Clifford Chance

ACCC proposes compulsory "Final Offer Arbitration" for disputes between media businesses and the digital platforms, Google and Facebook, in Australia

6 August 2020

On 31 July 2020, the Australian Competition and Consumer Commission (ACCC) released a consultation draft of the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020 (Draft Bargaining Code or the Code). The Draft Bargaining Code is a proposed new piece of legislation designed to give Australian media businesses the ability to bargain with Google and Facebook to secure fair payment for news content. Under the Draft Bargaining Code, if the Australian news business (or businesses) fail to reach an agreement with Google or Facebook through negotiation or mediation, the Australian news business has the right to commence compulsory arbitration to determine the remuneration that Google or Facebook must pay for the use of its news content. In this Briefing Paper we focus on the novel system of "Final Offer Arbitration" that the Draft Bargaining Code proposes, a form of arbitration that originally came to prominence in player salary disputes in professional sports in the United States (hence its colloquial name "baseball arbitration"). 

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