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ARTICLE · 23 MAY 2016

What does Glencore's Tribunal application mean for infrastructure investors?

Corrs Chambers Westgarth
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Glencore's application followed the new lessor significantly increasing navigation charges at the Port of Newcastle.

AustraliaAntitrust/Competition Law
Thomas Jones (Formerly With Corrs Chambers Westgarth)
Thomas Jones (Formerly With Corrs Chambers Westgarth)
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Perhaps hoping to emulate Tigerair's 2014 success in obtaining greater leverage in commercial negotiations, Glencore lodged an application with the National Competition Council (NCC) for declaration of channel shipping services at the Port of Newcastle in May 2015. While that application was unsuccessful, infrastructure owners will be waiting with interest for the outcome of a recent appeal.

Glencore's application followed the new lessor (a joint venture comprising Hastings Funds Management and the China Merchants Group) reportedly increasing navigation charges at the Port of Newcastle by a significant amount.1

If a service is "declared", the ACCC has the power to compel access or set the terms and conditions of supply. The NCC's draft recommendation was that the services not be declared on the basis that "criterion (a)", one of the mandatory criteria, was not satisfied. Criterion (a) is that access (or increased access) would promote a material increase

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