(3) In this section "railway infrastructure" has the same meaning as in section (Duty of PPP arbiter) above.'.--[Mr. Dowd.]
Brought up, read the First and Second time, and added to the Bill.
'.--(1) Any person falling within subsection (2) below shall, at the request of the PPP arbiter, provide him with such information as the PPP arbiter considers relevant to the proper discharge of the functions conferred or imposed on him by or under this Act and as may be specified or described in the request.
(2) The persons who fall within this subsection are--
(a) any party to a PPP agreement;
(b) any associate of a party to a PPP agreement; and
(c) any party to a related third party agreement within the meaning of section j0nc44 above.
(3) The information shall be provided in such form and manner, and within such time, as may be specified in the request.
(4) A person is not obliged by virtue of this section to provide any information which he would be entitled to refuse to provide in or for the purposes of proceedings in a court in England and Wales.
(5) For the purposes of subsection (2)(b) above, "associate", in relation to a party to a PPP agreement, means--
(a) a parent undertaking of that party;
(b) a subsidiary undertaking of any parent undertaking of that party;
(c) a subsidiary undertaking of that party; or
(d) an undertaking in which that party, or any undertaking falling within paragraphs (a) to (c) above, has a participating interest.
(6) For the purposes of subsection (5) above--
"parent undertaking" and "subsidiary undertaking" shall be construed in accordance with section 258 of the Companies Act 1985;
"undertaking" has the meaning given by section 259 of that Act; and
"participating interest" has the meaning given by section 260 of that Act.'.--[Mr. Dowd.]
Brought up, read the First and Second time, and added to the Bill.
'.--(1) The PPP arbiter is not liable for anything done or omitted in the discharge or purported discharge of his functions as the PPP arbiter unless the act or omission is shown to have been in bad faith.
(2) Subsection (1) above applies to a member of the staff of, or an agent of, the PPP arbiter as it applies to the PPP arbiter.'.--[Mr. Dowd.]
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