Regulatory Adjudication in Resolution of Disputes Vijaya Sampath Corporate Director & General Counsel TDSAT 29th October 2004

Raison d’etre Interconnection: inequitable contracts Conflicting economic interests Interconnection: inequitable contracts Competition inhibiting incumbent rights Pace of technological change Sharing of existing infrastructure Consumer related disputes Policy changes: foreign participation

Raison d’etre Regulatory assurances - change in license conditions - lowering/changing entry barriers for new entrants Fierce competitiveness in markets - new & changing relationships - deployment of new technologies - failure to fulfill contractual obligations Multiple roles of Government - ownership of equity & infrastructure - license fees, other charges and taxes - law maker - licensor

Dispute Resolution Techniques Court Adjudication: SC - Substantive questions of law - Interpretation of legislation - Appeal from regulatory adjudication Regulatory Adjudication: TDSAT - Technical and complex disputes - Policy related matters - Consistency and predictability ADR: Negotiation,mediation, conciliation, ombudsman, arbitration - Voluntary or contractual commitment - Disputes between private operators - Commercially focussed

Efficacy Drivers Spur economic growth Shift decision making Mitigate political risk Create enabling climate for investment Correct market imperfections Oversee transition from regulation to market mechanism Expedite dispute resolution

International Best Practices United States: - assistance of administrative law judges - other agencies may make submissions - AAA procedures for wireless industry (three tracks) Canada: - established criteria for reconsidering decisions on review - steering committee with participatory approach United Kingdom: - need to demonstrate attempts at alternate methods - decline to intervene if other mechanisms more appropriate Spain & France: - less likely to suspend decisions during review

International Best Practices Jordan: - potential litigants allowed choice of forums - commission may recommend arbitration as preferred choice - hire experts and recover costs from parties Saudi Arabia: - discretion to determine best mechanism Morocco/Botswana: - set standards & procedures for interconnection disputes - assistance of external international experts - power to revise agreements Malaysia - independent industry forum to develop codes & guidelines - consensus based approach

ADR Vs RA solution Reduces level of conflict: non adversarial Greater Flexibility Reduces level of conflict: non adversarial Non-binding and contractual Speedier, less expensive Misuse to gain information & prolong disputes Restructuring contracts, concessions, licenses Practical & commercial solution Process & Procedures May damage business relationship adversial Binding & final: accountability Slow but sure Misuse by “ gaming” process as response to competition Interpretative and judicial Policy related and legal rulings

Alternative Approaches Political or judicial review Higher transaction costs SMP Monopoly Confidentiality Form Authority License Regulatory Network externalities Vibrant institutional process Effective resolution EMP market economics Clarity Substance Consultative Agreement Financial High Tech

The way forward Access to international precedents Evaluation of economic costs Vs benefits to the sector Dealing with complexity and conflicts Better application of alterative techniques Objectivity in decision making Prevention as critical as resolution

Thank you