The Fijian Competition and Consumer Commission (“FCCC”) has been established  under Section 7 of the Fijian  Competition and Consumer Commission Act 2010 (“FCCC Act 2010”).

The provisions of the Consumer Law in Fiji are covered under Part 3, 4, 6, 7, 8 and 9 of the FCCC Act 2010.

Part 4 of FCCC Act 2010: Arbitration of Access Regime Disputes

Access Provider: a person under the access regime who substantially controls or operates the infrastructure facilities or services concerned.

Third Party: a person who desires access to the infrastructure facilities or services, or desires a change to some aspect of that access, which is substantially controlled or operated.

Process of negotiations of access agreements

According to section 31 of FCCC Act 2010, an access provider and a third party propose to negotiate, or are negotiating, with a view to:-

Agreeing on terms and conditions for access agreements to infrastructure facilities or services; or

Agreeing on a variation of an access agreement to which they are parties, either or both of them may request the FCCC to arrange for a representative of the FCCC to attend the negotiations.

The FCCC must comply with a request or requests by taking following steps to ensure that:-

A member of FCCC or a FCCC staff or

A person whose services are made available to the FCCC under section 20, subsection (2), attends the negotiations on its behalf with a view to facilitating agreement between the parties.

Arbitration of access disputes

According to section 32 of the FCCC Act 2010, if a dispute exists in regards to the access regime,  a party to the dispute may refer the dispute to arbitration.

The Arbitration Act (Cap. 38) applies to arbitration under this Part subject to this Part and the Regulations.

A dispute is taken to exist with respect to an access regime if:-

The third party and the access provider are unable to agree about any aspect of access to the infrastructure facilities, or the services provided under that regime; or

The third party and the access provider are unable to agree about a variation of an existing determination.

The parties to a dispute referred to arbitration under this Part are the third party and the access provider.

Appointment and functions of arbitrator

Access arbitrations concerning declared services are often characterised by a lack of mutual commercial incentives to reach settlement, particularly where the service is provided by means of infrastructure with natural monopoly characteristics and the access provider would compete with the access seeker in upstream or downstream markets.

The appointment of the arbitrator is done in accordance with section 33 of FCCC Act 2010.

The FCCC, or a person appointed may act as an arbitrator to hear and determine a dispute referred to arbitration.

The FCCC may appoint one or more persons to act as arbitrators to hear and determine a dispute referred to arbitration.

If a dispute involves a third party who desires, but does not have access to infrastructure facilities or services, the arbitrator must give public notice of the dispute.

The notice must invite submissions to the arbitrator from the public concerning the dispute and specify when and how those submissions may be made.

In the arbitration of a dispute referred under this part, or in the variation of an existing determination, the arbitrator must take the following into account:-

The access provider’s legitimate business interests and investment in the infrastructure facilities or services; and

The costs to the access provider of providing access, including any costs of extending the facilities, but not costs associated with losses arising from increased competition in upstream or down stream market.

Previous activities as member of FCCC do not disqualify member from acting as Arbitrator

A member is not disqualified from acting as an arbitrator to hear and determine a dispute even though the member represented the FCCC at negotiations about the matter for arbitration.

Determination of dispute by arbitrator

A arbitrator must determine the dispute by making a written determination for the access to the infrastructure facilities or the services which are under dispute.

The determination may deal with any matter relating to access by a third party to the infrastructure facilities or the services, including  the following other matters:-

A requirement that the access provider give the third party access to specified infrastructure facilities or services;

A requirement that the third party accept, and pay for, access to the infrastructure facilities or services; and

A determination of the terms and conditions of access to the infrastructure facilities or services.

Which parties are required to give effect to determination

 The parties to the arbitration must give effect to a determination, if the determination is fair and would provide equitable returns by allowing third party access to infrastructure facilities or services, the access

When can an arbitration be terminated

According to section 36 of FCCC Act 2010 an arbitrator may, without making a determination, terminate the arbitration at any time if the arbitrator thinks that any of the following grounds exists:-

The notification of the dispute was vexatious;

The subject matter of the dispute was trivial, misconceived or lacking in substance;

The party who notified the dispute has not engaged in negotiations in good faith;

Access to the infrastructure facilities or services should continue to be governed by an existing contract between the access provider and the third party; and

If the dispute is about varying an existing determination – there is no sufficient reason why the previous determination should not continue to have effect in its present
time.

Next Week: Part 6 of FCCC Act 2010

Feedback: maraia.vula@fijisun.com.fj