Drafting Commercial Contracts for the Telecoms Sector

Course overview

The Telecommunications industry is a highly regulated and technical sector. To understand the key challenges of negotiating and drafting effective and watertight contracts on an international level is complex, to say the very least. These contracts can be difficult for even the most well equipped in-house lawyer and more often it is not the lawyer in the driving seat. Commercial managers from all areas of the telecommunications industry are leading negotiations, drafting and managing key contracts on a daily basis. It is essential that both legal counsel and commercial executives not only possess the key skills and tactics to create a win:win scenario but also the knowledge to ensure that the agreements are within the laws and regulations. The alternative is the exposure of the organisation to unnecessary risks and potential costly disputes.

Falconbury have developed this unique three-day programme that looks at both elements of the process. Using practical exercises, industry examples and discussions, it will examine the key skills needed from both legal and commercial viewpoints and how they can be integrated.

The programme has been specifically designed for commercial managers and in-house counsel from all areas of the telecommunications sector. The programme consists of two modules; the first module focuses on negotiation skills, which includes case studies and practical exercises. The second module focuses on the understanding and drafting of contracts. In addition, the expert presenters will deliver some of the latest legal and regulatory developments which have a direct impact on your contracts.

By attending this seminar you will:

• Understand what it means to be an effective negotiator in telecoms
• Learn the skills of an advanced negotiator and develop the tools needed for negotiation preparation
• Familiarise yourself with the regulatory framework and other developments
• Explore the key terms of access and interconnection agreements
• Find out about the contractual elements of building networks
• Examine the legal framework for outsourcing communications and facilities management
• Hear about the rights you need to license to exploit content on mobiles
• Get-to-grips with consumer contracts and best practice
• Understand the key terms of joint ventures agreements
• Get up-to-date with competition laws and understand the effect they have on your agreements
• Grasp the impact of convergence
• And finally hear how to deal with disputes in telecoms contracts

Who should attend?

• Commercial and contract managers
• Business development managers
• Purchasing and procurement managers
• In-house counsel
• Heads of legal departments
• Legal advisors
• Licensing counsel
• Legal advisors
• Patent, IP, trademarks or licensing counsel

Programme - Day 1

MODULE 1 – Contract negotiation skills

Welcome and introduction

• What it means to be an effective negotiator in telecoms
• Skills of an advanced negotiator
• Planning tools
• Key levels of negotiations
• Options for objectives – Slicing the pie or expanding the pie
• Creating value
• Identifying your objectives and strategy
• Strategy variables – BATNA and ZOPA

PRACTICAL EXERCISE: Negotiation simulation 1
Participants will work in groups on a negotiation simulation based on a telecoms case study to illustrate key challenges, tips and techniques of effective negotiation. This will illustrate the practical considerations and generate constructive feedback from our expert presenter.

Identifying your natural negotiating style

• Practical exercise
• Recognising your preference and others
• Impact of different styles
• When to apply different styles

Pre-negotiation tools for preparation

• Frames for a gain
• The Issue Map
• Offers

Negotiating behavioural skills and building trust

• Telling
• Probing
• Listening
• Identifying your criteria for trust and the other party’s

PRACTICAL EXERCISE: Negotiation simulation 2
Participants will return to work in groups on the second stage of the negotiation simulation based on a telecoms case study to illustrate key challenges, tips and techniques of effective negotiation. This will illustrate the practical issues and generate constructive feedback from our expert presenter

Preparing action plans

Programme - Day 2

MODULE 2 – Drafting and understanding agreements for the telecoms industry

Introduction

The ‘New Regulatory Framework’ and UK developments

• Rights to supply networks, services and equipment
• General obligations and specific requirements
• Complaints and complaining
• Issues of enforcement

Content agreements in the mobile sector

• What rights do you need to license to exploit content on mobile?
• How do you define the technology?
• What are likely to be the contentious issues in negotiations?
• What law, regulations and codes of practice apply to content when it is exploited on mobile?

Building networks: Code powers, wayleaves and infrastructure sharing

• Obtaining and enforcing code pow
• Issues of land law
• Obligations to facility share
• Negotiating LLU

PRACTICAL WORKSHOP – Doing deals: drafting joint venture agreements

• Key business factors and objectives
• Pre contract agreements
• Confidentiality agreements
• The role of the partners
• Exclusivity provisions
• Choice of law

Outsourcing and facilities management in the communications field

• Defining the scope of services
• Penalties and incentives – encouraging the supplier to do better
• Resolving agreements to agree in the context of change control, technology refresh and other difficult areas
• Limiting liability – can consequential loss always be excluded?
• Mandatory injunctions – if a supplier refuses to perform, can the customer obtain an injunction compelling observance of the contract

Access and interconnection agreements

• Why are access and interconnection important?
• The regulatory regime
• Key issues in today’s markets
• How will the markets develop?

Programme - Day 3

Introduction

Consumer contracts and best practice

• Consumer contracts: an overview of the basics
• Telecoms services: some specifics
• There are consumer terms and consumer terms – just what is best practice?
• Beyond terms and conditions – selling to consumers
• Regulatory reform, reforming consumer protection: just too much law?

The impact of convergence

• Definition of services supplied – how to define the relevant services?
• SLAs, performance, penalty issues – best efforts; time to start solving v time for resolving
• Multiple service providers – liability issues
• Scope of non-competes

PRACTICAL WORKSHOP SESSION – The application of competition law
Delegates will be given a fictional case study to consider in groups and then discuss. This will cover telecoms/regulatory and general EU competition rules. Articles 81 and 82 of the Treaty of Rome including:

• Refusals to deal
• Pricing issues
• Discrimination
• Tying
• Bundling and other constraints on conduct caused by dominance

Conditions for licensing of telecom and broadcasting services

• Authorisation v license
• Who is the dominant player
• Codes of Conduct/Conditions of Entitlement
• Use of spectrum
• Privacy v piracy
• Liability for user-generated content

Submarine cables – Legal issues
• Legal issues of undersea fiberoptic cables
• Agreements for building and maintenance
• Agreements for selling capacity on them

Dealing with disputes in telecoms contracts

• Drafting arbitration clauses
• Drafting ADR clauses
• Arbitration v mediation
• Other methods of dispute resolution for disputes in telecoms agreements

Close of Seminar

The expert faculty

Quentin Archer is a Partner at Lovells, he has advised on the IT aspects of corporate acquisitions, many large system development contracts, outsourcing projects and numerous other transactions involving software licensing, hardware sale, facilities management, telecommunications, maintenance, leasing, and defence contracts. He has also been involved on many contractual disputes in the computer field as well as cases involving copyright infringement, breach of confidence, antitrust claims and passing off.

Rob Bratby is a Partner in the Media, Communications and Technology Group of Olswang in London. Rob specialises in advising on corporate, commercial and telecoms regulatory matters and in particular complex matters requiring the co-ordination of all three areas of law including advising on mergers, acquisitions, IT and BPO outsourcing transactions, interconnection, roaming, broadcast and transmission arrangements, policy development, compliance and disputes before regulators including OFCOM and the European Commission.

Mike Conradi is Commercial Technology Partner at Kemp Little LLP in London. He is the author of the Telecommunications chapter in the first edition of PLC’s E-Commercial Practice Manual, and the co-author of their practice note on audio-visual media services. He has also written many other articles on topics including submarine cables, telecoms regulation, click fraud, VoIP, data protection and IT service agreements. Mike joined Kemp Little in August 2006 having previously been head of the technology practice at Stephenson Harwood. Prior to this he worked for Baker & McKenzie both in London and Sydney.

Steve Holmes is a Partner in the IT/Communications department at Baker & McKenzie in London. Recommended as an “up and coming lawyer” in Chambers and Partners, Steve has extensive experience in advising companies operating using mobile and on-line platforms. He advises clients in this sector on a broad range of issues, including content procurement, e-commerce, broadcast, regulatory, intellectual property and technology advice.

Ann La France is European Partner of Squire Sanders based in London and Brussels. Where she is coordinator of the firm’s European communications law and data privacy practice. Drawing from more than 20 years of industry experience in Europe and the Americas, Ann advises clients on regulation and competition law, advocacy and dispute resolution, merger control, and general commercial and corporate law. Ann served as chief international
counsel of MCI Communications Corp. (now Verizon) from 1996 to 2003.

Arun Singh, OBE, FRSA, is an international lawyer at Grundberg Mocatta Rakison LLP. He was formerly a partner and Head of International Commercial Law at KPMGLegal. Arun is cited and ranked in Chambers Guide of the World’s Leading Lawyers. He concentrates on international investment, joint ventures, licensing of technology, research and development, M&A, energy, outsourcing and corporate governance in developed and emerging markets.
Arun has taught in the USA, France, Denmark, Thailand, Japan, the UK, Israel, Egypt, Sweden, Portugal , Russia, Malaysia and Japan. His work for clients such as Ericsson, Orange, BT, Motorola, Vodafone, BA, BP, Diageo, and KPMG includes working with international lawyers and managers on issues of substantive law and skills training.

Susan Singleton is a solicitor with her own London firm, Singletons, which specialises in intellectual property law, competition law, Internet law and general commercial law. Articled at Nabarro Nathanson, she joined Slaughter and May’s EC/Competition Law Department on qualifying in 1985, moving to Bristows in March 1988, where she remained until founding her own firm in 1994. Since then she had advised over 410 clients. According to the Chambers and Partners Legal Directory she is one of the UK’s leading IT Lawyers. In 2002 she acted for the claimant in the first damages action for breach of the EU competition rules to come before the English courts Arkin v Borchard and Others.

Ian Walden is Head of the Institute of Computer and communications Law and Associate Director of the Centre for Commercial Law Studies, Queen Mary, University of London. Ian has been involved in law reform projects for the World Bank, the European Commission, UNCTAD and the European Bank of Reconstruction and Development, as well as for a number of individual states. In 1995-96, Ian was seconded to the European Commission, as a National Expert in electronic commerce law, and he is a member of the Legal Advisory Board to the Information Society Directorate-General of the European Commission.

Rhys Williams is a partner within the Communications Group of Bird & Bird in London. He focuses on providing commercial advice to clients ranging from entrepreneurial start-ups to major multi-national corporations, fixed line and wireless network operators, service providers and resellers. He has particular experience in regulation and data protection and privacy.

Past delegates’ comments

This course was just what a lawyer (in-house) needs to attend in order to have a general overview about contracting techniques in the telecom sector

Jean Helou, Head of Legal Affairs Department, Faldete Telecommunications SAL, Lebanon

Good content, amazing presentations, professional speakers

Alexander Gotsulenko, Head of Contract Work Unit, KYIVSTAR GSM, Ukraine

The course was useful for me personally. Content, presentation and speakers are
very professional

Natalia Kochneva, Senior Commercial Project Manager of Sales, Nokia SIEMENS Networks, Russia

Excellent content and speakers overall. I liked the academic as well as the practical aspects. This will definitely assist me for the future

Brian Myrie, Legal Counsel, KeyTech Ltd, Bermuda

Great course! You’re providing education in an area where good courses are really scarce

Heikki Raappana, Contract Manager, TDC Oy, Finland

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Delegates who attended this course also went on the following courses:

Client portfolio

Our client portfolio for this course includes the following companies:

ADVA Optical Networking	Hugh James Solicitors	SKYPE
Antenna TV SA	KYIVSTAR GSM	SRI LANKA TELECOM LTD
Bakcell LLC	KeyTech Ltd	Sicap AG
Baker Mckenzie	LCDC sa	Sotelma (Mali Telecoms Company)
Bird & Bird	Lovells LLP	Squire Sanders
COMIUM SL LTD	MCel	Steptoe & Johnson
COMMISSION FOR COMMUNICATIONS REGULATION	Microsoft	TDC Oy
Cameroon Telecommunications	Moldcell	TM International Berhad
Communication & IT Commission (CITC)	Nigerian Communications Commission	TURKCELL
Deutsche Bank AG London	Nigerian Communications Satellite Ltd	Telecommunications Services of Trinidad & Tobago Ltd
Dickinson Dees LLP	Nokia SIEMENS Networks	Telekom Srbija AD
Emblaze Mobile Ltd	Now Training Ltd	Telenor ASA
Ericsson Nikola Tesla dd	O2 COMMUNICATIONS	Vanco
Faldete Telecommunications SAL	Olswang	Vodafone Panaphone
Go Plc	SCALADO AB

Continuing professional development

Solicitors Regulation Authority

This course is accredited for 18.00 CPD hours (CPD reference CSC/FALI).

General Council of the Bar

This course is accredited for 18.00 CPD hours.