Court-Enforceable Undertakings to the ACCC: When to Negotiate Rather Than Defend

Key Takeaways

• A court-enforceable undertaking is a formal, enforceable commitment that can resolve an ACCC matter without contested litigation.
• It offers certainty and shows cooperation, but it binds the business going forward.
• Negotiating tends to make sense where the regulator's concerns are well founded and resolution serves your interests.
• Defending tends to make sense where the law or the facts are genuinely arguable.
• The terms should be scrutinised closely before they are accepted.

1. 1.What is a court-enforceable undertaking?
2. 2.Why businesses choose to negotiate
3. 3.When defending may be the better course
4. 4.Step 1: Test the strength of the regulator's concerns
5. 5.Step 2: Weigh certainty against principle and cost
6. 6.Step 3: Scrutinise the proposed terms carefully
7. 7.Step 4: Negotiate rather than simply accept
8. 8.Step 5: Plan for compliance from day one
9. 9.What this means for your business
10. 10.Frequently Asked Questions

A court-enforceable undertaking can resolve an ACCC matter cooperatively and avoid the cost and uncertainty of litigation. This guide explains what an undertaking involves, when negotiating beats defending and what to check before you commit.

What is a court-enforceable undertaking?

A court-enforceable undertaking is a formal commitment given to the ACCC under section 87B of the Competition and Consumer Act 2010 (Cth), which the regulator can accept. Because it is enforceable, a failure to comply can itself be taken to court. Typical commitments include running or improving a compliance program, providing redress to affected consumers, stopping particular conduct or reporting on compliance over a period.

Its defining features are three. It is voluntary, in that the business offers it. It is formal, in that it is documented and accepted by the regulator. And it is enforceable, in that the courts stand behind it.

Why businesses choose to negotiate

There are several reasons a business may prefer an undertaking to contested litigation.

• It provides a known outcome rather than the uncertainty of a court result.
• It usually costs less and concludes sooner than litigation.
• Offering a sensible undertaking shows good faith and a willingness to put things right.
• The business has some influence over the commitments, which it does not have with a court-imposed order.

When defending may be the better course

Negotiation is not always right. Defending can be the better course where the facts are genuinely in dispute, where the law is arguable or where an undertaking would impose obligations that are commercially unworkable. There is also a point of principle. A business should not commit to remedying conduct it does not accept occurred, simply to make a matter go away, where the consequences of that commitment are significant. Our dispute resolution and litigation team can advise on the merits of defending.

Step 1: Test the strength of the regulator's concerns

Start with an honest assessment. Are the ACCC's concerns well founded? If the evidence of contravention is strong, an undertaking may serve your interests. If the case is weak or the law is genuinely arguable, the calculus shifts toward defence.

Step 2: Weigh certainty against principle and cost

Compare the certainty and lower cost of a negotiated outcome against the prospect of a successful defence and the cost of getting there. Factor in management time, reputation and the value of moving on. Penalties set by the Court in contested proceedings can be significant, and that exposure is part of the equation.

Step 3: Scrutinise the proposed terms carefully

If you are inclined to negotiate, the terms matter enormously. An undertaking is enforceable, so the commitments must be realistic and capable of being met. Ask whether the compliance obligations are workable, whether the reporting requirements are proportionate and whether any redress mechanism is clearly defined. Vague or overly ambitious commitments set up a later breach.

Step 4: Negotiate rather than simply accept

An undertaking is the product of negotiation, not a take-it-or-leave-it document. With experienced advice, a business can often refine the terms so the regulator's legitimate concerns are met without unworkable burdens. Engaging early, through your lawyer, is what makes that possible.

Step 5: Plan for compliance from day one

Once an undertaking is in place, compliance is not optional. Build the systems, assign responsibility and diarise the reporting obligations before the undertaking takes effect. The whole value of resolving cooperatively is lost if the business later breaches the very commitment it offered.

What this means for your business

A court-enforceable undertaking lets you resolve an ACCC matter on terms you have helped shape, but it is a commitment with teeth. The decision to negotiate rather than defend should follow an honest read of the regulator's case, a clear view of the cost and certainty trade-off and close scrutiny of the proposed terms. Done properly it can be an excellent outcome. Done carelessly it just creates new problems.

Frequently Asked Questions

What is a court-enforceable undertaking?

A formal commitment given to the ACCC under section 87B of the Competition and Consumer Act 2010 (Cth), accepted by the regulator and enforceable by the courts, to do or refrain from doing certain things, such as running a compliance program or providing redress.

Is giving an undertaking an admission of liability?

It depends on how the undertaking is framed. The wording matters, which is why the terms should be reviewed carefully with a lawyer before they are accepted.

When should I negotiate rather than defend?

Negotiation tends to make sense where the regulator's concerns are well founded and resolution serves your interests. Defence tends to make sense where the facts or the law are genuinely arguable or the proposed terms are unworkable.

What happens if I breach an undertaking?

Because it is enforceable, a breach can be taken to court. That is why the commitments must be realistic and a compliance plan should be in place from the outset.

Can the terms of an undertaking be negotiated?

Yes. An undertaking is the product of negotiation. With experienced advice you can often refine the terms so the regulator's concerns are met without unworkable obligations.

This is general information, not advice on your situation. If you are considering whether to negotiate an undertaking or defend, please get in touch or call (07) 4270 8880.

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