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C. Payments of Overspill Claims
i. The funds required to pay any Overspill Claim incurred by the Association shall be provided:
(i) from such sums as the Association is able to recover from any special insurance which may, in the discretion of the Association, have been effected to protect the Association against the risk of payments of Overspill Claims, and
(ii) from such sums as the Association is able to recover from the other parties to the Pooling Agreement as their contributions to the Overspill Claim, and
(iii) from such proportion of any sums standing to the credit of the Catastrophe Reserve as the Directors in their discretion decide, and
(iv) by levying one or more Overspill Calls in accordance with paragraph [E] of this Section, irrespective of whether the Association has sought to recover or has recovered all or any of the sums referred to in sub-paragraph [i] above but provided the Association shall first have made a determination in accordance with sub-paragraph [iii] above, and
(v) from any interest accruing to the Association on any funds provided as aforesaid.
ii. The funds required to pay such proportion of any Overspill Claim incurred by any other party to the Pooling Agreement which the Association is liable to contribute under the terms of the Pooling Agreement shall be provided in the manner specified in paragraphs C [i] [(i)] and [(iii)]-[(v)] of this Section.
iii. To the extent that the Association intends to provide funds required to pay any Overspill Claim incurred by it in the manner specified in sub-paragraph [i] [(iv)] above, the Association shall only be required to pay such Overspill Claim as and when such funds are received by it, provided that it can show from time to time that, in seeking to collect such funds, it has taken the steps referred to in paragraph [B] [iii] of this Section.
D. Overspill Claims- expert determinations
i. Any issue, arising from the application to an Overspill Claim (the “relevant Overspill Claim”) of paragraphs [B] [ii] or [iii] or paragraph [C] [iii] of this Section, of whether
(i) costs have been properly incurred in collecting or seeking to collect funds to pay Overspill Claims, or
(ii) any Overspill Call or part thereof is economically recoverable, or
(iii) in seeking to collect the funds referred to in paragraph [C] [iii] of this Section the Association has taken the steps referred to in that paragraph, On which the Association and the Member cannot agree shall, notwithstanding Rule 29, be referred to a panel (the “Panel”) constituted in accordance with arrangements established in the Pooling Agreement which, acting as a body of experts and not as an arbitration tribunal, shall determine the issue.
ii. If the Panel has not been constituted at a time when the 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.
iii. 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.
iv. The Panel shall in its discretion decide what information, documents, evidence and submission it requires in order to determine an issue and how to obtain these, and the Association and the Member shall co-operate fully with the Panel.
v. In determining any issue referred to it under this paragraph [D], 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.
vi. In determining an issue, the members of the Panel
(i) shall rely on their own knowledge and expertise, and
(ii) may rely on any information, documents, evidence or submission provided to it by the Association or the Member as the Panel sees fit.
vii. If the three members of the Panel cannot agree on any matter, the view of the majority shall prevail.
viii. The Panel shall not be required to give reasons for any determination.
ix. The Panel’s determination shall be final and binding upon the Association and the Member (subject only to sub-paragraph [x] below) and there shall be no right of appeal from such determination.
x. If the Panel makes a determination on an issue referred to in paragraphs [D] [i] [(ii)] or [D] [i] [(iii)] of this Section, the Association or the Member may refer the issue back to the Panel, notwithstanding sub-paragraph [ix] above, if it considers that the position has materially changed since the Panel made its determination.
xi. The costs of the Panel shall be paid by the Association.
xii. 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 paragraph [D] of this Section 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 paragraph [B] [ii] [(i)] of this Section.
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