Document ID: chunk:federal_register_of_legislation:F2017L01112:body:0:p6
Version: federal_register_of_legislation:F2017L01112
Segment Type: other
Provision Reference: 
Character Range: 13478–16396

have already been substantively considered in arbitrations
    * the arbitrations deal with issues separate or additional to those covered in the undertaking
    * consideration of the undertaking is likely to involve a long time frame.
Each of the circumstances is addressed below. Rather than establish prescriptive rules, and because the ACCC must exercise its discretion on a case-by-case basis, the guidelines explain how the ACCC would be likely to approach situations involving those circumstances.
These are not the only circumstances in which it may be appropriate to continue with arbitration, and others can be considered pursuant to s. 44ZZCB where relevant.

Matters already substantively considered in arbitration
If the ACCC were to rigidly apply the principle of deferring arbitrations while considering an access undertaking on the same matter, then this could lead to adverse consequences. It could have the effect of creating an incentive for access providers to offer access undertakings only once arbitrations have progressed through their substantive phase[1], with a view to delaying further progress or completion of the arbitration. To reduce the risk of an access provider attempting to delay arbitrations through submitting undertakings, the ACCC may decide to conduct the arbitration and undertaking processes concurrently.
In the ACCC's view, it is preferable for access undertakings to be provided as early as possible and at least prior to commencement of the substantive phase of arbitrations. This ensures that the ACCC, access seekers and other interested persons focus on the establishment of industry-wide access arrangements through a public and transparent process in a timely manner.
Where, matters in an access undertaking have already been substantively addressed in arbitration at the time the undertaking is given, deferring the arbitrations is likely to delay their completion. In this circumstance, it may be appropriate to continue with arbitration in order to make a final determination or at least put in place an interim determination reflecting the work undertaken to date.
When the ACCC decides to continue with arbitration, it can make an interim determination and then commence assessment of the access undertaking. If the access undertaking is accepted by the ACCC, the ACCC must terminate the arbitrations to the extent that the matters in dispute are dealt with in the undertaking. The ACCC would, in normal circumstances, continue with arbitration in order to make a final determination if there are matters still in dispute which are not dealt with in the undertaking (in relation to those matters only). If the access undertaking is not accepted by the ACCC, the interim determination would continue in effect unless revoked or until such a time as the ACCC issues a final determination in relation to the arbitration.
Where an access provider chooses to wait