Div 4Arbitration of access disputes

Division 4—Arbitration of access disputes 17—Parties to arbitration (1) The parties to the arbitration of an access dispute are— (a) the access seeker; (b) the access provider; (c) any other respondent to the access proposal; and (d) any other person who applies in writing to be made a party and is accepted by the arbitrator as having a sufficient interest. (2) The regulator may participate in an arbitration under this Part. (3) The participation of the regulator may include— (a) providing or calling evidence; (b) making representations on questions arising during the arbitration; and (c) assisting the parties or the arbitrator with any matter (as may be appropriate). 18—Manner in which decisions made Where 2 or more arbitrators are appointed to arbitrate an access dispute— (a) the regulator must appoint one of the arbitrators to preside; (b) any decision to be made in the proceedings may be made by a majority; and (c) if the arbitrators are equally divided in opinion, the decision of the presiding arbitrator prevails. 19—Award by arbitrator (1) Unless the arbitrator terminates the arbitration under clause 22, the arbitrator must make a written award on access to the railway infrastructure service by the access seeker. (2) The award may deal with any matter relating to access to the service by the access seeker, including matters that were not the basis for notification of the dispute. By way of example, the award may— (a) require the access provider to provide access to the service by the access seeker; (b) require the access seeker to accept, and pay for, access to the service; (c) specify the terms and conditions of the access seeker's access to the service; (d) subject to clause 20, require the access provider to expand or extend the railway infrastructure facilities; (e) subject to clause 20, specify the extent to which the award overrides an earlier award or access contract. (3) The award does not have to require the access provider to provide access to the service by the access seeker. (4) Before making an award, the arbitrator must give a draft award to the parties to the arbitration and the regulator and may take into account representations that any of them may make on the proposed award. (5) When the arbitrator makes an award, the arbitrator must give the parties to the arbitration and the regulator the arbitrator's reasons for making the award. (6) The arbitrator may, in providing a draft award or making an award, do either or both of the following: (a) divide the award into parts and limit distribution of a part in order to protect confidential commercial information from unnecessary publication; (b) impose conditions with respect to the disclosure of confidential commercial information in order to prevent unnecessary publication. (7) Despite any other provision, the regulator may disclose confidential commercial information if the regulator is of the opinion that it is in the public interest to do so. 20—Restrictions on access awards (1) The arbitrator cannot— (a) make an award that would— (i) delay the construction of the railway or any part of the railway; (ii) add to the cost of construction of the railway; or (iii) have the effect of requiring the access provider to bear any of the capital cost of any expansion or extension of the railway infrastructure facilities, unless the access provider agrees; or (b) make an award granting access to railway infrastructure facilities where the right of access cannot be satisfied because of a right of access already granted to, and used by, an access holder. (2) The arbitrator cannot make an award that would prejudice the rights of an existing access holder under an earlier access contract or award unless— (a) the access holder agrees; or (b) the arbitrator is satisfied that— (i) the access holder's entitlement to access exceeds the entitlement that the access holder actually needs and there is no reasonable likelihood that the access holder will need to use the excess entitlement; and (ii) the access seeker's requirements cannot be satisfactorily met except by transferring the excess entitlement (or some of it) to the access seeker and the access holder is or will be compensated for any loss suffered as a result of the transfer of the excess entitlement (or relevant part) to the access seeker. (3) Despite subclause (1), the arbitrator may make an award that would have the effect of requiring the access provider to expand or extend the railway infrastructure facilities, or to permit an expansion or extension of the railway infrastructure facilities, if— (a) the expansion or extension is technically and economically feasible and consistent with the safe and reliable operation of the railway infrastructure facilities; (b) the access provider's legitimate business interests in the railway infrastructure facilities are protected; and (c) the terms and conditions on which access is to be permitted are reasonable taking into account the costs to be borne by the parties and the economic benefits to the parties resulting from the expansion or extension. (4) For the purposes of subclause (3)(b), it will be considered not to be in the access provider's legitimate business interests to require the access provider to take action that would— (a) result in a breach of— (i) a reasonable financial or other covenant or commitment given by the access provider to a third party; or (ii) a reasonable security obligation of the access provider to a third party; or (b) result in the access provider having to assume an unreasonable financial, business or other risk, liability or detriment associated with the cost of the expansion or extension. (5) However, subclause (4)(a) does not apply if it is found that the financial or other covenant or commitment was given, or the security obligation was undertaken, (as the case may be) by the access provider for the purpose of preventing or hindering access to a railway infrastructure service. 21—Matters arbitrator must take into account (1) The arbitrator must take the following matters into account in making an award: (a) the legitimate business interests of the access provider, and the access provider's investment in the railway generally; (b) the initial capital cost of the railway infrastructure facilities (including the cost of the rail corridor), the degree of economic risk of the project, and the need for a fair return on the access provider's investment having regard to those costs and that risk; (c) the cost to the access provider of providing access, including any costs of extending the railway infrastructure facilities, but not costs associated with losses arising from increased competition in upstream or downstream markets; (d) the public interest, including the public interest in having competition in markets; (e) the interests of all access holders and other persons who have rights to use the railway infrastructure facilities, including all firm and binding contractual obligations; (ea) in relation to an interface issue involving a corresponding access regime—the interests of the access seeker in having efficient access to the railway; (f) the pricing principles; (g) the economic value to the access provider of extensions to the railway infrastructure facilities, the cost of which is borne by someone else, and any additional investment that the access seeker or access provider has agreed to undertake; (h) the operational and technical requirements necessary for the safe and reliable operation of the railway infrastructure facilities; (i) the economically efficient operation of the railway infrastructure facilities, (and may take into account any other matters, not inconsistent with the matters referred to above, that the arbitrator thinks are relevant). (2) Subclause (1)(b) must be read in a manner that is not inconsistent with the principles set out in clause 6(4)(i) of the Competition Principles Agreement referred to in the Trade Practices Act 1974 of the Commonwealth. 22—Arbitrator may terminate arbitration in certain cases (1) The arbitrator may at any time terminate an arbitration (without making an award) if the arbitrator thinks that— (a) the subject matter of the dispute is trivial, misconceived or lacking in substance; (b) the person seeking arbitration of the dispute has not negotiated in good faith or is acting unreasonably; or (c) the arbitrator is satisfied, on an application of a party to the dispute, that there are good reasons why the arbitration should be terminated. (2) The arbitrator may also, at any time, terminate an arbitration (without making an award), with the consent of the parties to the arbitration. (3) If the arbitrator terminates an arbitration under subclause (1) without making an award, the arbitrator must give the parties to the arbitration and the regulator the arbitrator's reasons for terminating the arbitration.