M&A Arbitrations in the Telecoms Sector

Significant M&A activity in the telecoms sector

Deal volumes[2]

M&A activity in the telecoms sector mounted a comeback in 2021. The industry generated US$203 billion in deal value in 2021.[3] Deal value and volumes increased between 2020 and 2021 by 32 per cent and 48 per cent respectively. They were the highest in the Americas, followed by Europe, the Middle East and finally Asia-Pacific.[4] From 2016–2021, the total deal values reached US$929 billion. Some of the main M&A activities comprise 35 per cent scale deals, 21 per cent infrastructure deals, 19 per cent full assets divestment and 4 per cent in-scope country deals.[5]

Context of deals

As evidenced from the statistics, the majority of these deals were made up of in-country scale deals where in-country consolidation took place to rapidly scale businesses in the race for market dominance and to achieve economies of scale.[6] For instance, in March 2021, Canadian Rogers Communications announced its intended acquisition of Calgary-based Shaw Communications for US$16 billion,[7] which has recently been approved by the Canadian telecoms regulator. The acquisition would make Rogers Communications the second-largest cellular and cable operator in Canada as a result of the acquisition. It would benefit from Shaw Communications’ strong presence in Western Canada and assist with rolling out 5G throughout the country.[8] Another noteworthy in-country scale deal was the US$2.2 billion deal between Ooredoo Group and CK Hutchison to merge their respective Indonesian businesses. The merger is intended to enable the merged company to become the second largest mobile telecoms company in Indonesia to better compete with the state-backed competitor, which controls approximately half of the cellular market in the country.[9] The merged company will have the enhanced scale and financial resources to roll out 5G network in Indonesia, which is anticipated to account for 37.5 per cent of all mobile connections in Indonesia in the next five years and where the 4G network will account for 56.6 per cent of market shares.[10]

By contrast, in-scope deals, which account for a mere 4 per cent of market activity, take a different form. The target company is usually a related but distinct business, enabling an acquirer to enter a new market. Generally, this happens when acquirers want to improve their market positions while also adding product lines, geographic reach or other important capabilities, while preserving the unique attributes of the company that it acquires.[11]

Next in line to scale-deals in terms of volume and value are infrastructure deals, mainly in tower and fibre assets. One of the most notable infrastructure deals included America Tower Corporation’s US$9.4 billion purchase of Telxius, which holds around 30,700 tower sites across Spain, Germany, Brazil, Peru, Chile and Argentina.[12] The acquisition is meant to allow American Tower Corporation, one of the largest global Real Estate Investment Trusts, to scale its presence in Europe and Latin America and generate approximately US$775 million in property revenue.[13] Orange, France’s leading telecoms operator, also announced in 2021 its agreement to sell part of its fixed fibre assets in the country for US$1.58 billion to a consortium of three investors, comprising La Banque des Territories, CNP Assurances and EDF Invest consortium.[14] The move is aimed at sharing the costs of deploying fibre optics to rural France and extracting value from its infrastructure.[15]

Joint ventures

M&A deals are not the only big activity in the telecoms space. Companies have also been seen to participate in alternative deal structures, such as joint ventures, where neither shareholder wants to relinquish control. This option is usually objective driven, such as where there is a desire to consolidate networks but remain independent and as a means to carve out existing infrastructure or build new infrastructure but not wanting it to negatively affect balance sheet and funding considerations.[16]

Growing role of private equity

Beyond M&A, the telecoms market is also gaining complexity. As demand for mobile connectivity continues to grow due to the increased desire for connectivity, the rise in smartphone ownership, digital content consumption and streaming, it creates opportunities within the telecoms market. Telecommunication providers have to invest in new network technologies to meet the demand for high-speed internet, but this also presents growth opportunities, and presents itself as a lucrative investment for private equity firms as they seek to increase profit yield.[17]

The total value of private investments in the industry reached US$104 billion in 2021.[18] This includes both asset investment and participation in operations, such as investing in a new tower, macro and micro sites, data centres and fibre networks.[19] One notable private transaction in 2021 was made by private equity firms Apax Funds and Warburg Pincus, which agreed to acquire T-Mobile Netherlands Holdings BV from Deutsche Telekom for US$5.5 billion, with the aim of innovating and accelerating growth.[20] T-Mobile is a leading European telecoms operator, which operates four brands, and is the first mobile network operator in the Netherlands to offer unlimited and nationwide 5G network. It serves around 700,000 broadband customers.[21]

Another reason for the proliferation of private equity in the telecoms market is the undervaluation of telecommunication providers’ assets by the public market.[22] In at least one case, the controlling shareholder of the French telecoms provider, Iliad, considered the public market to be undervaluing its shares. He offered US$3.6 billion to buy the remaining shares in the company that he did not already own in order to privatise the company.[23] The move to privatise is reportedly aimed at achieving quicker transformation at value creation and obtaining investment.[24]

Market fragmentation

Although there has been an uptick in consolidation activity, there remains potential for further consolidation as the telecoms industry still sees fragmentation. For instance, the European Telecoms Network Operators’ Association found that the European telecoms market lacked a single market and is heavily regulated, which is a reason for its fragmentation. It accounted for 38 operating telecoms groups compared to seven in the United States, four in Japan and three in South Korea.[25] There have been calls for the EU to de-regulate to take full advantage of economic opportunities arising from the growing digital platform, which indicates that consolidation activity would grow.[26]

Future trends

Moving forward, industry analysts predict that the telecoms space is primed for another active year.[27] We will continue to see scaled M&A deals, particularly in the fragmented and less regulated markets, and infrastructure deals, as mature infrastructure offers a path for revenue growth. As companies re-evaluate their business models and sell non-core assets to improve their valuation, private equity firms will continue to be interested as major players in the sector.[28] As many operators face balance sheet and funding rating constraints as they accelerate the build-up of new network coupled with existing shareholders’ desire not to relinquish control, alternative deal options such as joint ventures with private investors will continue to be attractive.[29]

Types of disputes arising

The types of disputes arising in respect of telecoms M&A can be broadly divided into ‘pure telecoms’ disputes and disputes that arise out of the contractual arrangements between the parties. Although it is likely that the latter will concern issues that relate to the telecoms asset, at their core these are contractual disputes.

These types of disputes will be familiar to many arbitration practitioners and will relate to the precise terms of the transaction documents and arrangements, if any, between the parties following closing. As set out further below, the approach any tribunal will take to determining these disputes will depend on the applicable law and – in certain circumstances – the location of the telecoms asset. The themes of these disputes are largely similar irrespective of whether they are determined under a common or civil law system.

Disputes that typically arise as a direct result of the merger or acquisition include:

  • claims of misrepresentation;
  • breach of warranty;
  • failure to comply with closing mechanics;
  • breach of post-closing obligations (including purchase price adjustments); and
  • claims under indemnities.

In addition to disputes arising from the immediate aftermath of the transaction, it is common for telecoms acquisitions to be structured as joint ventures (as discussed further above). The management of the joint venture and the relationship between the parties, often pursuant to lengthy shareholder agreements, can give rise to further disputes including pure breach of contract claims, claims for specific performance of contractual obligations, claims for wrongful termination and – in certain circumstances – company law disputes regarding the management of the company. The over a decade long dispute involving multiple arbitrations between Çukurova Holding and various other shareholders (including Luxembourgish LetterOne, Dutch TeliaSonera and Russia’s Alfa Group) in Turkey’s largest mobile operator, Turkcell, serves as a famous example of such disputes.[30] While these shareholder disputes will be largely governed by the contractual arrangements between the joint venture parties, there is increasing scope for issues of company law to arise particularly in circumstances where national governments have insisted on the licence being held by a local company. The increasing tendency of arbitrators to determine they have jurisdiction over company law disputes in light of cases such as Fulham Football Club and others means there is a likelihood shareholder disputes will become a common part of commercial arbitration more generally.[31]

In addition to the various contractual disputes that may arise, there are 'pure telecoms' disputes that arise as a result of the particular concerns of the telecoms sector. In particular, telecoms industries are heavily regulated. Telecoms operators are reliant on licensing consents from the regulator or governing body. These usually include restrictions on change of ownership, requirements for operators to meet certain standards of service, merger controls and payment of licensing fees.

Many of the largest, highest-value and most complex telecoms arbitrations that have been reported in recent years include issues of this kind. Because of the nature of these issues, disputes have commonly given rise to overlapping investor-state claims, running alongside commercial arbitration claims brought under the relevant M&A or joint venture documents.

The interaction between commercial disputes between shareholders and regulatory decisions has been a key feature of recent telecoms disputes:

A failed acquisition of a mobile operator in Senegal has given rise to multiple ICC arbitrations between the proposed buyers and the seller.[32] The dispute arose out of the seller’s decision to terminate an agreement to sell the telecoms operator and enter into a separate agreement with a new buyer. Two days later, the Senegalese president issued a decree approving the transfer of the mobile licence to the first proposed buyer. The ICC claims are still ongoing leaving open the question of the impact of the government’s approval for the first transaction on the contractual claims.

In 2007, France Telecom (now Orange) pursued a claim for specific performance requiring Orascom – an Egyptian company – to sell its stake in the holding company of a local mobile phone operator.[33] France Telecom’s request was granted, and the Tribunal ordered Orascom to transfer the shares at a price determined by the Tribunal. Following the Award, the Egyptian Capital Market Authority ordered a public tender of the mobile operator’s shares at the price per share set by the Tribunal. Subsequent disputes between Orascom and France Telecom continued. The parties reached settlement in 2010.

A decision of the Iraqi regulator in 2014 to revoke its approval for a joint venture between Orange, Agility (a Kuwaiti company) and local shareholders has given rise to two separate Bilateral Investment Treaty claims, a number of commercial arbitrations between the joint venture parties and litigation in the DIFC.[34] The proceedings are confidential and remain ongoing.

Contractual frameworks and legal risk

Telecoms companies adopt a range of structures to give effect to joint ventures. Typically, however, the vehicle of choice is an incorporated joint venture, with a single operating company holding a national operating licence in the relevant territory. Depending on local law requirements and tax considerations, the joint venture vehicle will often be an offshore holding company. Indeed, several recent high-profile arbitrations in the telecoms sector have involved disputes among holders of equity in offshore holding companies. Examples include the US$600 million ICC arbitration between PT Ventures and Unitel, concerning a BVI holding company of telecoms assets in Angola,[35] and the ongoing dispute between shareholders in Iraq’s Korek Telecom, who structured their investment via a DIFC holding company.[36]

The topco shareholders will invariably enter into highly negotiated shareholder agreements that may provide a full suite of shareholder protections, including:

  • shareholder reserved matters, voting thresholds and board appointment rights;
  • put-and-call options on shares;
  • rules to govern contribution of equity and shareholder debt; and
  • non-compete obligations.

It follows that the sale and purchase of interests in operating telecoms ventures will frequently be structured as share sale and purchase at the topco level. The new shareholder will enter into the potentially complex suite of governance agreements that govern the joint venture and the relationships between the parties. Subject to local law requirements, it may well be necessary to obtain licensing approval for the change of ownership, and clearing the necessary consents (including merger control) will be a condition precedent to closing.

It follows from the above that, more often than not, disputes within the joint venture will have all the usual hallmarks of other forms of shareholder dispute. They will manifest as claims under shareholder agreements and potentially also in company law actions, such as unfair prejudice.

In this regard, telecoms joint ventures differ from other high-value joint ventures with a predisposition for arbitration. In particular, the upstream oil & gas industry and (to a perhaps lesser extent) the mining industry have perfected forms of unincorporated joint venture that have become industry standard. This allows buyers and sellers of interests in strategic assets to structure their transactions via the creation of direct contractual rights that reach into the underlying business. The archetypal such agreement is the production sharing contract. While parties will enter into heavily negotiated transactional documents to affect the sale and purchase of interests in those industries, the end result is not typically a share sale, but rather a ‘farm-in’, in which the buying party structures its entry into the asset-facing agreements.

In practice, disputes around price, misrepresentation and completion are apt to arise under a farm-in agreement, as they would under a share sale and purchase agreement. However, the relationship between the parties post-closing will be materially different in the two scenarios. In particular, disputes in the environment of an incorporated joint venture will take on the wider flavour of company law and may be influenced by unanticipated mutual rights and obligations that arise through common ownership of a company.

Common law approaches

The approach of the common law to telecoms disputes does not differ from disputes that arise in different sectors under contracts or in respect of companies. The approach will always depend upon the relationship between the parties and the place of incorporation of the joint venture. However, there are a number of overriding principles to the common law approach to contractual and company law disputes.

The starting point of any contractual dispute will be the words of the contract to give effect to what the parties agreed.[37] While tribunals will, in certain circumstances, move to imply terms to the contract or rectify clear mistakes, they will be slow to deviate from the clear words used by the parties. Tribunals will be even slower to imply terms or accept arguments of ‘commercial coherence’ when the parties have been advised by sophisticated legal counsel and the agreements have been heavily negotiated. There is a strong presumption that if the parties had meant to address a particular issue, they would have done so. The aim of providing parties with legal certainty takes precedence over issues of fairness or commerciality. Such concerns will only be taken into account if – and only if – the language of the contract could support different constructions.[38] The result is that the majority of disputes arising in respect of the transaction documents will be determined exclusively by reference to the terms of the contract.

However, it is important not to neglect the growing line of authority in the common law on general and specific duties of good faith. These should not be viewed as exceptions to the general rule that the common law will give precedence to the words of the contract – the common law will only move to imply terms into contracts if they do not contradict the express words of the contract and more generally if the contractual framework permits the implication of the relevant term. In addition to case specific implied terms, in certain circumstances, the court or tribunal will imply duties of good faith.

The general duty of good faith has been developed under English law following the Yam Seng case, which found that where the contract was long-term, which was provided for a close working relationship between the parties, it could be considered a ‘relational contract’ and thus a general duty of good faith could be implied into the contract.[39] This has been expanded in Bates and subsequent case law to set out a set of indicators for ‘relational contracts’ and when a general duty of good faith will be implied.[40] As set out above, telecoms investments are often structured as long-term investments through joint ventures with accompanying complex shareholder arrangements. The Bates indicators of a relational contract include a commitment on the part of the parties to collaborate with the other, to have a high degree of communication and cooperation, a substantial investment and exclusivity. All these factors are commonly present in long-term arrangements between partners of telecoms operators.

Alongside the growing jurisprudence on general duties of good faith, recent English case law has suggested that courts and tribunals will imply specific obligations of good faith on parties when exercising contractual discretion.[41] While the instances of courts and tribunals implying specific duties of good faith are limited,[42] they remain a powerful tool for joint venture partners when arguing that a partner has exercised a contractual discretion in a manner that serves their interests and is generally unreasonable.

Finally, an often-neglected aspect of common law is the development of rights of minority shareholders. Over time, the common law developed powerful protections for minority shareholders including pursuing derivative actions in the name of the underlying company against directors and other controlling shareholders and claims against the majority shareholders for managing the company in a manner that is prejudicial to the interests of the minority.

The availability of these remedies will be dependent upon the place of incorporation of the joint venture company. If the joint venture company is incorporated in a common law jurisdiction, there remains a question as to whether the tribunal or the local courts have jurisdiction over the right of the minority shareholder to pursue a claim in the name of the company.[43] However, cases such as Fiona Trust and Fulham Football Club suggest that tribunals will feel able to take jurisdiction over company law issues.[44] It remains to be seen whether counterparties will increasingly seek to address these remedies in their contractual arrangements – either through imposing restrictions on the exercise of such remedies or by permitting minority parties the right to pursue claims against the majority pursuant to the transaction documents.

How civil law disputes may differ

Concepts of good faith and fair dealing are – by contrast to common law jurisdictions – far more established and robust in civil law countries.

Many civil law jurisdictions herald back to the Napoleonic Code, which enshrined into law the requirement of parties entering and executing their contracts in good faith.[45] Today, good faith features prominently in the civil codes of Europe,[46] Asia,[47] Latin America[48] and the Middle East.[49]

Despite its prevalence, there is no uniform definition of good faith and fair dealing between civil law jurisdictions. Instead, it is a flexible concept that is designed to ‘moralize contractual relationships’ and ‘temper inequalities’.[50] Such moralisation and temperance has, for example in France, been held to include a duty of disclosure between the parties (concerning matters such as the quality of goods or services), a duty of loyalty in negotiations (preventing malicious or duplicitous negotiation tactics), a duty to exercise rights proportionately and in moderation, and a duty to cooperate to facilitate mutual performance (also known as the duty of loyalty, cooperation and coherence).[51]

Unsurprisingly, issues of good faith and fair dealing have featured in several arbitrations arising out of disputes in the telecoms industry.

In the recent case of Dardafon v. Kosovo Telecom, an ICC tribunal ordered those damages of €10 million be paid by Kosovo Telecom after failing to act in good faith during contract renewal negotiations with Dardafon.[52] Kosovo Telecom had presented Dardafon with an abrupt and late ultimatum that it accept the renewal terms or lose its licence. This, the tribunal held, breached the contract’s express requirement to negotiate in good faith, as well as the general requirement of good faith under Yugoslav law. Kosovo Telecom’s presentation of the proposed revenue-sharing model just 11 days before expiration of Dardafon’s licence, their insistence on unilateral conditions, and their refusal to extend the window for negotiations all constituted bad faith.

In DigiTelCom Ltd v. Tele2 Sverige AB,[53] an ICDR tribunal considered the scope of the implied covenant of good faith and fair dealing imposed under New York law.[54] The claimant, DigiTelCom, was a minority shareholder in St Petersburg Telecom and Oblcom; two Russian telecoms companies. The respondent, Tele2, became the majority shareholder in both companies, but the parties disagreed over how to expand the companies’ wireless phone service. To resolve this disagreement, they entered into several agreements whereby DigiTelCom would exit as a shareholder while transferring it the digital network licence and granting it access to Tele2’s roaming services. DigiTelCom subsequently accused Tele2 of having breached the various agreements, including the implied term of good faith and fair dealing under New York law. The tribunal rejected DigiTelCom’s claim by holding that Tele2 had cooperated in good faith to try to effect the transfer of the digital network licence (including, at times, being more proactive than DigiTelCom in negotiations with the regulator), while all other complained against issues were outside the control of Tele2. DigiTelCom’s claims were accordingly dismissed.

In Telenor Mobile Communications AS v. Storm LLC,[55] an UNCITRAL tribunal considered whether the respondent had breached an express contractual duty of good faith governed by New York law. The dispute arose out of a shareholder’s agreement between the majority and a minority shareholder in the Ukrainian telecoms company Kyivstar. Storm, as a minority shareholder, was required to act in good faith to comply with and give effect to the shareholders’ agreement between it and Telenor. However, in breach of that duty, Storm refused to engage with and attend Kyivstar’s board and shareholder meetings, competed with Kyivstar’s business through its other telecoms companies, and commenced various other litigations against Telenor in breach of the shareholders’ agreement arbitration clause – all of which led to the total paralysis of Kyivstar and its business. The tribunal accordingly granted Telenor’s request for specific performance and ordered that Storm immediately comply with its obligations under the shareholders’ agreement.

The above-mentioned cases underscore the potential importance of good faith requirements in the telecoms industry. Telecoms companies are highly regulated, large and sophisticated operations that require a great deal of ongoing technical collaboration between its various stakeholders. It is unsurprising in this context that issues of good faith – where applicable – can become of great importance. Nonetheless, whether a party breaches any such duty will necessarily and heavily depend on the particular facts of the case and the conduct of each party involved.

Conclusion

M&A transactions in the telecoms sector are high value and raise a complex array of financial, regulatory and political risk. Those risks arise in any jurisdiction, especially when factors such as merger control are taken into consideration. Self-evidently, however, the risks are enhanced in emerging markets, where data may prove less reliable and regulatory frameworks. In this setting, it is a testament to the quality and care of deal lawyers that more arbitrations do not arise in the sector, following the closing of transactions. Transactions in the sector are heavily lawyered by sophisticated advisers, and deals are evidently structured to try to flush out risks at the CP stage.

Where problems do emerge, however, they are liable to give rise to disputes that are marked by their complexity. This is especially so in circumstances where a seller of equity has remained in the structure (as is typical with a local operator that divests equity to raise the enormous capital needed to grow and sustain a telecoms business). These disputes are marked by internecine struggles between co-shareholders, often with overlapping claims under sale and purchase agreements, shareholder agreements and under general company law. This overlap of claims can also give rise to jurisdictional battles, where the same issues can be framed by different parties as falling within the ambit of different agreements.

It is likely that disputes arising from telecoms M&A will be a setting for continued evolution of common law concepts of mutual good faith, such are the long-­term relationships between parties. It remains to be seen whether this will act as an inducement or a deterrent to those considering resorting to arbitration when their deals have turned out badly.


[1] Will Hooker is a partner and Rosalind Axbey, Rachel Ong and James Newton are associates at Pallas Partners LLP.

[2] ‘Telecom M&A: Here Are the Latest Deal Trends Worldwide’, Bain & Company, 11 May 2022 (https://www.bain.com/insights/telecom-m-and-a-here-are-the-latest-deal-trends-worldwide-interactive).

[3] ‘Telecom M&A: Here Are the Latest Deal Trends Worldwide’, Bain & Company, 11 May 2022 (https://www.bain.com/insights/telecom-m-and-a-here-are-the-latest-deal-trends-worldwide-interactive).

[4] ‘Global M&A Trends in Technology, Media & Telecommunications: 2022 Outlook’, PwC Global (https://www.pwc.com/gx/en/services/deals/trends/telecommunications-media-technology.html).

[5] ‘Telecommunications M&A: A Year of Resilience and Possibilities’, Bain & Company, 8 February 2022 (https://www.bain.com/insights/telecommunications-m-and-a-report-2022).

[6] ‘Global M&A Trends in Technology, Media & Telecommunications: 2022 Outlook’, PwC Global (https://www.pwc.com/gx/en/services/deals/trends/telecommunications-media-technology.html).

[7] ‘Canada’s Rogers to Begin Seeking Shaw Wireless Buyers’, Bloomberg UK, 14 March 2022 (https://www.bloomberg.com/news/articles/2022-03-14/rogers-said-to-begin-talks-with-potential-shaw-wireless-suitors#xj4y7vzkg).

[8] ‘Rogers’ takeover of Shaw’s broadcasting business wins conditional nod from Canada’s CRTC’, Nasdaq, 24 March 2022 (https://www.nasdaq.com/articles/rogers-takeover-of-shaws-broadcasting-business-wins-conditional-nod-from-canadas-crtc).

[9] ‘Qatar’s Ooeredoo, CK Hutchison to merge Indonesian telecom units’, Reuters, 16 September 2021 (https://www.reuters.com/world/middle-east/qatars-ooredoo-ck-hutchison-merge-their-indonesian-telco-arms-2021-09-16/).

[10] ‘Ooredoo, Hutchison dela creates $3bn MNO for Indonesia’, Capacity News, 5 January 2022 (https://www.capacitymedia.com/article/29tgv135tpvr6ae4omfi8/ooredoo-hutchison-deal-creates-3bn-mno-for-indonesia).

[11] ‘The renaissance in mergers and acquisitions: How to make your deals successful’, Bain & Company, 8 May 2013 (https://www.bain.com/insights/the-renaissance-in-mergers-and-acquisitions-how-to-make-your-deals-successful).

[12] ‘American Tower Buys Telefonica Wireless Masts for 9.4 billion’, Bloomberg, 13 January 2021 (https://www.bloomberg.com/news/articles/2021-01-13/american-tower-buys-telefonica-wireless-masts-for-9-4-billion#xj4y7vzkg).

[13] ‘American Tower Announces Telxius Towers Transaction’, Business Wire, 13 January 2021 (https://www.businesswire.com/news/home/20210112006167/en/American-Tower-Announces-Telxius-Towers-Transaction).

[14] ‘Orange Sells 50% of Fibre Unit Giving it a 3.3 billion Valuation’, Bloomberg, 23 January 2021 (https://www.bloomberg.com/news/articles/2021-01-23/orange-sells-50-of-fiber-unit-giving-it-3-3-billion-valuation#xj4y7vzkg).

[15] ‘Orange sells 1.3bln euros worth of fixed fibre assets in France’, Reuters, 23 January 2021 (https://www.reuters.com/business/finance/orange-sells-13-bln-euros-worth-fixed-fibre-assets-france-2021-01-23/).

[16] ‘Telecommunications M&A: A Year of Resilience and Possibilities’, Bain & Company, 8 February 2022 (https://www.bain.com/insights/telecommunications-m-and-a-report-2022).

[17] ‘Media and telecommunications: Deals 2022 outlook’, PwC Global (https://www.pwc.com/us/en/industries/tmt/library/telecom-media-deals-outlook.html); ‘Private equity has its sights set on telecom infrastructure investment’, Outvise, 8 September 2021 (https://blog.outvise.com/private-equity-has-its-sights-set-on-telecom-infrastructure-investment/).

[18] ‘Telecommunications M&A: A Year of Resilience and Possibilities’, Bain & Company, 8 February 2022 (https://www.bain.com/insights/telecommunications-m-and-a-report-2022).

[19] ‘Private equity has its sights set on telecom infrastructure investment’, Outvise, 8 September 2021 (https://blog.outvise.com/private-equity-has-its-sights-set-on-telecom-infrastructure-investment/).

[20] ‘Apax Funds and Warburg Pincus to acquire T-Mobile Netherlands’, Cision PR Newswire, 7 September 2021 (https://www.prnewswire.com/news-releases/apax-funds-and-warburg-pincus-to-acquire-t-mobile-netherlands-301370009.html).

[21] ‘Apax Funds and Warburg Pincus to acquire T-Mobile Netherlands’, Cision PR Newswire, 7 September 2021 (https://www.prnewswire.com/news-releases/apax-funds-and-warburg-pincus-to-acquire-t-mobile-netherlands-301370009.html).

[22] ‘Why telecoms groups have fallen out of fashion with investors’, Financial Times, 18 September 2020 (https://www.ft.com/content/fa4f6094-ea31-454b-b3c4-b62cbc012a40).

[24] ‘Eir’s owner Xavier Niel looks to take his business private’, The Irish Times, 30 July 2021, (https://www.irishtimes.com/business/retail-and-services/eir-s-owner-xavier-niel-looks-to-take-his-business-private-1.4634792); ‘French Billionaire Niel Bids $3.7 Billion to Take Iliad Private’, US News (https://www.usnews.com/news/technology/articles/2021-07-30/french-billionaire-niel-offers-to-buy-out-and-de-list-iliad-telecom).

[25] ‘Europe doubles 5G connections and passes 50% mark on FTTH, but still lags global peers’, ETNO, 2 February 2022 (https://www.etno.eu/news/all-news/723-state-of-digi-2022.html); see also ‘The Digital Decade and the Telecom sector value creation’, Pub Affairs Bruxelles, 28 September 2021 (https://www.pubaffairsbruxelles.eu/event/the-digital-decade-and-the-telecom-sector-value-creation/).

[26] ‘The Digital Decade and the Telecom sector value creation’, Pub Affairs Bruxelles, 28 September 2021 (https://www.pubaffairsbruxelles.eu/event/the-digital-decade-and-the-telecom-sector-value-creation/).

[27] ‘Media and telecommunications: Deals 2022 outlook’, PwC Global (https://www.pwc.com/us/en/industries/tmt/library/telecom-media-deals-outlook.html).

[28] ‘Media and telecommunications: Deals 2022 outlook’, PwC Global (https://www.pwc.com/us/en/industries/tmt/library/telecom-media-deals-outlook.html).

[29] ‘Telecommunications M&A: A Year of Resilience and Possibilities’, Bain & Company, 8 February 2022 (https://www.bain.com/insights/telecommunications-m-and-a-report-2022).

[30] ‘Alfa venture wins “Russian roulette” order in Turkcell struggle’, Global Arbitration Review, 5 August 2016 (https://globalarbitrationreview.com/article/alfa-venture-wins-russian-roulette-order-in-turkcell-struggle); ‘TeliaSonera wins share purchase dispute’, Global Arbitration Review, 16 February 2017 (https://globalarbitrationreview.com/article/teliasonera-wins-share-purchase-dispute).

[31] Fulham Football Club (1987) Ltd v .Richards and another [2011] EWCA Civ 855; ZCCM Investments Holdings PLC v. Kansanshi Holdings Plc & Anor [2019] EWHC 1285.

[32] ‘Senegal telecoms dispute gives rise to ICC claims’, Global Arbitration Review, 13 November 2017 (https://globalarbitrationreview.com/article/senegal-telecoms-dispute-gives-riseicc-claims).

[33] ‘Orascom and France Telecom clash over ICC award’ Global Arbitration Review, 17 April 2009 (https://globalarbitrationreview.com/orascom-and-france-telecom-clash-overicc-award-0).

[34] ‘Kuwaiti investor seeks to revive Iraq telecoms claim’, Global Arbitration Review, 8 June 2021 (https://globalarbitrationreview.com/article/kuwaiti-investor-seeks-revive-iraq-telecoms-claim).

[35] PT Ventures SGPS SA v. Vidatel Ltd, Mercury - Serviços de Telecomunicacões SA and Geni SA, ICC Case No. 21404/ASM/JPA (C-21757/ASM).

[36] See Agility Public Warehousing Company KSC v. Republic of Iraq, ICSID Case No. ARB/17/7.

[37] See, for example, Wood v. Capita Insurance Services [2017] AC 1173; Arnold v. Britton [2015] AC 1619.

[38] Wood v. Capita Insurance Services [2017] AC 1173 [11]–[12].

[39] Yam Seng Pte Ltd v. International Trade Corporation Ltd [2013] EWHC 111.

[40] Bates v. Post Office Ltd (No.3) [2019] EWHC 606 (QB).

[41] Braganza v. BP Shipping [2015] UKSC 17; Mid Essex Hospital Services NHS Trust v. Compass Group UK and Ireland Ltd [2013] EWCA Civ 200; Equitas Insurance Limited v. Municipal Insurance Limited [2019] EWCA Civ 718.

[42] See, TAQA v. Rockrose [2020] EWHC 58 (Comm) for an example where the Court refused to imply a duty of good faith.

[43] International Research Corp PLC v. Lufthansa [2013] SGCA 55; Sinwa v. Nordic International [2016] SGHC 111

[44] Fiona Trust and Holding Corp v. Privalov [2007] UKHL 40; Fulham Football Club op. cit.

[45] Article 1134 (‘Agreements legally formed have the force of law over those who are the makers of them. They cannot be revoked except with their mutual consent, or for causes which the law authorizes. They must be executed in good faith.’) and Article 1135 (‘Agreements bind not only as to what is expressed therein, but further as regards all the consequences which equity, usage, or law attribute to an obligations by its nature.’) of the French Civil Code.

[46] See, for example, Articles 1134 and 1135 of the French Civil Code, Article 242 of the German Civil Code, Article 7 of the Spanish Civil Code, and Articles 6:2 and 6:248 of the Dutch Civil Code.

[47] See, for example, Article 2(1) of the Korean Civil Act, and Article 1(2) of the Japanese Civil Law.

[48] See, for example, Article 1546 of the Chilean Civil Code, Article 1796 of the Mexican Federal Civil Code, and Article 422 of the Brazilian Civil Code.

[49] See, for example, Article 246 of the UAE Civil Code, Article 148 of the Egyptian Civil Code, Article 197 of the Kuwaiti Civil Code, and Article 172 of the Qatari Civil Code.

[50] B Fauvarque-Cosson and D Mazeaud, European Contract Law: Materials for a Common Frame of Reference: Terminology, Guiding Principles, Model Rules (2008), p. 156.

[51] J Wild, ‘Duties of Good Faith – The Challenge of a Mixed Civil and Common Law Tribunal’, in C González-Bueno (ed), 40 under 40 International Arbitration (2018), p. 70.

[53] DigiTelCom Ltd v. Tele2 Sverige AB (Award), ICDR Case No. 50 494 T 00309 09, 15 September 2011.

[54] Section 205 of the Restatement (Second) of Contracts (1981): ‘[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement’.

[55] Telenor Mobile Communications AS v. Storm LLC (Final Award, 2 July 2007).

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