Sections 225 to 237: The PPP Arbiter
348.Sections 225 to 237 provide for the appointment of an arbiter by the Secretary of State, and set out the arbiter’s general duties and powers. A PPP agreement may provide for any matter to be referred to the arbiter for direction or guidance under sections 229 and 230. It is envisaged that the arbiter’s primary role will be to review the price to be paid to a PPP company for its obligations under a PPP agreement, if requested by the parties to do so at a periodic review of the agreement. Such periodic reviews will also enable TfL to carry out a thorough review of its priorities under the agreement.
349.Section 225 provides for the appointment of the arbiter by the Secretary of State. Section 226 makes provision concerning the terms of appointment and dismissal of the arbiter, whilst section 227 deals with the appointment of staff and their ability to discharge functions on behalf of the arbiter. Section 228 ensures that if, at any time, the posts of Rail Regulator and PPP arbiter are held by the same person, the staff employed by either body will have the legal powers to carry out the functions of both.
350.Section 229 sets out the arbiter’s powers to give directions on matters referred to him by a party to a PPP agreement. Section 230 gives the arbiter a power to give non-binding guidance to the parties, the aim being to encourage the parties to reach agreement between themselves, in the light of the arbiter’s guidance, without relying on a binding determination.
351.Section 231 sets out the arbiter’s duties when making determinations or giving guidance.
352.Section 232 sets out further powers of the arbiter, including a power to inspect relevant assets. Section 233 empowers the arbiter to request parties to a PPP agreement and their associates to provide information which the arbiter considers relevant to the discharge of his functions.Section 234 gives the arbiter the power to apply to the High Court for an order requiring provision of information, if a request is not complied with, and provides a criminal sanction in the event that someone deliberately alters or destroys documents requested by the arbiter. Section 235 provides statutory protection to third parties against disclosure of information collected by the arbiter, except where it is necessary to carry out the specific statutory functions referred to in the section. It is enforceable by means of a civil injunction.
353.Section 236 removes the liability of the arbiter and his staff for any acts or omissions, unless they can be shown to have been committed in bad faith.
354.Section 237 provides for the funding of the arbiter by the Secretary of State and the recovery of costs from the parties concerned.
