Adjudication in Japan [7.4.1]

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In Japan, mediation is directed at the expeditious resolution of disputes arising between telecommunications carriers through mutual concessions by both parties, and with the intervention of the Mediator of the Telecommunications Business Dispute Settlement Commission (TBDSC). The Mediator's function is to cooperate in seeking out points of agreement between the parties in dispute and, once such points are identified, working towards resolving the matter in line with mutually agreeable conditions.

In order to seek mediation, a party must first offer to enter into an agreement ( e.g ., an agreement concerning interconnection of telecommunications facilities). If: (i) the other party does not accede to negotiate; (ii) the parties fail to reach an agreement after negotiation; or (iii) negotiation between the parties has failed on the details of an agreement ( e.g ., the parties do not agree on the sums each will receive or pay), then they may file an application for TBDSC mediation.[1]

Disputes that are subject to TBDSC mediation may involve the following matters:[2]

  • interconnection of telecommunications facilities;
  • shared use of telecommunications facilities;
  • provision of wholesale telecommunications services;
  • installation/maintenance of telecommunications facilities for interconnection ( e.g. , transmission lines and collocation facilities);
  • utilization of land, and of buildings and other works fixed thereon ( e.g., station buildings, conduit lines, cable tunnels, and remote terminals) for interconnection;
  • provision of information for interconnection ( e.g. , the location, specifications, and condition of transmission line facilities; the location and condition of a station building; the amount allotted for interconnection costs, investigation expenses, construction costs, and the basis of calculation thereof);
  • entrustment of work related to the provision of telecommunications services ( e.g., billing to users and collection of charges, sales activities, and order administration agency);
  • utilization of facilities ( i.e., utilization by one party of the other party's facilities) for provision of services ( e.g ., user database, power supply and air conditioning for collocation facilities, closure, and dark fiber); and
  • operation of facilities ( i.e ., one party utilizes its own facilities, which affects the other party's interests) for provision of services (user database).

It should be noted, however, that even if a particular case falls within any of the previous categories of disputes, mediation will not be held if:[3] (i) there is serious confrontation between the parties, leaving no room for compromise ( e.g., when one party refuses mediation it is not possible to follow the mediation procedures); or (ii) when the filed application ostensibly seeks resolution of a dispute, but TBDSC finds that the aim of the mediation process is for an unjust purpose, which is regarded as a misuse of the mediation system ( e.g ., when the purpose of the application is: (i) not to seek resolution of a dispute but merely to cause a nuisance to the other party; (ii) to degrade the other party's public credibility; or (iii) to prolong resolution of a dispute).

Source: TBDSC, Handbook for Dispute Settlement Procedures. Fair Settlement of Disputes in the IT Era - Systems and Practical Business Methods for Smooth Operation of Telecommunications Business

ENDNOTES

[1] Such prerequisites are provided in Articles 154, paragraph 1 (regarding interconnection agreements) and 157, paragraph 1 (regarding the “conclusion of an agreement or contract stipulated in the applicable cabinet order as necessary for ensuring the smooth provision of telecommunications services”) of the Telecommunications Business Law (TBL). These requisites also apply, mutatis mutandis , under Article 156, paragraph 1and paragraph 2 of the TBL (agreements concerning sharing of telecommunications facilities and the provision of wholesale telecommunications services , respectively).

[2] TBDSC, Handbook for Dispute Settlement Procedures. Fair Settlement of Disputes in the IT Era - Systems and Practical Business Methods for Smooth Operation of Telecommunications Business - April 1, 2004, at p. 11-12. Available at www.soumu.go.jp/hunso/english/040401.html .

[3] Telecommunications Business Dispute Settlement Commission, Handbook for Dispute Settlement Procedures, at p. 12.

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