The Arbitration process can vary according to the type of dispute. Arbitrations are governed by the NSW Commercial Arbitration Act 2010. The Act provides that Arbitrators can extensively case manage the process of Arbitration, determine a matter without examination or cross examination of any witnesses and limit the manner in which a dispute is presented. In most cases Arbitrators will hold a Case Management conference and will discuss settlement options together with the approach to the Arbitration before the panel begins to deal with the matter.
Note: Sections referenced in diagram refer to Module G - Dispute Management Rules of the Wholesale Broadband Agreement which is a Standard Form of Access Agreement for the purposes of Part XIC of the Competition and Consumer Act 2010.
Referenced sections of Module G of NBN Co’s SFAAs have been reproduced below.
G4 Commencing Arbitration Process
G4.1 Referral of Disputes to a Resolution Advisor
(c) Where the Resolution Advisor receives a Referral Notice, the Resolution Advisor will notify each party to the Dispute of that fact within 1 Business Day of receipt of the Referral Notice.
G4.2 Constitution of the Panel
(h) The Resolution Advisor will promptly, and within 2 Business Days, following appointment of the Panel, provide the Panel with the information provided to it by the parties pursuant to clause G4.1(d) and such other information he or she received in respect to the Dispute.
G4.3 Classification of Dispute
(a) Prior to the expiry of 7 Business Days from the date on which the Panel are provided with the information pursuant to clause G4.2(h) the Panel must classify the Dispute.
(b) In classifying the Dispute, the Panel must:
(i) determine the real questions in controversy between the parties (and is not bound by the parties' formulation of the questions); and
(ii) have regard to any Approved Dispute Guidelines which address classification.
(c) The Panel may invite further submissions on classification from the parties to the Dispute prior to making its decision on classification.
(d) The Panel must classify the Dispute as an Industry Relevant Dispute only if the Panel considers, based on the materials before it and the facts, matters and circumstances of the Dispute in question, that the resolution of the Dispute will, or is likely to, materially affect Other NBN Co Customers, including by reason of the Non-Discrimination Obligations.
(e) A classification decision of the Panel is made by a majority of the Panel Members.
(f) Any classification by the Panel under clause G4.3(d) will be made:
(i) irrespective of whether NBN Co and any potentially affected Other NBN Co Customer are currently in dispute; and
(ii) subject to reclassification as a Bilateral Dispute in accordance with clause G6.2(e).
(g) If the Panel does not classify a Dispute as an Industry Relevant Dispute under clause G4.3(d), then the Dispute is classified as a Bilateral Dispute.
(h) Within 2 Business Days following classification of the Dispute under clauses G4.3(d) or G4.3(g), or a reclassification of a Dispute under clause G6.2(e), the Resolution Advisor must notify NBN Co and Customer in writing of the decision of the Panel in respect to classification.
G6 Resolution of Industry Relevant Disputes
G6.2 Invitation to Other NBN Co Customers to apply to be joined to the Panel Arbitration for an Industry Relevant Dispute
(a) In accordance with this clause G6.2, the parties to the Panel Arbitration for an Industry Relevant Dispute are NBN Co, Customer and any Accepted Invitee.
(b) Within 5 Business Days of the Dispute being classified as an Industry Relevant Dispute, the Resolution Advisor will, in accordance with the Approved Dispute Guidelines, issue an Invitation in writing to all potentially affected Other NBN Co Customers. An Invitation must inform each Invitee of the commencement of the Industry Relevant Dispute and of their right to make an application to become a party to the Panel Arbitration for that Industry Relevant Dispute.
(c) An Invitation will be in the form detailed in the Approved Dispute Guidelines and will setout:
(i) a brief history of the Industry Relevant Dispute (subject to the preservation of the confidentiality of NBN Co's and Customer's confidential information);
(ii) the process which the Invitee must comply with in order to make a valid application to become a party to the Panel Arbitration for the Industry Relevant Dispute, including the making of submissions in support of the Invitee's application to be joined as a party to that Panel Arbitration;
(iii) the conditions and/or criteria that the Invitee must meet, to the Panel's
satisfaction, to become a party to the Panel Arbitration for the Industry
(iv) the terms on which the Panel Arbitration will be conducted;
(v) the deadline for responses to the Invitation; and
(vi) any other information the Resolution Advisor considers relevant to the
(d) In considering any application made by an Invitee to become a party to the Panel Arbitration for the Industry Relevant Dispute arising under this Agreement, the Panel must consider:
(i) if the Invitee has, or is likely to have, a sufficient interest in the subject matter of that Industry Relevant Dispute that is likely to be materially affected by the resolution of that Industry Relevant Dispute (a sufficient interest);
(ii) whether the Invitee becoming a party to the Panel Arbitration might unreasonably interfere with the ability of the NBN Co and the Customer to the Panel Arbitration to conduct the proceeding as they wish;
(iii) the effect of any applicable Non-Discrimination Obligations; and
(iv) any Approved Dispute Guidelines addressing the criteria and conditions to be applied in determining whether Other NBN Co Customers should become a party to a Panel Arbitration for an Industry Relevant Dispute.
(e) If no Invitees have submitted an application in response to an Invitation prior to the deadline for responses detailed in the Invitation, or the Panel determines that no Invitee that has submitted an application in response to an Invitation prior to that deadline should, in the Panel's reasonable opinion having regard to the matters in clause G6.2(d) and the Approved Dispute Guidelines, be joined to the Panel Arbitration on this Dispute, then the Dispute will then be classified, managed and resolved as a Bilateral Dispute.
(f) The Panel will, within 10 Business Days following the deadline for responses detailed in the Invitation conclusively determine the parties to that Panel Arbitration in accordance with the Approved Dispute Guidelines and notify the Resolution Advisor of its decision.
(g) The Resolution Advisor will notify in writing, within 2 Business Days of the Panel's decision referred to in clause G6.2(f):
(i) each Invitee of the Panel's decision on the Invitee's application; and
(ii) each party to the Panel Arbitration for the Industry Relevant Dispute of the identity of each of the other parties to that Panel Arbitration.
G7 Panel Arbitration
G7.1 Panel Arbitration governed by the Commercial Arbitration Act 2010 (NSW)
(a) The provisions of the CAA will apply to the conduct of any Dispute to be resolved by Panel Arbitration, except where (in accordance with the CAA) the parties have agreed otherwise in these Dispute Management Rules.
(b) For the purpose of the CAA, the proceedings in respect of a Panel Arbitration commence on:
(i) for Bilateral Disputes:
(A) the date of appointment of the Panel under clause G4.2(g); or
(B) where clause G6.2(g) applies, the date of the notice given by the Resolution Advisor to NBN Co and Customer under clause G4.3(h);
(ii) for Industry Relevant Disputes, the date of receipt of the last notice from the Resolution Advisor to all the persons accepted as parties to the Industry Relevant Dispute identifying all of the parties to the Dispute in accordance with clause G6.2(g)(ii); or
(iii) in either case, such other date agreed between the parties to the Dispute and the Panel.
(c) Panel Arbitrations will be conducted in English in Sydney, Australia under the law of New South Wales. The Panel may meet at any other place for consultation among the Panel Members, to attend any inspection, or engage in consultation by any electronic medium, but may not hold any hearing at any place other than Sydney, unless otherwise agreed by all parties to the Dispute.
Panel Arbitration Overview
Panel classifies dispute as either Industry Relevant Dispute or Bi-lateral Dispute
Industry Relevant Dispute
Identified as IRD
RA issues invitation
Panel determines parties
RA notifies parties and Invitees
Identified as Bi-Lateral Dispute
Panel determines dispute - CAA applies unless parties otherwise agreed