In the event that an access seeker and provider cannot agree on the terms and conditions of access to a declared service, either party may request the ACCC to arbitrate a dispute by making a final binding determination.
In arbitrating access disputes, the ACCC must reach its determination through the application of specific statutory criteria.
An access dispute is deemed to exist for the purposes of Part IIIA where a third party is ‘unable to agree’ with the provider on one or more aspects of access to the declared service.
To engage in arbitration, an access seeker and/or an access provider must notify the ACCC in writing of an access dispute.
The legislation states that, except where otherwise agreed by the parties to a dispute, arbitration hearings are to be conducted in private. Therefore, the ACCC generally does not make any public comment on disputes during the course of arbitration except to announce when a dispute has been notified. The ACCC is required to publish a written report about a final arbitration determination regarding a dispute.
The time taken by the ACCC to arbitrate a dispute and issue its final determination will depend on the nature of the dispute, the complexity of the issue under consideration as well as the conduct of parties in providing necessary information to the ACCC and to each other in a timely manner throughout the process. The ACCC is required to use its best endeavours to make a decision within six months of being notified of the access dispute, provided it has been given sufficient information at each stage of the arbitration process and depending on the time required for submissions.
ACCC guidelines
The ACCC released two procedural guides on the resolution of access disputes under Part IIIA in April 2006. The guides provide practical guidance on what steps are involved in an arbitration and what criteria the ACCC must consider in reaching a final binding determination.
Summary guide to resolution of access disputes
This summary guide is designed to assist parties and their advisors who may be considering requesting the ACCC to arbitrate matters related to an access dispute that falls under Part IIIA. It provides a brief overview of the ACCC’s powers in relation to arbitrating access disputes and the way in which the ACCC is likely to conduct the arbitration process.
Note: The current edition of the summary guide was published before the commencement of legislative amendments which took effect from 1 October 2006. Therefore, the guide should be read in conjunction with the current legislation pertaining to Part IIIA.
Parties preparing to notify the ACCC of an access dispute should refer to that guide for more detailed advice.
Note: The current edition of the detailed guide was published before the commencement of legislative amendments which took effect from 1 October 2006. Therefore, the guide should be read in conjunction with the current legislation pertaining to Part IIIA.
Deferral of arbitrations / undertakings and backdating of determinations
The ACCC can defer arbitration of an access dispute where it is also considering an undertaking on related issues. It certain cases, it can backdate a final determination and apply payment of interest to a backdated determination. The ACCC released guidelines relating to deferral of arbitrations and backdating of determinations under Part IIIA in March 2007. The guide explains how the ACCC intends to apply the provisions on deferral of arbitrations and backdating of final determinations when making decisions under Part IIIA.
