Document ID: chunk:federal_register_of_legislation:F2017L01112:body:0:p9
Version: federal_register_of_legislation:F2017L01112
Segment Type: other
Provision Reference: 
Character Range: 21314–24220

granting its consent, however, the ACCC will impose such conditions as are necessary to protect the confidential information and ensure that it is used and disclosed only for the purposes of the access undertaking assessment process.

Use of information obtained in assessment of the access undertaking (or other non-arbitration responsibilities) in an arbitration context
The ACCC may receive information relevant to an arbitration in the context of performing other non-arbitration responsibilities. This could occur, for example, when assessing an access undertaking proposal.
If there are no confidentiality issues around the use of such information, the ACCC will use the information, if it is relevant and subject to requirements of procedural fairness, in the arbitration. Where appropriate, the ACCC will provide an opportunity for parties to be heard in relation to the use of such information prior to the ACCC issuing a final determination.
The ACCC recognises that it is critical to adopt sound information handling practices to maintain the confidence of all parties to an access dispute. Therefore, if there are claims of confidentiality, the ACCC will consult with the person who provided the information and seek their views on providing the information to the parties. As noted in the ACCC & AER Information Policy: Collection and Disclosure of Information (June 2014), where the ACCC receives information on a confidential basis it will not publicly disclose that information without the consent of the provider. However, the ACCC does reserve the right to use that information for the purpose of performing other statutory functions. Issues related to the use and disclosure of information in an arbitration are discussed further in the ACCC's arbitration guidelines which are available on the ACCC's website.[3]

Coordination of decision making
Where the ACCC decides to defer the arbitration pending consideration of an access undertaking, it will be necessary to 're-activate' the arbitration once the ACCC has made its decision on the access undertaking. Also, where the arbitration has not been deferred, it will be appropriate to 'update' the arbitration to reflect that decision.
If the ACCC decides to accept the undertaking, it may be required to terminate the arbitration (s. 44ZZCB(2)). However, where the arbitration dispute is not withdrawn
(s. 44T) or terminated (s. 44Y), the ACCC will be required to proceed with the arbitration and make an interim or final determination that is consistent with the undertaking.
If the ACCC continues with the arbitration, the work that the ACCC has performed in respect of the undertaking may, as appropriate, be used for the purposes of making an interim or final determination in the arbitration. The terms and conditions of any final determination may include backdating provisions (where appropriate).
In the event that the ACCC has