the liberalization of ict and dispute resolution · committed to connecting the world the...
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Committed to Connecting the World
The liberalization of ICT
and dispute resolution
Rory MacmillanFounding Partner, Macmillan Keck
10th Global Symposium for Regulators“Enabling Tomorrow’s Digital World”“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
BitstreamBitstream
Policy making
Regulating
Service provision
Network operation
Active network
Passive network
Policy making
Regulating
Service provision
Network operation
Active network
Passive network
Policy makerPolicy maker
RegulatorRegulator
Retail
ApplicationsApplications
Passive infrastructure Passive infrastructure providers
Wholesale
Network Network operations
Liberalization and unbundling of ICT
ApplicationsApplications
Official sector
Private sector
LLULLU
CPSCPS
BackhaulBackhaul
Network Network managed services
Leased linesLeased lines
International gateway
International gateway
Tower Tower leasing
NetcosNetcos
Dark fibreDark fibreleasing
MVNOMVNO
RoamingRoaming
Integrated Integrated
service
providers
and
network
operators
ApplicationsApplications
ApplicationsApplications
Integrated Integrated
service
providers
and
network
operators
Applications Applications and
services
services and
Wholesale network
services and operations
MediatorMediator
Expert adjudicator
Expert adjudicator
Party expert
Gives binding decisions on jurisdiction, procedure, facts, law and overall dispute
Supports party’s assertions of fact and analyses
Assists parties to explore interests, “SWOT” and options, and to communicate to find zone of possible agreement (ZOPA)
Determines a specific issue (e.g., technical or economic) defined by agreement to establish a binding or non-binding finding of fact
Arbitrator/ judge/ Arbitrator/ judge/ adjudicator
Party BParty BParty AParty A
Basic roles in dispute resolution
Determines issuefor resolution
Selects 3rd
party neutral
Controls process
Makes findingof fact
Decides result
Reviews
process/result
Enforces
Courts /
regulatory
adjudication
Official
Official
Official
Official
Official
Official
Official
Arbitration
Arbitrator &Parties
Parties /
Official
Arbitrator &Parties
Arbitrator
Arbitrator
Official
Official
Binding expert
determination
Parties
Parties /
Official
Expert &
Parties
Expert
Expert
Official
Official
Non-binding
determination
Parties
Parties
(sometimes
Official)
Expert &
Parties
Expert
Parties
Unusual
Official (if
agreement)
Mediation/
conciliation
Parties
Parties
(sometimes
Official)
Mediator &Parties
None
Parties
Probably none
Official (if
agreement)
Liberalization and unbundling of dispute resolution Official sector
Private sector
Determinative/adjudicatory
Consensual/ negotiated
Official
Unofficial
RegulatoryRegulatory
adjudication
ArbitrationArbitration
Mediation & Mediation &
conciliation
Non binding expert Non-binding expert
determination
Ombudsman Ombudsman
schemes
Consensus building/ Consensus building/
consultations
Binding expert Binding expert
determination
Styles of intervention
Sharing of interconnection costs - 34 cases
(71%)
Use of structures required for
interconnection (e.g., collocation) -
4 cases (8.5%)
Consent for or refusal of
interconnection -3 cases (6%)
Use/operation of facilities - 3 cases
(6%)
Others - 4 cases (8.5%)
Resolved by agreement - 29
cases(63%)Withdrawn
without agreement -
16 cases(34%)
Dismissed/ terminated - 3
cases(3%)
UK Office ofTelecommunications Adjudicator (OTA2)
Canada’s CRTC staff mediation, final offer arbitration and expedited hearings
Japan’s Telecommunications Business DisputeSettlement Commission
Mediation in regulatory process
Regulatory adjudication, arbitration and special tribunals
Service provider B
Service provider B
Service provider A
Service provider A
Arbitration panelArbitration panel
Wholesale agreement
Regulatory authority
Special tribunal
Courts
Law remits disputes to special tribunal (e.g., India, Solomon Islands, Fiji, Bahamas) Law authorises
regulator to resolve disputes
Agreement provides for arbitration (e.g., Egypt, Sudan)
Arbitration by law or licence(e.g., Bahrain, Egypt, Sudan)
Special appeal mechanisms (e.g., India, PNG, Solomon Islands)
Appeals and judicial review
Government Government of Fiji
Vodafone Vodafone Fiji
Telecom FijiTelecom Fiji FintelFintel
ATH
Vodafone
FNPF
Coping with fundamental reform
C&W
High Court injunction
Telecom operatorTelecom operator
Transit operatorTransit
operator
Transit operatorTransit
operator
Transit operatorTransit
operator
Transit operatorTransit
operator
x10
Destination Destination carrier
Destination Destination carrier
Destination Destination carrier
Destination Destination carrier
Destination Destination carrier
Destination Destination carrier
Destination Destination carrier
x100
Old shareholderNew shareholderMinority
Government shareholder
Expert:chairman, negotiator mediator
adjudicator
Indemnity
Handling complexity
Settlement committee
469 7th Avenue, Suite 419New York, NY 10018, USA
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