Document ID: chunk:federal_register_of_legislation:F2017L01112:body:0:p10
Version: federal_register_of_legislation:F2017L01112
Segment Type: other
Provision Reference: 
Character Range: 23961–26786

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 made a final determination on the arbitration prior to making its decision on the access undertaking, either party can seek a variation to the determination. If the other party refuses, then this can form the basis of a dispute notification and the ACCC can resolve the matter by way of arbitration (ss.44S, 44ZU).

Review of the undertaking by the tribunal
A person whose interests are affected by an ACCC decision on an access undertaking decision may apply in writing to the Australian Competition Tribunal for review of the decision (s. 44ZZBF(1)). The review by the tribunal is a reconsideration of the matter and will therefore add to the time involved in considering the access undertaking. In such a situation, it may be appropriate for the ACCC to make an interim or final determination in any arbitration previously deferred pending consideration of the access undertaking. The interim determination will usually be consistent with the ACCC's decision on the access undertaking.
If the ACCC has made an interim determination, once the tribunal has completed its review, the ACCC can either terminate the arbitration or proceed towards finalising the arbitration.
If the ACCC has already made a final determination, then the access undertaking will automatically prevail over the ACCC's determination to the extent of any inconsistency (s. 44ZZCC).

Review of arbitrations by the tribunal
A party to a final determination may apply in writing to the tribunal for review of the determination. The application must be made within 21 days after the ACCC has made the determination (ss. 44ZP(1), (2)). If a party does apply for a review, the determination is of no effect until the tribunal makes its determination on the review. A review by the tribunal is a re-arbitration of the access dispute and the tribunal has the same powers as the commission for the purposes of the review (ss. 44ZP(3), (4)). The decision of the tribunal will take effect as soon as it is made (s. 44ZP(8)).

3.               Backdating of final determinations
3.1.                   General
This section explains the matters the ACCC will consider when deciding whether to backdate a final determination and the methodology that the commission is likely to adopt in awarding interest.
3.2.                   ACCC guideline

3.2.1 Legislative framework
Under s. 44ZO, the provisions of a final determination may be expressed to take effect earlier than the date on which the determination takes effect. In the case of a declared service, a final determination can be backdated to any