Between the Brazilian and European Arbitration: A study of the National Telecommunications Agency (ANATEL) and the Office of Communications (OFCOM)

Abstract

Purpose: The demand for arbitration as a dispute resolution is important due to the large volume of cases to be adjudicated at the Judiciary system and its lack of technical expertise to do so. The topic of alternative dispute resolution is clouded with debates of how far should it go before interfering in the core functions of the Judiciary. Thus, this paper seeks to support the use of arbitration in the Brazilian telecommunications sector, inspired by the experience of OFCOM.

Methodology/Approach/Design: The paper starts with a historical analysis on the institute of the arbitrage followed by its connection with the regulatory phenomenon in Brazil and Europe. The study format follows a comparative approach by identifying the main characteristics of arbitration in both Brazilian and European telecommunications models.

Results: One of the duties of the regulatory agencies is precisely the solution of conflicts between players in the sector at the administrative level. When analyzing the forms of dispute resolution in the European Union, a peculiar behavior can be highlighted. In major disputes that occur on the continent, it is more common to use arbitration than the judiciary. In fact, arbitration can be used by ANATEL as an important tool to ensure a broad, free and fair competition between providers of telecommunications services, as it dodges the slowness of the judiciary and the possibility of sham litigations, enabling the rapid adoption of a decision that often affects the rights of a great number of users of telecommunications services. The high prestige enjoyed by these methods of dispute resolution pays homage to their characteristic of being a neutral forum positioned far from a regulatory agency of a specific country and close to referees chosen by common agreement, or even connected to international institutions that provide the arbitration services in commercial disputes.