Batter Up: ACCC Proposes Compulsory Final Offer Arbitration …

Sam Luttrell and Dave Poddar

Australian Journal of Competition and Consumer Law

Sam Luttrell and Dave Poddar, ‘Batter Up: ACCC Proposes Compulsory Final Offer Arbitration for Disputes between Media Businesses and Digital Platforms in Australia’ (2020) 28(4) Australian Journal of Competition and Consumer Law 225

Abstract

This article analyses the Mandatory Bargaining Code that the Australian Competition and Consumer Commission (ACCC) has proposed to give Australian media businesses the ability to bargain with Google and Facebook to secure fair payment for news content. Under the ACCC's Code, if an Australian news business fails to reach an agreement with Google or Facebook through negotiation or mediation, the news business will have the right to commence a 45-day compulsory "Final Offer Arbitration" process to determine the remuneration that Google or Facebook must pay for the use of its news content. The article focuses on the practical and legal issues that may arise from the use of Final Offer Arbitration to resolve disputes, including whether the arbitration process prescribed by the Code falls within the scope of Australia's arbitration legislation and the extent to which determinations made by arbitrators under the Code will be subject to any form of appeal.