Joint Committee on The Draft Communications Bill Appendices to the Minutes of Evidence


APPENDIX 13

Memorandum submitted by Clifford Chance

  Please find enclosed our comments on the draft Communications Bill. We apologise for the lateness of our submission, however, we hope that the Joint Committee will consider our comments as part of its enquiry.

  Clifford Chance Limited Liability Partnership is a global law firm with 28 offices in 19 countries (including one associated office). We have extensive experience of advising communications and media clients on a range of M&A and commercial transactions and regulation in fixed and mobile telecoms, satellite, broadcasting and media and internet-related work in Europe, Asia and the US.

  We welcome the creation of a single regulator, OFCOM, and regulatory framework for both the communications and media industries. However, there are a number of respects in which the draft Communications Bill (the "draft Bill") could be improved in order to create a truly "world class" regulatory regime for the UK. In particular, there are a number of procedural issues which should be addressed in order to ensure that:

    —  the deregulatory thrust of the draft Bill (particularly with regard to media mergers) is not subverted by measures in other proposed legislation, such as the Enterprise Bill, currently before Parliament;

    —  OFCOM is required to exercise its powers in a transparent and prompt manner to assist the functioning of the market and benefit consumers;

    —  OFCOM is required to exercise its new powers to resolve certain commercial disputes between industry participants and to refer such disputes to mediation in an effective and appropriate manner;

    —  OFCOM is required to put in place appropriate procedural safeguards which apply irrespective of whether it is exercising its powers to enforce competition law or the conditions contained in the authorisations; and

    —  the appeals procedures which are put in place under the draft Bill are effective to adequately protect the interests of stakeholders and to provide the appropriate checks on the substantial powers which OFCOM will wield.

  We have limited the comments in our attached submission to these procedural aspects of the Draft Bill.

  We would be pleased to provide any further comments or clarification either in writing or at a public hearing.

June 2002

Attachment

1.  INTRODUCTION

  1.1  Clifford Chance Limited Liability Partnership is a law firm with 28 offices in 19 countries (including one associated office). We have extensive experience of advising communications and media clients on a range of M&A and commercial transactions and regulation in fixed and mobile telecoms, satellite, broadcasting and media and internet-related work in Europe, Asia and the US.

  1.2  We welcome the creation of a single regulator, OFCOM, and regulatory framework for both the communications and media industries. However, there are a number of respects in which the draft Communications Bill (the "draft Bill") could be improved in order to create a truly "world class" regulatory regime for the UK. In particular, there are a number of procedural issues which should be addressed in order to ensure that:

    —  the deregulatory thrust of the draft Bill (particularly with regard to media mergers) is not subverted by measures in other proposed legislation, such as the Enterprise Bill, currently before Parliament;

    —  OFCOM is required to exercise its powers in a transparent and prompt manner to assist the functioning of the market and benefit consumers;

    —  OFCOM is required to exercise its new powers to resolve certain commercial disputes between industry participants and to refer such disputes to mediation in an effective and appropriate manner;

    —  OFCOM is required to put in place appropriate procedural safeguards which apply irrespective of whether it is exercising its powers to enforce competition law or the conditions contained in the authorisations; and

    —  the appeals procedures which are put in place under the draft Bill are effective to adequately protect the interests of stakeholders and to provide the appropriate checks on the substantial powers which OFCOM will wield.

We have limited our comments below to these procedural aspects of the draft Bill.

2.  RELATIONSHIP BETWEEN OFCOM AND THE SECRETARIES OF STATE

  The draft Bill must be read in conjunction with the reforms of the competition and merger regime contained in the Enterprise Bill currently before Parliament. Whilst on the face of it, the draft Bill appears to be dropping restrictions on foreign ownership, in practice, the impact on media mergers will depend on the extent to which the residual powers for ministers to interfere in such areas as market investigations and newspaper mergers are exercised under the Enterprise Bill. We would encourage a co-ordinated review of these two important pieces of legislation in order to ensure that a new "patchwork quilt" of regulation is not created.

3.  OFCOM'S DEALINGS WITH ITS STAKEHOLDERS

  3.1  OFCOM will have a duty to "have regard" to the principle of transparency to the extent that it appears to them "to be relevant in the circumstances".[4] There are, however, as yet few indications as to how OFCOM will in fact make decisions and what safeguards will be put in place to ensure that such decisions are made transparently. [5]We consider that OFCOM should be required to develop guidelines as to the means by which it will make its inner workings transparent. The interests of the market will be best served by having a presumption in favour of disclosure except in relation to confidential business secrets, market-sensitive information or information the publication of which would be (in the narrow sense) contrary to the public interest to disclose. In particular, OFCOM should be required to make full minutes of OFCOM board meetings (subject to those provisos) available in a timely fashion.

  3.2  Secondly, OFCOM should be required to publish a set of promptness standards which have been accepted by those it regulates generally, and for which it can be held accountable. The Draft Bill appears to give OFCOM too much leeway in publishing and sticking to promptness standards and does not require that such standards be subject to prior public consultation. [6]

  3.3  Thirdly, OFCOM should be required to develop and publish a procedure by which it gives confidential guidance on regulatory issues that are crucial to possible commercial transactions (see also paragraph 4.5 below). The draft Bill should recognise that one of OFCOM's roles is to assist the proper functioning of the market, and a regulator that refuses to give guidance, particularly in areas where it has significant discretion, will impede the market.

OFCOM dispute resolution powers

  3.4  As a result of the new EC Framework Directive (02/21/EC)[7], the UK Government is required to grant OFCOM certain powers to resolve disputes between network operators and/or service providers arising in connection with obligations imposed under the new EC Communications Directives. [8]The Draft Bill does not currently contain any provisions in relation to the dispute resolution powers of OFCOM. Experience in the telecommunications industry to date indicates that such dispute resolution powers are likely to be used frequently by the new regulator. [9]

  3.5  There are potentially a wide variety of commercial disputes which may arise under the draft Bill (including requests for new forms of access to telecommunications and broadcasting networks, services and associated facilities (such as electronic program guides and conditional access systems)). Many of these disputes are likely to involve complex technological and commercial issues, however, OFCOM will (other than in exceptional circumstances) be required to issue a binding decision to resolve the dispute in the shortest possible timeframe and, in any case, within four months. [10]As such disputes will often be of significant value to the companies involved, OFCOM will be required to balance the need to ensure that disputes are resolved quickly with the need to ensure that the parties are granted an adequate opportunity to present their arguments and evidence.

  3.6  To meet the requirements of the EC Framework Directive, a structured process with appropriate procedural rules will have to be established. An arbitration system, based upon a "streamlined" version of the procedures in the London Court of International Arbitration, and other similar bodies, could serve as a workable model. In developing the process, a number of factors should be considered:

    —  The Arbitrator: There will need to be put in place a panel of dedicated arbitrators. As a general rule, an arbitrator should be appointed within one week of the filing of a dispute. The panel should consist of OFCOM officials with expertise in the relevant subject matter of the dispute who have been trained in arbitration techniques. The parties should have no say in the choice of arbitrator, although conflict issues will need to be considered in making any appointment. A single arbitrator should be responsible for managing and deciding any case; however, the rules should allow flexibility to appoint more than one arbitrator in large or complex cases. To ensure that all necessary information is available to the arbitrator, consideration should be given to providing him or her with specific powers to compel the parties to provide information within the required timeframe. [11]

    —  The Process: The arbitrator will need to be "master of the proceedings". His or her decisions should be guided by general rules, which should include the following:

      —  The arbitrator should have the authority to set the timetable for the case, to determine the quantum and nature of evidence to be presented. [12]

      —  Each party should be entitled to make a submission in support of its position, attaching any documents or evidence upon which it relies. At the discretion of the arbitrator, the parties should be able to make additional submissions. To ensure consistency with the principle set out in Article 6 of the European Convention on Human Rights (as incorporated into UK law by the Human Rights Act 1998), the parties should have the option to request an oral hearing. After the parties file their submissions, the arbitrator should (if necessary) engage in additional "fact finding".[13]

      —  The parties should have the option of being represented by counsel at any hearing. Prior to the hearing, the arbitrator should consult with the parties, to set general guidelines regarding the presentation of evidence.

      —  The Decision: As the EC Framework Directive requires OFCOM to specify the grounds for any decision[14], consideration should be given to using a form "decision", setting forth the facts relied upon, the weight accorded to the facts/arguments, and the arbitrator's reasoning. The arbitrators should receive special training in the drafting of decisions, to ensure that fully reasoned decisions are published.

  A potential timetable for such proceedings is set forth at Annex 1.

Power to refer disputes to mediation

  3.7  The EC Framework Directive also provides that the UK Government may make provision for OFCOM to decline to resolve a dispute through a binding decision where other mechanisms, including mediation, exist and would better contribute to resolution of the dispute in a timely manner in accordance with the regulatory objectives set out in the Framework Directive. [15]The UK Government will need to ensure that any procedure is both quick and effective as if, after four months, the dispute is not resolved (and has not been brought before the courts), either party will be entitled to refer the dispute back to OFCOM and OFCOM will be required to issue a binding decision to resolve the dispute in the shortest possible timeframe and, in any case, within four months. [16]

  3.8  It will be important to ensure that alternative dispute resolution ("ADR") mechanisms are utilised in all appropriate cases. To minimise the burden on OFCOM, disputes should automatically be referred to a statutory scheme, unless good cause is shown that ADR would not be useful. [17]The parties should be provided with a brief period to apply to the arbitrator to make such determination. [18]

  3.9  The scheme would require statutory mediation, similar to that promulgated under the FSA regulations. [19]It will be crucial to "incentivise" the parties to co-operate fully, to resolve the maximum number of disputes, and to reduce the issues to be decided under the dispute resolution mechanism. This could be accomplished in several ways:

    —  Choice of Mediator: A list of mediators with technical expertise, and recognised standing in the industry should be established. [20]

    —  Terms of Mediation Agreement: At the outset of the mediation, the parties would be required to sign a mediation agreement. Although a "standard" mediation agreement would provide the mediator with few powers in relation to the parties, the form agreement should provide the mediator with greater powers. [21]

    —  Participation by the Arbitrator: The OFCOM arbitrator should be invited to attend (some of) the mediation proceedings, in a consultative role. [22]Such involvement would have three advantages: first, it would provide a "carrot" for the parties to co-operate; second, it would provide a forum for the parties to question the arbitrator (and thus better assess the merits of their case); and third, it would educate the arbitrator about the dispute, in the event the dispute resolution mechanism is required. To ameliorate any potentially "chilling effect", the parties could be provided with advance notice of the arbitrator's presence (and the opportunity to be represented by counsel).

4.  PROCEDURAL SAFEGUARDS AND APPEALS

Procedural Safeguards

  4.1  While OFCOM has been heralded as a relatively soft and light regulatory tool, the incorporation of the robust provisions of the Competition Act 1998 and some of the more controversial proposals of the Enterprise Bill could lead to an equally tough, interventionist and potentially litigious regime in terms of regulation of competition in the communications sector.

  4.2  Clause 247(1) of the Draft Bill[23] implies that OFCOM will inherit the stringent powers of enforcement granted to the Director General of Fair Trading ("DGFT") under the Competition Act 1998, including the power to make dawn raids with and without a warrant. Under the Enterprise Bill, the additional powers granted to the Office of Fair Trading by the Enterprise Bill will also be granted to the Office of Telecommunications and presumably its successor, OFCOM, including Part IV of the Enterprise Bill (Market Investigations) and offences of supplying fake or misleading information. It would be helpful for the drafting of Clause 247 to clarify whether the additional powers set out in the Enterprise Bill will be granted to OFCOM, in addition to the existing powers in the Competition Act 1998.

  4.3  The drafting of Clause 247(1) creates some ambiguity in terms of procedural safeguards. Section 51 of the Competition Act 1998 gives the DGFT the power to make rules about procedural and other matters. Clause 247(1) of the draft Bill appears to exclude section 51 of the Competition Act 1998 from OFCOM's powers. However, it is not absolutely clear whether the effect of this is that OFCOM will not have the power to make its own rules, and if this is the case, whether the existing rules made by the DGFT to date (including the Competition Act 1998 (Director's rules) Order 2000[24], which set out various procedural safeguards eg access to the file under rule 14(5)) will be applicable to OFCOM. It may be worth redrafting Clause 247(1) to clarify this issue, as it is key to whether or not procedural safeguards are in place, or can, at least, be put in place in future by OFCOM.

  4.4  Beyond the Competition Act 1998 and the Director's rules, further procedural safeguards have been developed through the limited body of case law generated since the Competition Act 1998 entered into force on 1 March 2000 (eg burden of proof and human rights considerations in Napp Pharmaceutical Holdings Limited v Director General of Fair Trading[25]; procedural point on what constitutes an appealable "decision" in Bettercare Group Limited v Director General of Fair Trading[26]) and these principles will apply to OFCOM to the extent that it exercises its competition powers (as to all sectoral regulators).

  4.5  Where OFCOM decides to take action against contravention of authorisation conditions under clauses 74-81 of the draft Bill (rather than pursuant to its powers under the Competition Act 1998), there will be fewer procedural safeguards available to the affected parties. In particular:

    —  there is no requirement for OFCOM to grant affected parties reasonable access to the file (subject to the requirement to protect confidential information) where it takes enforcement action against contravention of conditions[27];

    —  there is no specific requirement for OFCOM to establish a public register of OFCOM decisions regarding enforcement action available on its Internet site which will provide timely access to OFCOM enforcement decisions[28]; and

    —  there is no provision for OFCOM to give formal guidance to companies which are concerned that their behaviour may unintentionally place them in breach of the authorisation conditions.

  Given that OFCOM may impose potentially large fines of up to 10 per cent of relevant turnover[29] or issue directions suspending or restricting the right of the affected company to carry on its business, we consider that that same procedural safeguards as are available under the Competition Act 1998 should be available to companies which are subject to investigation under the authorisation conditions.

  4.6  We would also submit that the draft Bill should recognise the fact that many of the enforcement investigations conducted by existing regulators are initiated at the request of third party complainants. Such complainants have legitimate interests which cannot generally be adequately protected through the courts. Adequate procedural safeguards should also be put in place to ensure that such complainants are, for example, granted access to the file and a right of appeal from an OFCOM decision not to pursue an investigation.

Appeals

  4.7  The Draft Bill will introduce two separate appeals procedures for the communications industry:

    —  a full appeal on the merits to the Competition Appeals Tribunal ("CAT") from certain decisions by OFCOM or the Secretary of State in relation to networks and services and rights of use of spectrum; [30]and

    —  a more limited right of appeal to the High Court "equivalent to judicial review" will be introduced at a later stage with respect to certain other OFCOM decisions (for example, content decisions).

  There will in addition be certain other appeal or referral processes. Although modification to authorisation conditions will no longer be subject to a separate right of referral to the Competition Commission, there may be scope for the DGFT or OFCOM to make a market investigation reference to the Competition Commission under Clause 125 of the Enterprise Bill. There may also be a residual role for judicial review before the High Court in relation to any OFCOM decisions which are not subject to a specific statutory right of appeal.

Appeals to the Competition Appeals Tribunal

  4.8  Under the EC Framework Directive, the UK Government is required to ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of OFCOM has the right of appeal against the decision to an appeal body that is independent of the parties involved. The UK Government is required to ensure that the appeal body has the appropriate expertise and is able to take the merits of the case into account. Pending the outcome of any such appeal, the decision of OFCOM must stand, unless the appeal body decides otherwise. [31]

  4.9  Under section 47 of the Competition Act 1998, third parties who want to bring an appeal must first apply to the DGFT or an equivalent regulator. The Enterprise Bill proposes to reform section 47 to make it easier for third parties to appeal by giving them a direct right of appeal to CAT. The appeal process to CAT against decisions by OFCOM under Part 2 of the Draft Bill or under the Wireless Telegraphy Acts 1949 and 1998 or section 84 of the Telecommunications Act 1984 and certain decisions of the Secretary of State will be in line with this process as ultimately revised by the Enterprise Bill.

  4.10  The President of the Competition Commission Appeals Tribunal has indicated[32] that CAT anticipates considerable growth in the volume of appeals once OFCOM is established. It would be prudent to ensure that the CAT and the proposed Competition Service are adequately staffed (in terms of both numbers and credentials) to ensure that the impressive performance of the Competition Commission Appeals Tribunal to date in terms of meeting time targets and handing down intelligent judgments is maintained.

Appeals to the High Court

  4.11  In aiming for a right of appeal "equivalent to judicial review", the Draft Bill will need to take care to ensure the provisions intended to be enacted fit with current court procedures. Under the existing appeal mechanism provided by section 46B of the Telecommunications Act 1984[33] against decisions of the Director General of Telecommunications, for example, there are tensions between the statutory appeal provisions and court rules. These mean that claimants do not enjoy some of the procedural advantages available to applicants for judicial review and diminish the value of the appeal mechanism to claimants.

  The present regime in section 46B of the Telecommunications Act 1984 only allows a 28-day period for an appeal against a relevant decision by the Director General of Telecommunications to be filed, as opposed to the long-stop period of 3-months available in judicial review[34], despite the fact that it appears to be the intention of section 46B(6)(b) to provide an identical time limit. Although section 46B(6)(b) provides for a 3-month period in which to appeal most decisions of the Director General of Telecommunications, this time period is subject to "such other period as may be specified by the rules of the court". This means that the 28 day period provided by the rules of court takes precedence over the 3-month statutory long-stop limit contained in section 46B of the Telecommunications Act 1984. [35]

  4.12  Given the similarity between the grounds of challenge provided by section 46B of the Telecommunications Act 1984 and those available in judicial review under CPR Part 54, it is anomalous that a shorter long-stop time limit for claims to be made should apply to the statutory appeal mechanism. We can see no reasonable justification for the distinction. If the draft Bill is to make provision for some appeals to be "equivalent to judicial review", we consider a mechanism should be found which will avoid this and similar anomalies. Under the present appeal mechanism, this might be avoided by deletion of the final words of section 46B(6)(b) of the Telecommunications Act 1984: "or within such other period as may be specified by rules of court". Changes to the relevant court rules might also be required.

  4.13  Secondly, there are differences between the permission requirements under the present section 46B appeal mechanism and those in judicial review, which are detrimental to claimants. A claimant applying for judicial review may ensure its permission application receives judicial consideration on more than one occasion where necessary. [36]However, the position under the procedure in section 46B of the Telecommunications Act 1984 is not as favourable. Claimants under section 46B of the Telecommunications Act 1984, whose applications for permission are considered in open court (but not those whose applications are considered on the papers) are entitled to judicial scrutiny of their application only once. [37]We consider this to be inequitable and unfair in that it differentiates not only between different classes of applicants under the same procedure but also between one sort of claimant under the statutory appeal and another under the procedure for judicial review, despite the significant similarities between them, apparently for no reason.

  4.14  In our submission, the appeal mechanism in the Communications Bill should seek to avoid these discrepancies in procedure, the result of which is to diminish the rights of claimants in material respects. If the Communications Bill is to provide an appeal which is "equivalent to judicial review", it must seek to ensure unintended discrepancies do not arise between its provisions and the court rules which mean that the statutory appeal provides a mechanism which, rather than equivalent to, is actually less favourable than judicial review.

Right to bring claims for damages

  4.15  The Enterprise Bill proposes the right for parties to bring damages claims for breach of competition law directly before CAT. [38]The same policy considerations clearly dictate that third party claims should be available in the context of breaches of competition law relating to communications. The draft Bill would benefit from more overt references to rights to such actions, to reflect the explicit damages provisions in the Enterprise Bill (as opposed to the Competition Act 1998) and to conform with the UK Government's stated desire to encourage private actions as a means of enforcing competition law.

  4.16  By contrast, where there is a contravention of the authorisation conditions, injured third parties will also have a right to bring a claim for damages for breach of statutory duty, however, such claims will be dealt with by the High Court rather than before the CAT. [39]We consider that the same body, the CAT, should deal with claims for compensation under both the Competition Act 1998 (as amended by the Enterprise Bill) and under the draft Bill. Given that the CAT will also hear certain appeals from OFCOM decisions, it seems clear that the CAT will have the appropriate expertise and experience to evaluate such claims for damages by third parties.

June 2002

Annex 1

Potential Timetable for Dispute Resolution Mechanism

  Week 0:    Dispute is filed

  Week 1-2:  Arbitrator fixes timetable in consultation with the parties

  Weeks 4-6:  Parties make submissions to the arbitrator

  Weeks 6-9:  Investigation by arbitrator; potential responding submissions by parties.

  Weeks 12-14:  Hearing (one to two days) [40]

  Weeks 14-16:  Decision

Annex 2

Interrelationship between potential ADR scheme and dispute resolution mechanism

<IMG SRC="876ap01.gif">


4   Clause 3(2)(a) of the Draft Bill. Back

5   The Office of Communications Act 2002 provides that OFCOM may make such other arrangements for regulating their own procedure, and such arrangements for regulating the procedure of the committees established by them, as they think fit (see Schedule, paragraph 15). Back

6   Clause 6 of the Draft Bill. Back

7   Articles 20 and 21 of the EC Framework Directive. Back

8   The EC Communications Directives are comprised of the EC Framework Directive (2002/21/EC); the Access Directive (2002/19/EC); the Authorisation Directive (2002/20/EC); the Universal Service Directive (2002/22/EC) and Directive 97/66/EC. Back

9   The Director General of Telecommunications was granted limited powers under the Telecommunications (Interconnection) Regulation 1997 (SI 1997 No. 2931) (which implemented the EC Interconnection Directive (97/33/EC)) to resolve disputes with regard to interconnection of telecommunications networks and certain co-location/facility sharing issues. Notwithstanding the limited scope of these powers, the Director General of Telecommunications has issued over 20 directions to resolve interconnection disputes since 1 January 1998. Back

10   Article 20(1) of the EC Framework Directive. Back

11   The EC Framework Directive specifically mandates that "[t]he member states concerned shall require that all parties co-operate fully with the national regulatory authority." A key area of co-operation will involve the provision of information. A potential means to achieve this end would be to grant the arbitrators powers similar to those provided by the PPP Arbiter scheme under the Greater London Authority Act 1999. Article 233 of the Act allows the arbiter to request all the information needed to discharge the functions imposed on him under the act. This is backed up by Article 234, which gives the arbiter the power (through the issue of a notice, or failing that recourse to court) to compel the parties to provide information, subject to the provision that noone may be compelled to provide documents which they would not be required to produce in civil proceedings. Back

12   The rules should be written so that the parties or the arbitrator could request an oral hearing if they think the matter is important enough to warrant one, otherwise a hearing would be dispensed with. Back

13   The rules should be flexible in terms of the nature of such fact-finding. For instance, the arbitrator could request additional documents or calculations (for example, in respect of interconnection pricing) from the parties, or issue questionnaires to the parties or their agents/employees. Back

14   Article 20(4) of the EC Framework Directive providers that the parties concerned shall be given a full statement of the reasons on which the decision of the national regulatory authority is based. Back

15   Article 20(2) of the EC Framework Directive. Back

16   Article 20(2) of the EC Framework Directive. Back

17   For instance, the parties may demonstrate that there are primarily "legal" or "regulatory" issues between them, which could only be decided by the regulator itself. Another ground might be that the parties had already been engaged in protracted negotiations, so that a mediation would be unlikely to break new ground. Back

18   A chart outlining the inter-relationship between the proposed ADR scheme and the dispute resolution mechanism is set fourth at Annex 2Back

19   Potentially, other forms of ADR could be made available. For instance, expert appraisal may be appropriate where the parties disagree on the technical viability of a proposal and the non-binding opinion of an expert may clarify issues. Back

20   Although there are a number of bodies, such as the Centre for Dispute Resolution (CEDR), ADR, Chartered Institute of Arbitrators or Academy of Experts, to which the mediation could be "outsourced", we are of the view that a carefully vetted list of experts would be able to more effectively resolve the type of disputes expected to be brought, which are highly technical in nature. In our experience, the respect accorded to the mediator, and his or her understanding of the underlying commercial issues in the dispute, can play a crucial role in the success of this process. Back

21   For instance, the mediator could be granted the authority to stop the mediation on a deadlock, and/or to issue a reprimand in the event the mediator determined that a party's full co-operation had not been received. Back

22   Generally, mediations are "without prejudice", in that the decision maker of any dispute is not made privy to the parties' confidential negotiations or settlement officers. As the mediator in this proposal would only participate in a consultative role the mediation would not become "with prejudice", unless the parties so agreed. The mediator would not learn the details the parties' negotiations, or any settlement offers, unless the parties chose to involve him/her. A more radical approach would be to involve the arbitrator more fundamentally in the negotiations. Such a scheme would resemble a form of ADR called "Mediation-Arbitration", where the mediator becomes the arbitrator of the dispute, in the event the mediation is unsuccessful. A similar scheme is currently used by the French telecoms regulator (the Authorite« de re«gulation des te«le«communications or ART. However, a more standard mediation scheme (whereby OFCOM would directly play only a consultative role) may be preferable, as it would reduce significantly the burden on the arbitrator during the ADR phase, and prevent OFCOM from being drawn into the mediation. Back

23   Clause 247 of the Draft Bill provides that "OFCM shall be entitled to carry out, concurrently with the Director General of Fair Trading, the functions of that Director under the provisions of Part 1 of the Competition Act 1998 (other than sections 38(1) to (6) and 51) . . ." Back

24   SI 2000 No. 293. Back

25   Competition Commission Appeal Tribunal, 8 August 2001. Back

26   Competition Commission Appeal Tribunal, 20 December 2001. Back

27   In contrast, in relation to enforcement action under the Competition Act such a right is set out in rule 14(5)(6) of the Competition Act 1998 (Director's rules) Order 2000. Back

28   Currently, enforcement decisions by the Director General of Telecommunications are only published on a (roughly) quarterly basis in the Office of Telecommunications' Competition Bulletin. By contrast, under rule 8 of Competition Act 1998 (Director's rules) Order 2000, decisions taken under the Competition Act 1998 (including decisions by the Director General of Telecommunications) are published promptly on the Public Register which is easily accessible on the Office of Fair Trading website. Back

29   See Clause 77 of the Draft Bill. Back

30   Clause 140 of the draft Bill. Back

31   Article 4 of the EC Framework Directive. Back

32   Speech of Sir Christopher Bellamy QC to CBI Competition Law Conference, 22 May 2002. Back

33   Introduced by r.6 of the Telecommunications (Appeal) Regulations 1999. Back

34   CPR Ord. 54 r.5(1)(b). Back

35   The relevant provision in section 46B(6) of the Telecommunications Act 1984 provides as follows: "(6) An Appeal under this section must be brought-(a) in respect of a decision made under section 16, without unreasonable delay and in any event not later than 42 days from the date on which the Secretary of State or the Director made his decision; (b) in respect of any other decision to which this section applies, without unreasonable delay and in any even not later than three months from the date on with the Secretary of State or the Director made his decision, or within such other period as may be specified by rules of court." (emphasis added) The applicable rules of court are contained in CRP 52 PD 17.1 to 17.4, which provide that appellants must file their notices of appeal within 28 days after the decision sought to be impugned has been made. Alternative provisions contained in CPR 52 PD 17.1(2) may assist to elongate the time limit in relation to 42-day appeals in relation to decisions under section 16 of the Telecommunications Act 1984 (see section 46B(6)(a) of the Telecommunications Act 1984). Back

36   An application for permission to apply for judicial review will usually be determined by the judge on the papers in the first instance. If permission is refused, a claimant may request that the decision is reconsidered at a hearing (CRP r.54.12(3)). If permission is considered by the court at an oral hearing in the first instance, a claimant may renew its application to the Court of Appeal (CRP r.52.15). Back

37   If a claimant's application is considered first on the papers, but refused, it is open for the application to be renewed in open court pursuant to CPR r.52.3(4). By contrast, where the claimant's permission application is dealt with in the first instance in court (which the Administrative Court informs us is its usual procedure for statutory appeals requiring permission), there is no right to renew the application if it is refused. See CPR 52 PD .4.8. Back

38   Clause 17 of the Enterprise Bill. Back

39   Clause 81 of the draft Bill. Back

40   This would not be mandatory, but either the parties or the arbitrator could "opt in" to holding on oral hearing if the matter is important and sufficiently complex enough to warrant one. Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2002
Prepared 5 August 2002