Dispute Resolution Techniques and Approaches - TT

1 1 Dispute Resolution Techniques and ApproachesKuala Lumpur28 August 2015 ITU-MCMC International Training Program2015 Scott Place : Importance of effective Dispute areas of Dispute in the telecommunication sector3. Dispute Resolution Options Formal Dispute Resolution Alternative Dispute Resolution3. Alternative Dispute Resolution4. ConclusionsAgenda3 OverviewICT disputes are multi-faceted and can have adverse effects ontechnology development, investmentandconsumer to resolve disputesquicklyandeffectivelycan; Delay the introduction of new services and infrastructure Block or reduce the flow of capital from investors Limit competition, leading to higher pricing and lower servicequality Cause unnecessary expenditure in the Courts and other publicservices, where a Dispute could be resolved effectively by othermeansIt is important that a variety of Dispute Resolution procedures areavailable to parties sothat disputes are resolved in ajust, timelyandcost-effective areas of disputeCommon areas of Dispute in the telecommunications sector relate to.

2 Interconnection as network deployments mature disputesrelating to interconnection tend to increase in both frequency andvalue. Such disputes often concern technical, operational or pricingmatters, or a combination. Infrastructure access in jurisdictions where network facilitiessharing is permitted, disputes between operators can arise inrelation to gaining access to infrastructure and the terms on whichaccess which may be granted. Spectrum likely to arise where there is interference affectingone operator s network caused by another operator and whereboth operators are acting in accordance with the Resolution : OptionsDispute Resolution procedures can be split intotwo categories.

3 The first category isformal Dispute Resolution , primarilyinvolving court adjudication. The second category is a more informal option for parties andis labeledAlternativeDispute Resolution (ADR). Thiscategory includes negotiation, mediation and are advantages and disadvantages to both Dispute ResolutionCourt adjudication is anappropriate choicefor parties to a disputewhen: Oneof the twoparties to the disputeis extremelyuncooperative. In orderto clarify its rights, a party seeks to establish a public legalprecedent rather than an award that is limited to the relationshipbetween the , the court system in many jurisdictions often struggle to dealwith complex industry disputes , with manyjudges use of court adjudication in complex telecommunications disputescan thus lead tohigh costs and delayfor both parties and as well ascommercially inappropriate judgmentsthat can harm the disputeresolutionpractices may therefore bemorepreferablein many commercial disputesinthe Dispute Resolution .

4 TypesAlternative Dispute Resolution (ADR)are procedures for settling disputesby means other than litigation or administrative most commonly used ADR procedures are: NegotiationA consensual process that may allow the parties to arrive at amutually agreeable solution. The parties may be represented by legalor other counsel. MediationA consensual process that involves a neutral third party in facilitatingdispute Resolution . It is generally more structured than negotiationand the discussions and process are facilitated by the mediator,however the parties still maintain control over the final :Types ArbitrationA consensual process in which disputing parties agree to refer adispute to a neutral third party arbitrator or panel of arbitratorsfor Resolution .

5 Regulatory Dispute ResolutionA subset of arbitration, where regulatory authorities use theirlegal powers to make decisions resolving disputes brought beforethem. However, the range of disputes that are brought can onlybe relation to regulation and therefore cannot be used in privatecommercial :AdvantagesWhen used in appropriately, ADR offersseveral advantagesfortelecommunication sector disputes when compared with formallitigation : Reduction in the time frame for Resolution of disputes Cost-savings for parties to the Dispute Avoidance of the unnecessary use of court resources Greater party control over the way their Dispute is resolved More commercially sensitive outcomes, as parties can choose amediator/arbitrator appropriate who has expertise in the sector10 ADR.

6 Advantages Guaranteed confidentiality as ADR proceedings are private,allowing parties to focus on the merit of the Dispute withoutconcern about its publicimpact Increased likelihood of the preservation of relationshipsbetween the parties, with ADR providing a less adversarialenvironment than formal litigationsprocedures Success in both civil and common law systems11 ADR-ExamplesThe promotion of a more developed market specifically aimed attelecommunications sector Dispute resolutioncan reducetransaction costs to parties and to the sector as a of markets that have successfully integrated ADR intotheir legal systems include: Saudi Arabiaand its pre-regulatory arbitration requirements Singaporeand its mediation practices12 ADR.

7 Saudi ArabiaChapter 6 of the Saudi Telecommunications Bylawshas setforth a flexible Dispute Resolution mechanism in order to encouragethe use of procedures set out in the Bylaws are clearand , a period of negotiation is required between the partiesbefore bringing a case to theSaudi Communications and InformationTechnology Commission. This reduces the burden on the regulator by promotingindependent settlement between the parties. Even if the parties do not reach an agreement throughnegotiation, such communication between the parties can narrowthe issues of the Dispute , reducing time and expense when thecase is brought before the : SaudiArabia (2)Once a case is received, the Commission is not constrained to followan inappropriate Dispute Resolution procedure but has discretion todetermine the best mechanism to adopt for each Dispute , includingmediation, final offer arbitration and regulatory approachhas the ability to take into accountparticular circumstances of each case in order to ensure that themost effective procedure is.

8 SingaporeThe mediation movement in Singapore began in the then, there has been arapid and continuous growthin theuse of mediation to resolve commercial mediations are conducted under the auspices ofthe Singapore Mediation Centre (SMC) and are governed by astandard Mediation a case is referred to the SMC, the SMC will match the expertiseand experience of the mediators to the case to leverage on thesubject matter knowledge of the :Singapore (2)The success of the SMC lay in its introducing private commercialmediation to the legal profession and creating a space for it inSingapore s civil justice was possible in large part due to the support of the SMC fromboth the Supreme Court and the Subordinate Courts, which have asystem in place for referring cases to , SMC introduced a Mediation Charter was introduced in2011 to further promote mediation.

9 The Charter is a pledge thatorganisationsundertake to signal their commitment to promotemediation through five core actions, including using mediation as afirst resort to resolve the organization's disputes with other to addressGuidelines for ADR Should sector guidelines be established for mediation andarbitration procedures by the regulator? Should the telecommunications regulator require the attempt ofADR before any formal regulatory action has taken place? Should the legal system require the use of ADR before any casecan be heard in court?Costs for undertakingADR Who should forebear of the costs ofADR? Parties/regulator?

10 TimingforADR What time frame should be set foran ADR process before moreformal Dispute Resolution is required?17 ConclusionIt is important that a variety of Dispute Resolution procedures areavailable to parties so that disputes are resolved in ajust, timelyandcost-effective to the complex nature of many telecommunications disputes ,court adjudication is sometime inappropriate andcan causeunnecessary delay, expense and commercially is a more flexible approach for Dispute Resolution , offering manyadvantages that can promote positive change in the arbitration experience in Tonga and Bahrain, I have seen thepositive change ADR can have to telecommunications ADR systems can be seen in both Saudi Arabia LinksSingapore Mediation System Dispute Resolution Report YouI am happy to answerany W Place Consulting+61 412 99553520