This section of the website provides a summary of how the Undertakings define a Dispute and the steps which would lead to a formal Adjudication. Full details are provided in Appendix 2 of the Undertakings.
Certain information about Disputes must be published on this website in line with the timetable agreed by the Competition Commission in 2008. This is the page where the information defined in the Undertakings would be published.
Currently, there is no Dispute-linked activity which requires any such publication.
Adjudication Scheme
The Adjudicator is the “back stop” to resolve Disputes between Arqiva and its customer base (actual or potential). A Dispute is said to occur when normal commercial negotiations have failed to reach an agreement.
The Undertakings state that a Dispute must arise from one of the following:
- Amendments to an Existing Transmission Agreement;
- New agreements for bundled Transmission Services (i.e. a combination of Network Access and Managed Transmission Services);
- New agreements for the provision of Network Access; and
- The sale of transmission assets.
If commercial negotiations in one of those areas fail, then the issue can be placed before the Adjudicator for Adjudication. In doing so the following needs to be provided:
- Clear evidence that commercial negotiations have failed (without this the Adjudicator may decline to look at the issue);
- The complainant should present their case succinctly and provide supporting evidence (The Notice of Adjudication).
On receipt of the Notice, the Adjudicator will inform the complainant within three working days whether or not they will Adjudicate the issue. If the Dispute is to be Adjudicated, the Adjudicator will seek such further information from the complainant, Arqiva and independent experts as they may need in order to reach a decision.
The Adjudicator will within seven working days publish a statement determining the Scope of the Dispute. Within 10 working days of the publication of the statement, the other party to the Dispute will provide a Notice of Reply containing their response to the Notice of Adjudication.
Unless agreed otherwise, the Adjudicator shall usually give their decision within 20 working days from the Notice of Reply. The Adjudicator may call for further information and make take information from other sources.
The Adjudicator will act as an expert, not a mediator, arbitrator or conciliator, and will determine the Dispute accordingly. The decision of the Adjudicator is final and binding on both parties. It should be noted that all parties are bound to confidentiality during this process. Subject to the provisions of paragraphs 26-34 of the Adjudication Scheme, the Adjudicator may publish previously confidential information.
Adjudication Process
Step 1: The Notice of Adjudication
The referring party submits a Notice of Adjudication to the Adjudicator. This should contain the:
- Nature and description of the Dispute;
- Details of the contract under which it arises;
- Copies of relevant documents;
- Details of where and when the Dispute has arisen;
- Nature of the redress sought; and
- Steps which have been taken to engage in normal commercial negotiations.
It is important that the Notice is as complete and clear as possible.
Step 2: Confirmation
The Adjudicator will confirm within three working days if they intends to Adjudicate the Dispute. They may decline if they consider that the Notice of Adjudication is incomplete or consider that insufficient effort has been made to resolve the issue through commercial negotionations. The Adjudicator may also decline if the Dispute is to be handled by Ofcom under Section 186 of the Communications Act 2003.
Step 3: Publication of Statement
Within seven working days from the receipt of the Notice the Adjudicator will publish a Statement determining the scope of the Dispute. The Statement will take into account representations for confidentiality.
Step 4: Notice of Reply
Within 10 working days of the publication of the Statement (Step 3), the responding party will give a Notice of Reply. This will contain their response and any supporting documents.
Step 5: Adjudication
The Adjudicator will consider the submissions and may request further information from the parties to the Dispute or take external advice. The Adjudicator will normally reach their decision within 20 working days of the Notice of Reply.
Step 6: Notification
Once a Decision is reached, this will be notified by the Adjudicator in writing to the parties including their reasons for reaching their Decision. The Decision is final and binding.
The Adjudication may resolve the matter finally or may provide the basis for renewed commercial negotiations.
A summary of the Dispute and the Adjudication will be published.