Document ID: chunk:federal_register_of_legislation:F2017L01112:body:0:p14
Version: federal_register_of_legislation:F2017L01112
Segment Type: other
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Character Range: 34146–36900

the money to reduce their overdraft or to finance new investment.
    * the risk of not being repaid in the event that the person to whom the overpayment was made becomes insolvent.
Similar principles would also apply to the case of an underpayment.
Where the parties have reached agreement on an interest rate, the ACCC may have regard to this rate as evidence of the parties' estimate of the opportunity cost. If, however, the rate agreed by the parties appears to significantly depart from a reasonable estimate of the opportunity cost (for instance if it is more in the nature of a 'penalty'), or if no rate has been agreed, then the ACCC may base its calculations on the rate that would have been paid to raise the amounts by means of debt financing. As a general guide, the ACCC's preferred approach will be to adopt the variable indicator rate for large businesses that is published by the Reserve Bank of Australia.[4]
In determining the interest rate, it is also necessary to determine the frequency with which interest is compounded—daily, monthly or annually. In this regard, the ACCC will consider any approach agreed between the parties in respect of repayment of monies and, in the absence of agreement, the approach which would be adopted in a debt financing agreement. As a general guide, the interest rate period is likely to be determined by the timing of cash flows to the business that is owed the settlement.
A decision to backdate a final determination and award interest raises a number of issues and it is possible that the ACCC may decide to invite or direct parties to make written submissions in order to fully consider the circumstances and extent to which such decisions should be made.

3.2.6 Impact of interim determinations on backdating
Where backdating is a satisfactory alternative to an interim determination, the ACCC will consider not granting an interim determination. However, the fact that an interim determination has been made does not mean that backdating is ineffective and therefore unnecessary. The interim determination helps to ensure that the objectives of Part IIIA are realised in the period leading up to the final determination. Backdating is, nevertheless, important in reducing incentives to delay progression towards the final determination.

3.2.7 Symmetry of approach
The situation generally envisaged involves an access provider 'refunding' to the access seeker the difference between the charges payable over the period leading up to the final determination and the charge set by the ACCC. However, it is conceivable that the reverse situation may occur, where the determination sets a charge higher than that currently being paid by the access seeker. In such a situation, backdating is still