10Basis on which dispute may be determined

10 Basis on which dispute may be determined

10 Basis on which dispute may be determined

(1) For the purpose of determining a dispute by the date notified under section 9, the arbitrator may make the determination on the basis of the available information and on assumptions that are reasonable to make about information not available at the time.

(2) For the purpose of determining a dispute between a service provider and an access seeker about an infrastructure service the subject of a coverage declaration or access undertaking, the arbitrator may assume, in the absence of evidence to the contrary, the service provider is able to provide the access seeker with the access to the service sought by the access seeker.

(3) Before determining a dispute, the arbitrator must give written notice to the parties to the dispute of the following matters—

(a) assumptions the arbitrator proposes to make for the purpose of the arbitrator’s determination,

(b) each party’s right to make a submission to the arbitrator about the assumptions,

(c) the date by which the submissions should be lodged with the arbitrator.

(4) Failure to give written notice does not affect the validity of the arbitrator’s determination.

Note—

See the Act, section 40(10), which requires the arbitrator to give effect to relevant access undertakings and prohibits the arbitrator from making a determination that would put the service provider in breach of the provider’s other legal obligations.