Memorandum of Understanding
- No Secret Deal

According to the Utilities Regulations (Procedural) Rules 2003, rule 12 states: "Subject to rule 13, documents filed in respect of a proceeding shall be placed on the public record.

Accordingly, the CEO of Cable & Wireless filed an application and part of the application is Exhibit DA2, entitled "Memorandum of Understanding".

The entire application with accompanying exhibits as well as all other documents filed with the Fair Trading Commission (FTC) form part of the public record.

Rule 13 relates to material which the Commission has deemed confidential and these are not placed on the public record. Nowhere on the pages of the exhibits do I see the word "Confidential" and where there is confidential material, an abridged version is placed on the record.

The Public Record gives citizens right of access. It presumes a right of access to information; to scrutinize and to express concern. It presumes a right to inspect and to copy and hence every citizen is entitled to inspect and copy the public record.

In this case, the question of enforcing such a right has to do with resources. The Memorandum of Understanding is 43 pages long. The entire application with documents and affidavits is about 400 pages. FTC would be surely challenged to produce copies of these on demand.

Of course, the obvious thing to do is to put it on the FTC web site. The application is there but not the supporting documents. If these form part of the public record then this inconsistency should be corrected.

Setting A Telecommunications Framework

The Memorandum of Understanding (MoU), dated 16 th October 2001 can be described as a framework for carrying Barbados forward, through the liberalisation of telecommunications.

It outlines certain steps such as issuing new licences to C&W to replace the one that should have ended in 2011. It speaks of undertakings by the government such as the enactment and amendment of legislation, including legislation for the establishment of the FTC; to form part of the process of liberalisation and to institute a process for rate setting in Barbados .

There are undertakings by C&W as well, such as the amalgamation of the C&W group of companies into one, of course with the consent of the shareholders. C&W also agreed to surrender their respective existing licences until the new ones were issued.

One feature of the MoU is the way the language is couched. For example, the phrase "agrees to use its best endeavours to ensure that (or facilitate)" prefaces many paragraphs under the government's commitments.

Another principle behind the MoU can be found at clause 12.2 which states: "If for any reason any provision or provisions of this Memorandum is or are deemed to be unenforceable and void, and neither party wishes to terminate the Memorandum in accordance with clause 9, that unenforceable and void provision(s) shall be severed and the remaining provisions shall remain in full force and effect."

Breach of the MoU

The effect of any breach of the terms of the MoU according to clause 9, is termination forthwith. Clause 9.2 clearly sets out the legal implications of the termination. It states in part:

"For the avoidance of doubt, in the event of termination nothing in this memorandum and no act carried out in performance of this Memorandum will be deemed to have affected or in any way otherwise prejudiced any claim or other rights and obligations."

While at clause 10.2 the MoU provides for arbitration "at the request of either Party to be settled by three arbitrators in accordance with the Arbitration Act Cap 110", the spirit of the MoU is captured in clause 10.1 which states:

"Before resorting to arbitration as provided for in clause 10.2, the Parties agree to use their best efforts to resolve all disputes arising out of or in connection with this Memorandum through good faith."

Therefore, not only is the MoU not a secret deal, it does not even appear to be, in itself, binding in Court since its life is dependent upon the willingness of the two parties to let the MoU stand. Even further, it acknowledges the establishment of a process which is dependent on public participation for which C&W could not reasonably seek immunity or any guarantees from government.

Roosevelt O. King
admin@bango.org.bb