Award Publication Process
Note: Sections referenced in diagram refer to Module G - Dispute Management Rules of the Satellite 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.
G7 Panel Arbitration
G7.2 Arbitration Award
(a) Before making any orders, decisions, determinations or Awards, the Panel must, as part of their decision-making process, have regard to whether the:
(i) order, decision, determination or Award; and
(ii) implementation of the order, decision, determination or Award by the parties, will or is likely to require NBN Co to treat Customer, any Other NBN Co Customer or any Customer in a manner that does not comply with the Non-Discrimination Obligations.
(b) The Panel must have regard to, but is not bound to follow, any award previously made by an arbitration panel in respect of a dispute under any Other Satellite Wholesale Broadband Agreement or Other Wholesale Broadband Agreement, to the extent relevant to the Dispute.
(c) Where the Panel has regard to any award previously made by an arbitration panel in respect of a dispute under any Other Satellite Wholesale Broadband Agreement or Other Wholesale Broadband Agreement, the Panel must ensure that the confidentiality of any commercially sensitive information of a party to that previous award is preserved.
(d) The Panel will make its Award in respect of the Dispute and as soon as is reasonably practicable, and:
(i) in the case of a Bilateral Dispute, will provide the parties with a signed copy of its Award by no later than 30 Business Days after a notice is given under clause G4.3(h) of a classification under clauses G4.3(g) or G6.2(e), as the case may be, or such other date agreed by the parties to the Dispute or determined by the Panel after consultation with the parties; or
(ii) in the case of an Industry Relevant Dispute, will provide the parties with a signed copy of its Award by no later than 50 Business Days following the date on which the last of the notices in clause G6.2(g)(ii) have been given, or such other date agreed by all of the parties to the Industry Relevant Dispute or determined by the Panel after consultation with all of the parties to the Industry Relevant Dispute.
(e) Each party has 20 Business Days from receipt of notice of the Panel’s Award to exercise its rights to:
(i) apply to the Panel for correction or interpretation of the Award under section 33(1) of the CAA; or
(ii) apply to the Panel for an additional award pursuant to section 33(5) of the CAA.
(f) The parties acknowledge that:
(i) an Award may be set aside by a court, pursuant to section 34 of the CAA; and
(ii) an appeal may be made to the court against an Award on a point of law, under section 34A of the CAA.
G7.3 Publication of the Award
(a) Notwithstanding section 27E of the CAA, NBN Co and Customer agree and consent to the publication of Awards and access to published Awards by Other NBN Co Customers and access seekers.
(b) Within 5 Business Days after:
(i) the expiry of the period in which a party can exercise its rights under sections 33 (to amend or interpret the Award or make an additional award), 34 (to set aside the Award), or 34A (to appeal a question of law arising out of an Award) of the CAA; or
(ii) where a party has exercised its rights under sections 33, 34 or 34A of the CAA, the Award is confirmed or varied by the court, or a correction or interpretation of the Award or an additional award is made, the Panel will give each party to the Panel Arbitration a notice:
(iii) advising that NBN Co will publish a copy of the Award (as confirmed, varied, corrected, together with any interpretation or additional award) (the Confirmed Award) on NBN Co's Website (subject to the confidentiality
provisions set out below) for access by Other NBN Co Customers and Access Seekers; and
(iv) inviting the party to make a written submission to the Panel within 5 Business Days after the date of that notice identifying and justifying any part of the Confirmed Award that the party considers is confidential to them and should not, therefore, be published.
(c) Within 15 Business Days of issuing a notice under clause G7.3(b), the Panel will:
(i) have regard to any written submissions that have been made to the Panel in accordance with the notice in clause G7.3(b); and
(ii) notify NBN Co whether and which parts of the Confirmed Award need to be redacted to protect confidentiality (if any).
(d) When preparing a copy of the Confirmed Award for publication, NBN Co must redact those parts of that Confirmed Award that the Panel has required NBN Co to redact in accordance with clause G7.3(c)(ii).
(e) NBN Co must publish on NBN Co's Website a copy of the Confirmed Award, subject to any redaction in accordance with clause G7.3(c), for access by Other NBN Co Customers and Access Seekers.
G11.1 Other party costs
Except as otherwise provided in these Dispute Management Rules or determined in accordance with the CAA, neither NBN Co nor Customer will be required to pay the other for any of the other party’s costs and expenses in the conduct of Disputes and Other NBN Co Customer Disputes.
G11.2 Costs of Panel
(a) Subject to clause G11.3 or any agreement between the parties to the Dispute, where a Panel is appointed in respect to a Dispute the costs of the Resolution Advisor and the Panel will be shared equally amongst all of the parties to the Bilateral Dispute or Industry Relevant Dispute.
(b) The Panel must detail its costs and the costs of the Resolution Advisor in its final decision and the costs payable by each party to the Dispute.
(c) The costs of the Panel and the Resolution Advisor in an Industry Relevant Dispute in clause G11.2(a) include the costs relating to the Panel's classification of the Dispute.
G11.3 Costs decision
The Panel may include in the Award a decision in respect to costs that differs from the presumption in clause G11.2(a). In deciding to allocate costs against one or more parties to a Dispute, the Panel may have regard to any relevant matters, including (but not limited to) whether the conduct of that party or those parties unreasonably prolonged or escalated the Dispute or otherwise increased the costs of the Panel proceedings.
Award Publication Outline
The Panel provides copy Award to Parties. Award final and binding unless recourse available.
Recourse to Court - Available where question of law or application to set aside Award
Recourse to Panel - Available where correction or interpretation of Award or additional award requested.
Panel issues notice to invite parties to make submissions for redactions of Award before publication (to protect confidentiality)
Panel will assess submissions and direct Resolution Advisor and NBN Co to make redactions (if any) and to publish Confirmed Award on NBN Co's website.
Costs of Resolution Advisor in respect of dispute-related functions and costs of Panel to be shared equally between parties to Dispute unless Panl decides otherwise. (Note: Panel will detail costs order in its final Award. Costs include Panel's classification of Dispute.
Alternatively, Neither NBN Co or Customer may be required to pay other party's costs and expenses in the conduct of a Dispute, unless determined otherwise in ACA.