Telecoms dispute resolution in Oman
Technology, Media & Telecoms Focus
Oman government established the Telecommunication Regulatory Authority ("TRA") under Sultani Decree No 30 of 2002 (“TRL”).
Law Update: Issue 358 - Technology, Media & Telecoms Edition
Ahmed Al BarwaniPartner, Head of Office - Oman
Abdelhaleem AhmedSenior Counsel, Head of Litigation - Oman
This article focuses on the mechanism and process relating to the settlement of disputes under the telecommunication laws and regulations in Oman given its specific nature. This article also focuses on how the practice taken by the Oman courts has been developed in relation to such disputes to ensure fairness and equality between the adjudicating parties taking into consideration the fact that this area of law is developing and remains, to some extent untested, given the continuous development in the telecommunication sector generally.
At the institutional level, the Oman government established the Telecommunication Regulatory Authority ("TRA") under Sultani Decree No 30 of 2002 (“TRL”) which has been entrusted, among other powers, to issue the laws and regulations that regulate the telecommunications sector as well as to put in place the legal framework for settling and resolving disputes as between TRA and licensees on the one hand and disputes among licensees on the other hand.
In order to achieve this and ensure that the interests of the TRA as well as the licensees, holding different type of licenses as set out in the TRL and its regulations, are fully protected the TRA enacted and introduced a number of regulations which are explained below in more detail.
A. Forum for Settling Disputes Between the TRA and Licensed Operators
The TRL provides an alternative forum for resolving disputes that may arise between the TRA and licensed operators. This forum is arbitration by a tribunal consisting of three arbitrators. The TRL provides that such arbitration proceedings are to be governed by the Oman’s Law of Arbitration in Civil and Commercial Disputes (SD 47/97) (“Law of Arbitration”).
It is worth noting that there are some important differences between the TRL and the Law of Arbitration in relation to the time for appointing arbitrators. If a dispute is to be adjudicated by a tribunal of three arbitrators, the Law of Arbitration gives the other party 30 days to nominate its arbitrator. The Law of Arbitration grants a similar period for the parties'-nominated arbitrators to appoint the tribunal's chairperson. Conversely, the TRL gives both parties only 14 days from the date of submission of notification of intention to refer the dispute to arbitration. The TRL grants a similar period for the two arbitrators to appoint the chairperson of the tribunal. The latter period is calculated from the date of receipt of notification of their appointment. This is an important difference that should be taken into consideration where a licensed operator contemplates initiating arbitration proceedings against the TRA.
B. Settlement of Disputes About Negotiation and Implementation of Access & Interconnection Agreements
The TRL tasked the TRA with issuing the rules and procedures for settling disputes regarding interconnection, co-location and access agreements. Such rules and regulations were issued by the Access & Interconnection Regulation issued by Decision No. 25/206 (“A&I Regulation”).
The A&I Regulation contains provisions for settling disputes during the negotiation stage and after entering into the access and interconnection (“A&I”) agreements. Pursuant to the A&I Regulation, either party to the negotiation of an A&I agreement may ask the TRA to issue a binding decision in the event that no A&I agreement is reached within three months from the commencement of the negotiations. For other disputes arising during the negotiation stage, the A&I Regulation gives the parties to the negotiation of an A&I agreement the right to agree that disputes between them should be settled by mediation within a period not exceeding 45 days from the date on which the provider of A&I services receives a reasonable request for providing the A&I services.
As regards disputes relating to the implementation of an A&I agreement, excluding billing disputes, the parties to an A&I agreement may agree to refer their disputes arising out of, and resulting from, the A&I agreement to mediation within 45 days from receiving written notification stating the basis of the dispute. The parties are required to notify the TRA of their agreement to refer their dispute to mediation and must appoint the mediator or the council of mediators within 15 days from the date of the agreement. The TRA plays an active role in appointing the mediator if the parties fail to agree on the mediator within the above mentioned period. In case no consensus is reached concerning the process for mediation within seven days from the appointment of the mediator, the TRA will determine the mediation process on behalf of the parties.
Billing disputes between the parties to an A&I agreement must be referred to an expert to be agreed between the parties. The TRA has the right to appoint the billing expert if the parties fail to agree on the expert within five days from receipt by the other party of notification of the details of the billing dispute.
Recommendations of the billing expert about resolving the dispute can be subject to objection before the TRA. Such objection, however, must be submitted to the TRA in writing within five days from receiving the expert’s recommendation.
The TRA is entrusted with resolving disputes between the parties to an A&I agreement pursuant to the provisions of the Dispute Resolution Regulation issued by Decision No. 44/2010 (“DR Regulations”), at the request of the parties in three instances. First, if there is no agreement between the parties to seek mediation. Second, if either party to the dispute objects to the mediator’s or the mediation council’s recommendation. Third and finally, if the dispute is not resolved by mediation.
C. Settlement of Disputes Between Licensees
Disputes between licensees are resolved using a different forum and process. The TRL provides that disputes between licensees in relation to interpretation of the TRL or interpretation of licensees’ mutual agreements shall first be referred to the TRA for determination. The TRL gives the TRA 90 days to issue a decision, as either disputing party has the right to refer the dispute for adjudication before the competent judicial authorities after the passage of this period. A decision issued by the TRA in the disputes between the licensees, although final and binding, are subject to challenge before the administrative circuit of the Omani judiciary.
The DR Regulation sets out the procedures for resolution of disputes between licensees, as well as the process for appealing decisions issued by the TRA. Pursuant to the DR Regulations, the disputing parties must seek to settle their dispute amicably before referring the dispute to the TRA. Within 14 days from the date of receiving a notice of dispute, the senior executives of both disputing parties must meet and attempt to reach a settlement. If no settlement is reached, the dispute must within 20 days of the original notice of dispute be escalated to a joint committee consisting of the chief executive officers of the disputing licensees, who must attempt to reach a settlement within 30 days from the date of the notice. The disputing parties may agree to extend the periods mentioned above.
If no settlement agreement is reached, the dispute may then be filed with the TRA. The DR Regulations annexes a specific form in which a dispute may be submitted to the TRA. Within 15 days of the filing of the dispute, the TRA will perform preliminary scrutiny of the case and decide whether the petitioning licensee has standing and whether the dispute should be dealt with administratively or should be decided upon pursuant to the DR Regulations. Once the foregoing is determined, the TRA will constitute a panel to hear the dispute.
The DR Regulations grant panels extensive powers, such as the discretion to: (i) introduce additional parties to the dispute or allow other parties join in the dispute; (ii) appoint an expert to provide an opinion; (iii) extend or shorten any period prescribed in the DR Regulations; (iv) require any party to take measures or refrain from any action until the end of the dispute; or (v) issue precautionary measures orders.
Arabic is the language of the dispute proceedings. The president of the panel may authorize the use of another language in all or part of the proceedings. However, in all cases the final order of the decision must be issued in Arabic language.
In limited circumstances, either party may appeal the panel’s decision by filing an appeal with the TRA within 30 days of being notified of the decision. The filing of an appeal does not automatically suspend the enforcement of the decision. However, the TRA’s appeal team may suspend enforcement of the decision if it deems that is necessary. If no decision is issued in the appeal within 30 days from the dated of filing, the decision issued by the panel is considered upheld.
In its capacity as a regulator, the TRA has been active in enforcing penalties in relation to any violations committed by licensees following issuance of verbal and written warnings given the impact such violation may have on the beneficiaries of the services.
The TRL, the A&I Regulation and the DR Regulations clearly provide comprehensive proceedings for settling disputes between the concerned parties within the telecommunications sector and prescribe specific rules with timelines that the parties must adhere to when initiating any proceedings. Nonetheless and given the continuous development in the technologies relating to telecommunication and the type of disputes presented to the TRA, the provisions of TRL, the A&I Regulation and the DR Regulations remain untested.
There are still arguments as to the enforceability and binding effect of the TRA decisions in relation to the disputes between the licensees when being looked at by the courts in Oman. The reason for this is that it is always the case that such decisions are challenged by one of the parties to the dispute. The Oman courts however, would take such decisions into consideration when considering the case and issuing its judgment. In a number of cases, an expert is appointed by the court to prepare his report which again, in addition to the TRA decision, will be taken into account by the court. Experts’ reports are generally technical or financial in nature and would assist the court determining specific points as requested by the court.
For further information, please contact Ahmed Al Barwani or Abdelhaleem A. Mohammed Ahmed.
Published in May 2023
