Committed to Connecting the World
The liberalization of ICT
and dispute resolution
Rory Macmillan
Founding Partner, Macmillan Keck
10th Global Symposium for Regulators
“Enabling Tomorrow’s Digital World”
Dakar, Senegal, 11 November 2010
The views expressed in this presentation are those of the author and do not necessarily reflect the opinions of the ITU or its Membership.
Liberalization and unbundling
ICT
Dispute resolution
Styles of official intervention
Regulatory process
Mediation
Regulatory adjudication, arbitration and special tribunals
Coping with fundamental change and complexity
Official sector
Liberalization and unbundling of ICT
Private sector
Policy maker
Regulator
Applications
Applications
Policy making
Applications
and
services
Regulating
Service provision
Network
operation
Active network
Passive network
Applications
Integrated
Integrated
service
service
providers
providers
and
and
network
network
operators
operators
Applications
MVNO
Retail
Roaming
CPS
Bitstream
Wholesale
network
services and
operations
Wholesale
Network
operations
Passive infrastructure
providers
LLU
Backhaul
Leased lines
Network
managed services
International
gateway
Dark fibre
leasing
Tower
leasing
Netcos
Basic roles in dispute resolution
Arbitrator/ judge/
adjudicator
Determines a specific
issue (e.g., technical or
economic) defined by
agreement to establish
a binding or nonbinding finding of fact
Gives binding decisions on
jurisdiction, procedure,
facts, law and overall dispute
Supports
party’s
assertions
of fact and
analyses
Expert
adjudicator
Party B
Party A
Mediator
Party
expert
Assists parties to explore
interests, “SWOT” and options,
and to communicate to find zone
of possible agreement (ZOPA)
Official sector
Liberalization and unbundling of dispute resolution
Private sector
Courts /
regulatory
Arbitration
Binding expert
Non-binding
Mediation/
determination
determination
conciliation
adjudication
Determines issue
for resolution
Official
Arbitrator &
Parties
Parties /
Parties /
Official
Official
Selects 3rd
party neutral
Official
Controls
process
Official
Arbitrator &
Parties
Makes finding
of fact
Official
Decides result
Reviews
process/result
Enforces
Parties
Parties
Parties
Parties
Parties
(sometimes
(sometimes
Official)
Official)
Expert &
Expert &
Parties
Parties
Mediator &
Parties
Arbitrator
Expert
Expert
None
Official
Arbitrator
Expert
Parties
Parties
Official
Official
Official
Unusual
Probably
none
Official
Official
Official
Official (if
Official (if
agreement)
agreement)
Styles of intervention
Mediation &
conciliation
Non-binding
Non
binding expert
determination
Unofficial
Binding expert
determination
Arbitration
Regulatory
adjudication
Ombudsman
schemes
Consensus building/
consultations
Official
Determinative/
adjudicatory
Consensual/
negotiated
Japan’s Telecommunications
Business Dispute
Settlement Commission
Mediation in regulatory process
UK Office of
Telecommunications
Adjudicator (OTA2)
Others - 4 cases
(8.5%)
Use/operation of
facilities - 3 cases
(6%)
Consent for or
refusal of
interconnection 3 cases (6%)
Sharing of
interconnection
costs - 34 cases
(71%)
Use of structures
required for
interconnection
(e.g., collocation) 4 cases (8.5%)
Canada’s CRTC staff mediation,
final offer arbitration and
expedited hearings
Dismissed/
terminated - 3
cases
(3%)
Withdrawn
without
agreement 16 cases
(34%)
Resolved by
agreement - 29
cases
(63%)
Regulatory adjudication, arbitration and special tribunals
Courts
Appeals and judicial review
Special appeal
mechanisms (e.g.,
India, PNG, Solomon
Islands)
Special tribunal
Law remits disputes to
special tribunal (e.g.,
India, Solomon Islands,
Fiji, Bahamas)
Service
provider A
Arbitration by
law or licence
(e.g., Bahrain,
Egypt, Sudan)
Agreement provides
for arbitration (e.g.,
Egypt, Sudan)
Regulatory authority
Law authorises
regulator to
resolve disputes
Wholesale
agreement
Arbitration panel
Service
provider B
Coping with fundamental reform
FNPF
ATH
Telecom Fiji
C&W
Government
of Fiji
Fintel
High Court injunction
Vodafone
Vodafone
Fiji
Handling complexity
Indemnity
New shareholder
Old shareholder
Minority
Government
shareholder
x100
Destination
carrier
Expert:
chairman,
negotiator
mediator
adjudicator
Telecom
operator
Destination
carrier
x10
Transit
operator
Transit
operator
Settlement
committee
Transit
operator
Transit
operator
Destination
carrier
Destination
carrier
Destination
carrier
Destination
carrier
Destination
carrier
MACMILLAN KECK
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