Dispute Resolution: Adjudication or Regulation?

Abstract

To address situations where commercial negotiations about access and interconnection fail, the Common Regulatory Framework requires national regulatory authorities (NRAs) to have power to resolve disputes between providers. The NRA can impose proportionate obligations. Describing dispute resolution as either a form of regulation in its own right or as simple adjudication is likely to mislead without some analysis of what is meant. There may be a tendency, when the NRA is resolving a dispute, to reflect an interventionist regulatory approach but there are markets that have effective competition and in which the regulator may properly tend towards resolving a dispute towards the adjudication end of the spectrum with a less interventionist approach. This paper reflects on principles that have been applied in the UK and on experience in appeals to and beyond the Competition Appeal Tribunal. Because the task of judges is to tackle the grounds of appeal raised before them, courts do not provide a comprehensive guide to NRAs as to how to handle the wide range of issues that can arise. The UK Supreme Court has emphasised the need for interconnection terms to be consistent with the objectives in Article 8 of the Framework Directive and, within boundaries set by Article 8, for national contract law is to be applied.