Communications Providers Independent ADR Service

Adjudication Procedure

THE COMMUNICATIONS PROVIDERS ADR SCHEME

1 Introduction

1.1 Where any agreement, submission or reference provides for adjudication, or where the parties opt voluntarily to use adjudication as an alternative to litigation, the parties shall be taken to have agreed that adjudication will be conducted in accordance with the Communication Providers ADR Service Adjudication Procedure (the procedure).

2 Scope of the procedure

2.1 The procedure allows parties to use adjudication as a method of resolving disputes within the communications sectors. It also allows parties who are already in dispute to use adjudication voluntarily by completing an Agreement to Adjudicate.

2.2 The procedure is intended to allow the parties to present their case without the need for legal representation, although parties may be represented by a third party of their choosing, at their own expense if any, and after notification to the other party or parties to the dispute.

2.3 The adjudicator will have the right to call for additional information on any relevant matter, from any party, in writing or orally, giving full reasons for the request, if he / she deems it necessary to do so in order to reach a resolution of the dispute in accordance with the law and any relevant regulation by a statutory enforcement authority, prior direction by the statutory enforcement authority or any relevant codes of practice. Where the adjudicator requests further information he / she must give full reasons for doing so, and the parties may challenge the request if they feel the additional information contains commercially sensitive information that is not relevant to the dispute.

2.4 Unless under contract, parties may choose to take advantage of the procedure in any dispute to which it may apply and, unless unable to do so due to the later intervention of a statutory enforcement authority, they will be bound by the adjudicator’s Decision.

3 Types of dispute to which the procedure applies

3.1 The procedure has been designed to resolve disputes within the communications sectors following the failure of commercial negotiations between the parties.

3.2 Application for adjudication under the procedure in respect of a dispute does not relieve any party from any obligation it may have to settle with the other party or parties any issues which are agreed and are not in dispute.

4 The adjudication procedures

4.1 Two procedures will apply for adjudication – a quick online adjudication and a more formal procedure including oral information sessions with the adjudicator, if required, for more complex cases. The parties should refer to the Guidance Notes for further information and guidance on which procedure to follow at the outset. If the chosen procedure becomes unsuitable the parties and the adjudicator (if appointed at that stage in proceedings) can agree to change procedures during the adjudication.

4.2 In either circumstance applications for adjudication must be made on the designated application form, available from DRS-CIArb, 12 Bloomsbury Square, London, WC1A 2LP. Telephone 020-7421-7444; Fax 020-7404-4023; email info@drs-ciarb.com. Application forms can also be downloaded from www.communications-adr.com, where they can be registered online if required.

4.3 DRS-CIArb (the administrator) will contact the parties within 3 working days of receipt of the application with details of a selection of adjudicators from its IP & Electronic Media Panel. The parties shall endeavour to agree an adjudicator from the list supplied within five working days of the date that the list is supplied by the administrator. If the parties agree on an adjudicator, they shall notify the administrator, which will make the appointment as directed by the parties within 3 working days of receipt of such notification. If the parties fail to notify the administrator of their choice of adjudicator within five working days of the date that the list is supplied by the administrator, the administrator will appoint an adjudicator from the relevant panel within 3 working days thereafter.

4.4 The parties can elect for the adjudication to proceed under the online procedure which is designed to offer quick and cost-effective decisions where the matters are not too complex. If this option is selected on the application form the parties shall each submit a fee of £150 plus VAT to the administrator. This fee covers the administrator’s administration charge of £300 plus VAT. If the claim is upheld, the losing party will reimburse the party making the application with its £150 fee.

4.5 If the parties elect to use the full adjudication process they shall each submit a fee of £250 plus VAT to the administrator. This fee covers the administrator’s administration charge of £500 plus VAT.

4.6 The adjudicator’s fee for an online adjudication is set at £750 plus VAT. For a full adjudication the adjudicator’s fee is set at £220 per hour plus VAT. Oral sessions will be limited to 35 hours, unless otherwise agreed, and the adjudicator may recover reasonable incidental expenses. These costs, including the cost of any oral sessions, if any take place; will be the joint responsibility of the parties. The parties will jointly share the costs of providing hearing rooms and refreshments, and are reminded that the administrator has modern hearing facilities in Central London.

5 The online adjudication procedure

5.1 In making an application under the online adjudication procedure the claimant will submit their application and full claim with supporting information, electronically, using the online application form. This submission is limited to an equivalent amount of text to 4 pages of A4 single line type.

5.2 Upon receipt of the application and full claim the administrator will forward a copy to the other party (the respondent) who will be given 5 working days by the administrator to set out their defence to claim. The defence to claim must be submitted to the administrator and copied (at the same time as the defence is sent to the administrator) to the claimant in the form of a PDF Read-Only document, or other agreed method, and must be limited to an equivalent amount of text to 4 pages of A4 single line type.

5.3. Each party will be given access to the other party’s case and a further period of 5 working days will be provided to the parties for their final submissions.

5.4 No extensions of time are allowed under the online adjudication process, unless by agreement of each party, such agreement to be made at the time of the parties deciding whether to change to the full adjudication process.

5.4 The adjudicator will make his / her Decision within 5 working days of receipt of the final case papers from the administrator. The administrator will publish the Decision to the parties electronically in the form of a PDF Read-Only document, or by another agreed method.

6 The full adjudication procedure

6.1 Where the parties elect not to use the online adjudication procedure, the claimant will submit to the administrator, in duplicate, its full claim with supporting information, accompanied by the relevant registration fee.

6.2 Upon receipt of the claim from the administrator, the respondent will have 7 working days in which to submit, in duplicate, its defence to claim to the administrator.

6.3 Upon receipt of the respondent’s defence from the administrator, both parties shall have 7 working days to submit final comments to the administrator. The parties are free to negotiate and to engage in correspondence between themselves and either copy or not copy to the administrator during this 7 working day period. All correspondence or comments copied to the administrator will form part of the case file submitted to the adjudicator.

6.4 Upon receipt of the final comments from the parties, the administrator will forward the complete case file to the adjudicator for consideration. The adjudicator will have 14 working days in which to consider the papers and either make a Decision or call for further information, which may involve one or more oral session(s).

6.5 If the adjudicator requires more information at the end of the 14-day period referred to in 6.4 above, the request for information and any subsequent oral sessions will delay publication of the Decision by no more than 14 days, subject to the parties agreeing an extension.

6.6 The adjudicator is at liberty to meet with the parties jointly or separately and make any necessary enquiries, but must tell the other party / parties about those enquiries and allow them to comment on the findings.

6.7 In accordance with 2.3, if the adjudicator requires further information in order to reach a Decision, he / she may require the provision of any further documents, information or submissions that he / she considers would assist him / her in making their Decision and will use the most timely and appropriate form of written or verbal communication to seek and obtain such information. If the party or parties do not make that additional information available within the time prescribed by the adjudicator, the adjudicator may proceed on the basis only of the information already before him / her.

6.8 Within 3 working days of receipt of the adjudicator’s reasoned Decision, the administrator will publish the Decision to the parties.

6.9 The administrator will send the Decision to each party by email, following documented security protocols and the Decision will be sent in the form of a PDF Read-Only document or by another agreed method. If either party wishes a hard copy to be sent, it may do so by request to the administrator using the most convenient route or by indicating this in the appropriate place on the original application form.

7 The Decision

7.1 Any individual Decision made under the procedure is binding on all on the parties to that Decision unless reversed by a decision of a statutory enforcement authority. The parties may only refer an individual Decision to statutory enforcement authority within three calendar months of the date of the Decision. All Decisions will include full reasons for reaching the Decision.

7.2 Any payment indicated in the Decision must be made directly between the parties within 30 days, unless otherwise agreed, of its publication and not through the adjudicator or the administrator.

8 Adjudicator’s powers

8.1 Any adjudicator appointed shall be and remain at all times during the adjudication independent of the parties. In considering the parties’ case the adjudicator shall have regard to the legal position, any regulatory provisions and / or prior regulatory decisions and also any relevant Codes of Practice.

8.2 Any adjudicator should also act expeditiously, and in a way that provides a fair and reasonable Decision in resolution of the dispute.

8.3 The adjudicator may, in his / her absolute discretion, refuse to consider documents or other information not submitted within timescales set down by the procedure or given by him / her in direction to the parties.

8.4 The adjudicator shall have full jurisdiction to consider whether any claim made falls within his / her powers to determine in accordance with this procedure.

9 Adjudication costs

9.1 The costs of adjudication are dealt with in sections 4.4, 4.5 and 4.6.

9.2 In addition, each party shall bear its own costs of preparing and submitting its case and of attending any hearing. No legal action may be brought to recover these costs.

9.3 No legal proceedings may be brought by one party against the other for recovery of costs incurred during the adjudication.

10 Confidentiality

10.1 No party involved in any adjudication under the procedure, nor the administrator or the adjudicator shall disclose details of the proceedings, Decision, and reasons for the Decision to any stranger to the case.

10.2 Notwithstanding 10.1, all parties, in agreeing to the resolution of disputes under the procedure, give permission to the administrator to gather, retain and publish statistical and other information on such disputes whilst preserving the anonymity of parties.

11 Miscellaneous

11.1 If necessary the administrator shall appoint a substitute adjudicator and shall notify the parties accordingly.

11.2 The procedure is subject to revision and amendment from time to time by negotiation between the administrator and the United Kingdom Competitive Telecommunications Association, who are the joint sponsors of this procedure. The edition of the procedure in force at the time the dispute arises shall govern any adjudication under the procedure.

12 Administrator’s Immunity

12.1 The administrator shall not be liable for anything done or omitted in the nomination or appointment of an adjudicator unless the act or omission is shown to have been in bad faith. By accepting the procedures the parties hereby indemnify the administrator against any possible legal action brought by any third party, arising from the discharge of the aforesaid functions, unless the act or omission is shown to have been in bad faith.

12.2 The administrator shall not be liable, by reason of having nominated or appointed the adjudicator, for anything done or omitted by the adjudicator (or his employees or agents) in the discharge or purported discharge of his functions as adjudicator. By accepting the procedure the parties hereby agree to indemnify the administrator against any possible legal action brought by any third party, arising from the discharge of the aforesaid functions, unless the act or omission is shown to have been in bad faith.

13 Immunity of the adjudicator

13.1 The parties agree that they will indemnify and save from harm the adjudicator from all costs or claims which they may now have, or might have in the future respecting, or arising from, or in connection with this adjudication.

13.2 The adjudicator shall not be liable for anything done or omitted in the discharge or purported discharge of the functions of adjudicator (whether in negligence or otherwise) unless the act or omission is in bad faith and any employee or agent of the adjudicator shall be similarly protected from liability.

14 Reservation of service

14.1 The administrator reserves the right to decline an individual request to appoint an adjudicator.

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