MODULE: 5

1. DISPUTE RESOLUTION MODULE: 5

2. Failure to resolve disputes Delay the introduction of new services and infrastructure Block or reduce the flow of new capital Limit competition, leading to higher prices and lower service quality Retard liberalisation Topic 1 - About Disputes Module 5 – Page 7

3. Similar forces drive disputes Vital business interests are at stake Liberalisation means a more competitive environment Uncertainties and complexities relating to new technology and new markets Introducing competition undermines the established interests About Disputes Module 5 – Pages 7-8

4. Benefits of dispute resolution Investment opportunities Faster rates of growth in the telecommunications sector Favorable impacts on overall economic growth as people make better use of information at a lower average cost Social and educational benefits resulting from improved access to information Lower costs for business and consumers About Disputes Module 5 – Page 8

5. The Parties Carrier to carrier Carrier to consumer International disputes How Disputes Differ Module 5 – Page 9

6. The Issue Importance Complexity Policy Implications How Disputes Differ Module 5 – Page 9

7. APEC supports WTO Agreements on Basic Telecommunications APEC countries are signatories to the New York Convention of 1958 to support decisions in international commercial disputes A growing number are signatories to the Washington Agreement on settlement of capital investment disputes APEC Position

8. Cultures and Legal Systems APEC and Asia contain very different cultures, political systems, ideologies, legal systems When disputes cross borders, or transnational companies enter the local economy, these issues become relevant Topic 2 - Regional Context Module 5 – Page 11-15

9. Cultural influence on dispute resolution Not a strong tradition of using the law to resolve business disputes Long history of more consensual, mediated approaches to dispute resolution Thailand - Buddhist heritage Indonesia - religious leaders played important roles in the mediation of disputes. China and Japan also have histories that reflect a preference for mediated approaches. Regional Context

10. Different legal systems APEC countries have historically and locally derived system of laws: Japan (Germany and French influence) Korea (German and Japanese influence) Indonesia (Netherlands) Chinese Taipei (Japan) The Philippines (Spain, US) Regional Context

11. Cultural influences Islamic legal influence Socialist legal systems Hindu influence Buddhist influence Confucian influence Democratic influence Regional Context

12. Other Issues Decolonization Non-legal approach to business disputes Scarcity of Legal Skills Forces for convergence Recent trends Regional Context

13. Discussion Points What are three key strengths in your country that will reduce the number of disputes? What are two areas for improvement? Regional Context

14. Prevention of Disputes Improve the regulatory environment Improve the industry culture Topic 3 - Improving the Environment Module 5 – Page 16

15. Government role Legislation and policy Stimulators of productive change Improving the Environment Module 5 – Page 17

16. Opportunities for Regulators Consultative forums Publicizing innovative approaches to dispute resolution Sharing procedural precedents Building local resources Sector reviews Improving the Environment Module 5 – Page 17-19

17. Opportunities for Industry Participants Dispute clauses in contracts A partnering approach to dispute resolution Improving the Environment Module 5 – Page 19-20

18. Discussion Points Compare and contrast the preventative approaches in your country How effective are these in reducing disputes? Regional Context Module 5 – Page 21

19. The Techniques Alternative dispute resolution (ADR) Mediation and negotiation Regulatory adjudication Regulatory arbitration Court adjudication Arbitration TOPIC 4 - Dispute Resolution Techniques Module 5 – Page 22-23

20. The Life Cycle of a Dispute The “invisible step” Negative impacts Industry development is retarded Relationships are damaged Large costs to the economy and end users Possible counter measures Dispute Resolution Techniques

21. The Life Cycle of a Dispute Dispute Resolution Techniques Module 5 – Page 25

22. The Life Cycle of a Dispute Dispute Resolution Techniques Module 5 – Page 25

23. Dispute Resolution Techniques The Life Cycle of a Dispute Module 5 – Page 25

24. Definition Mediation is a process where the parties settle their own dispute with the help of a third party, the mediator. Topic 5 - Mediation Module 5 – Page 26

25. Advantages Saves time and cost The parties control the process Privacy Enforceability Right to further legal action More likely to preserve the relationship Mediation Module 5 – Pages 26-27

26. Conditions for success The parties are willing to cooperate and preserve their relationship Few parties are involved There are only a few issues There is an approximate balance of power The issues are not of critical importance to the business Mediation Module 5 – Page 27

27. Mediation is less likely to succeed if: There is a high level of mistrust or open hostility There are many parties and complex issues The issues relate to legal rights and their enforcement It is in the interests of one party to prolong the dispute Public interest is at stake There is a major power imbalance Mediation Module 5 – Page 27

28. Procedure Mediation Module 5 – Page 31

29. Procedure Mediation Module 5 – Page 31

30. Task In small groups: Consider the top five matters you would include in a Code of Conduct for Mediators, and Make a list of the skills you believe are important for Mediators to have to mediate interconnection disputes. Mediation Module 5 – Pages 33-36