Issue 6 2019

66 CORPORATE VISION / Issue 6 2019 , Don’t wait until you hear the drums: How to prepare for a dispute in the telecoms sector Seeing a corporate dispute rumble into being is a nightmare for many a director and in-house coun- sel. The complexity and potential fallout of disputes make for a headache for many, but simple measures can mitigate the fallout and help you prepare for the worst. Focusing on the telecoms sector, we will examine just what you can do, and how, to manage a dispute of this size. The telecoms sector is one which continues to see plenty of growth, particularly in emerging markets. Cross-border joint ventures and transactions also continue apace. Such growth invariably leads to disputes, often complex and high-value in nature. One recent example is the first-ever decision by a five-member ICC tribunal to award a Portuguese telecoms company over US$650 million in a dispute with fellow sharehold- ers in Angola’s largest telecoms company. These are substantial figures, and recent headlines suggest that the deployment of 5G connectivity will likely result in only more disputes. With the above in mind, how can companies ensure that they are prepared for a fight? Anticipate the dispute It should go without saying, but familiarity with the contracts which your company is party to is of paramount importance: it en- sures that risks can be identified early and costly disputes avoid- ed, or at least mitigated. Proac- tively considering your contracts will be far more beneficial than hurriedly flicking through them once a claim has been issued. A pre-emptive review by outside counsel or in-house lawyers not involved in the initial drafting may also be worthwhile, as they may identify risks not previously considered and should, based on previous experience and knowl- edge of case law, be able to advise as to how potential claims may best be approached. Consider your document management policies and disclosure If you are developing a document retention policy after a dispute arises, it is too late. Think now about what you do and do not want to keep, and what you may have to disclose in the event of a dispute – assume a dispute might well happen and act accordingly: • identify those involved in a deal and ensure relevant communications/documents are preserved and easily accessible; • try to ensure that relevant employees have an ongoing obligation to assist with evidence after they leave; • think before firing employ- ees with knowledge of the dispute – they may go to the other side; and • keep records of oral agreements, meetings and telephone conversations. Once a dispute appears likely, usual document retention/deten- tion policies must be suspended and all relevant documents pre- served, including meeting notes, notes of telephone calls, etc. If you are unsure, in-house and external counsel are best-placed to advise on this. Whatever you do, don’t forget privilege: restrict communications to persons in the company likely to be covered by litigation privi- lege, and be careful with board minutes, as these are unlikely to be privileged per se. Don’t make it harder on your- self Review your legal and factual po- sition properly before responding substantively to your opponent(s) and always think, before hitting ‘send,’ how what you have writ- ten will be perceived by a judge or arbitrator: • consider whether the rela- tionship is a valuable, long- term one and act according- ly to try to de-escalate; • at the outset, consider