ANALYSIS OF ORDINARY MEANS OF RESOLVING EMPLOYMENT LAW RELATED DISPUTES VIS-À-VIS THE COMPETENCE OF ARBITRATION ON LABOR MATTERS IN RWANDA (original) (raw)
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Arbitration Despite the Parties?
Netherlands International Law Review, 1992
T. VARADY flexible, and speedy procedure, and it may apply the 'new lex mercatoria' as well. Arbitration may be shaped to meet the wishes of the parties, and it also gives more room for maneuvre in the search for a mutually acceptable compromise. In their book on international commercial arbitration in New York, dealing with the question 'Why arbitrate?', McClendon and Goodman state unequivocally: 'The most obvious advantage is party autonomy resulting from the fact that arbitration is the creature of a contract between the parties. ' 2 Arbitration owes its justification to its adaptability to party needs, but it also owes its very existence in each dispute to the will of the parties-and party autonomy has been the crucial tool in removing obstacles hampering the constitution and the functioning of arbitral tribunals. As was stated most clearly by Schmitthoff, "The first and foremost principle of law in commercial arbitration is that it is founded on the autonomy of the parties' will.' 3 One has to add that party autonomy has not remained the only mainstay of international commercial arbitration. Over the past decades a network of international instruments pertaining to international commercial arbitration has emerged, 4 as a result of which arbitration agreements have become reliable, while arbitration awards have become more efficient (more readily enforceable) than court decisions on the international scene. An important role in stabilizing the position of arbitration may also be ascribed to its institutionalization, assisted by model-rules. Courts have also become much more supportive of arbitration. The question I would like to raise in this essay is whether, in a moment of wellestablished strength and reputation, arbitration has remained faithful to its alliance with the parties-and their imperfections. A well-established mechanism tends to follow its own logic and regularities, instead of relying consistently on thesometimes inchoate-guidance given by the individual parties. The arbitration agreement, which enables the arbitrators to proceed and sets the course of such proceedings, is often incomplete, sometimes patchy, or even contradictory. Imperfections require correctives. At this point, the dividing line between assistance to the parties and assistance to the arbitration establishment becomes blurred. The temptation arises to facilitate arbitration, and to safeguard the logic 2.
ARBITRATION AND ITS INCREASING RELEVANCE
Anu Books, 2022
Business disputes frequently arise between companies, and in the current fast-paced commercial world, time is as valuable as money. If the dispute results in a protracted, difficult legal battle, both parties lose. Alternative Dispute Resolution (ADR) procedures, which have made it easier and more straightforward to settle disagreements between parties, are the answer to this problem. The use of arbitration as a primary ADR technique dates back to the days of the village panchayat when disagreements between individuals were arbitrated by the elders in accordance with the laws of natural justice. Arbitration, to put it simply, is a way for parties to settle their differences outside of court.
Arbitration in Economic and Legal Aspects
International Journal of Interdisciplinary Research and Innovations, 2016
Arbitration is a procedure that efficiently resolves disputes between parties. As alternative procedure, arbitration has begun to dominate globally in disputes between businesses. More complicated disputes and those with larger amounts, all over the world are solved by arbitration tribunals. While in economic terms, arbitration is the process of taking advantage of price differences in money, precious metals or stocks. If we assume that buying and selling is to be fulfilled at the same time, then the arbitrator is not responsible for any risk. Positive differences between the sales price and the purchase price, is the benefit of an arbitrator. During the study of literature research we did the evaluation of arbitration made in economic and legal terms. Making clarification of arbitration, the article will include possible differences and similarities in these two different areas, additionally its application in the international field. 1. ARBITRAGE IN LEGAL ASPECT This chapter provides an introductory presentation on arbitration as a form of dispute resolution. Chapter describes the development of arbitration over time, its advantages and disadvantages compared with the judiciary and other forms of dispute resolution. 1.1. Summary for Arbitration: Disputes shown between the parties which are based on any contract or agreement for a long time have been resolved only by the competent court. But with the development of economy and trade, these disputes have evolved and therefore appeared the necessity for alternative and more efficient ways to resolve such disputes besides the courts. One of these methods is also arbitration. Although considered a new method and alternative way, arbitration along with mediation and negotiation, present methods that have been used since the earliest times to resolve disputes, thus we can say that these alternative methods are ancestors of the courts to which we turn today. Arbitration can be defined as an agreement between two or more persons, that some or all legal disputes which have arisen or which may arise between them, to subject to arbitration (Assembly of Kosovo, Law no. 02/L-75, Article 2). So, arbitration is based on a preliminary agreement whereby the parties agree that in case of dispute the resolution will be made in the midst of arbitration rather than court, this agreement explicitly excludes the jurisdiction of the courts and gives competence to arbitration. It should be noted that the arbitration agreement is valid only if it is written down. This order is beginning to popularize every day more and more because the businesses are aware that in addition to court proceedings, arbitration is a more informal, faster, cheaper and also more private and confidential. Arbitration compared with the proceedings has its advantages and disadvantages. Can be considered as priority the speed of dispute resolution, low cost, confidentiality, the expertise of the arbitrator in the relative field, the selection of arbitrators by the parties themselves and the decision shall be final and binding on the parties. While the shortcomings of arbitration can count impossibility of appeal against decisions of arbitrator, the possibility of verification of the actual situation is more limited compared to courts, arbitrators when necessary cannot take action against the parties, execution of the arbitration decision is more difficult compared to court " s decision.
Arbitration in labour disputes and Arbitration in Commercial disputes-A comparative study
Black's Law Dictionary defines legal arbitration as "a process of dispute resolution in which a neutral third party (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. Where arbitration is voluntary, the disputing parties select the arbitrator who has the power to render a binding decision." 2 Arbitration in labour disputes is concerned with unionized workplace 3 whereas arbitration in commercial disputes refers to arbitration of disputes "to cover matters arising from all relationships of a commercial nature, whether contractual or not". 4 The biblical story of King Solomon to whom two mothers both claiming maternity of a child came to solve the problem was probably the first recoded evidence of arbitration. Interstate arbitration in Greece by King Philip the second, father of Alexander, dates back to 337 B.C. 5 Arbitration was connoted in England well before the King's Court was established. The commercial arbitration in England began in 1224 as a process of bypassing courts. 6 In America it is believed that Native American Indians adopted arbitral processes to resolve disputes. However, after 1492 the arbitration concepts were institutionalised as during initial settlement of the European migrants a large part of the English common law system entered into the American jurisprudence. 7 India is having a long history of arbitration. In ancient India people having disputes used to put it before a group of 2 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 6 wise people of the societypanchayat-for a binding settlement. The first arbitration law that was enacted in India was Bengal Regulations in 1772 under British Rule. 8 The present article after briefly portraying the basics of labour and commercial arbitration addresses a comparative study of labour arbitration and commercial arbitration. LABOUR ARBITRATION When there is a dispute between management and labour union under a collective-bargaining agreement and when all other measures to resolve the issue have been failed, the dispute is referred to an impartial and unprejudiced third party for labour arbitration. Labour arbitration comprises of two major arbitration elements (i) arbitration of rights and (ii) arbitration of interests. 9 Labour arbitration which rests on dispute over existing contracts is arbitration of rights and when the dispute is related to the introduction of new contracts between trade union and management arbitration of interests comes into picture. COMMERCIAL ARBITRATION Commercial arbitration is a process of resolving a dispute by assigning it to an unbiased third party, an arbitrator, chosen by the parties in dispute for a binding decision on the basis of the arguments conferred and testimonies submitted to the arbitrator. Power of the Judiciary to compel an agreement to arbitrate has heightened the usage of commercial arbitration. The English Arbitration Act, 1889; Arbitration Act 1950 (UK); Federal Arbitration Act of 1925 (USA); and Uniform Arbitration Act 1955 with 1956 amendment (USA) administered judicial enforcement of commercial arbitration agreements. 10 Customarily agreements between members of trade associations, contracts between persons in commerce and industry, and arrangements between tradesmen and consumers often include an arbitration clause citing particular arbitration rules. Commercial arbitration may be domestic as well as international in nature. In international commercial arbitration business communities of different countries are involved for out of court settlement of the commercial disputes. International commercial arbitration was facilitated by UN Commission on International Trade Law with an aim to harmonize and unify laws related to commercial arbitration across the world.
Arbitration and the Importance of the Arbitration Agreement
2020
Dispute resolution through arbitration based on the prior alignment of the wills of the parties has long been known and has a long tradition. This specific way of resolving disputes has survived throughout this long time as a result of the trust that the parties have shown in it, presenting to the arbitration for resolution their disputes. The normative regulation of dispute resolution before international commercial arbitration in its current form is of modern times. As an alternative method of resolving disputes, arbitration manages to have recognition and implementation in both local and international society. Although it is said that resolving disputes in arbitration proceedings is the same as resolving disputes in regular courts, which puts into dilemma the conditions that must be met to begin resolving an issue in arbitration proceedings. One of these conditions is the arbitration agreement itself, which the parties themselves must establish an agreement to resolve their disputed issue through arbitration proceedings. Such a thing does not happen in the procedures conducted in the regular state courts, since in order to initiate the contentious issue in the regular court, only the plaintiff is enough to initiate the lawsuit and have a legal interest regarding the object of the lawsuit. The Arbitration Agreement is of special importance to the Arbitration Courts, which in case the parties are not created cannot resolve the issue in the arbitration procedure, since the parties themselves are the ones who with their agreement determine the essential elements of the arbitration procedure as well as themselves, the development of the case in arbitration proceedings.
International Journal of Social Science And Human Research, 2023
Arbitration is an alternative dispute resolution method (ADR) and has now become one of the preferred mechanisms chosen by parties to settle disputes of a commercial nature. There is no proper definition of arbitration and unlike court proceedings; it is a voluntary agreement agreed to by the disputing parties and the decision also known as the arbitral award is binding upon them. Arbitration is quasi-judicial in nature and an arbitrator often referred to as a private judge is a person who adjudicates on disputes submitted to him or her by the parties.1According to Sir John Donaldson, ‘arbitrators and judges are partners in business of dispensing justice, the judges in the public sector and the arbitrators in the private sector.’2 Nowadays, arbitration is an emerging trend and the popularity of such a system can be attributed to many advantages it offers compared to litigation. The main fundamental features of arbitration among many others are flexibility, confidentiality, impartiality, neutrality and party autonomy.
The Pros and Cons of Arbitration Compared to Litigation in Rwandan Courts
SSRN Electronic Journal, 2016
Arbitration is a specially established mechanism for the final and binding determination of disputes, concerning a contractual or other relationship with a national or international element, by independent arbitrators, in accordance with procedures, structures and substantive legal or non-regal standards chosen directly or indirectly by the parties. Disputes are an inevitable occurrence in many commercial transactions or any other transaction whether at national or international levels. Different commercial and legal expectations, culture approaches, political ramifications and geographic situations are some of the sources for disagreements and disputes between contracting parties. Genuine differences can concern the meaning of the contract terms, the legal implications for a contract and the respective rights and obligations of the parties. Where disputes arise and cannot be resolved through negotiations, they will need to be resolved in accordance with a legal process. This process should have the confidence of the parties or at least be in a forum that is acceptable to the parties. In these circumstances, parties to national or international commercial contracts frequently look to arbitration as private, independent and neutral system of disputes resolution. However, a person may be in a position where he needs to determine whether or not he will put an arbitration clause in the contracts that he uses in his business. What are the pros and cons of arbitration as compared to the litigation? This paper is therefore intended to analyze the advantages and disadvantages of arbitration vis-à-vis the court litigation so as to point out the most viable option in reality when it comes to dispute resolution.
The Validity, Effectiveness, and Enforceability of an Arbitration Agreement: Issues and Solutions
Access to Justice in Eastern Europe, 2021
The main reason for dispute in international commercial arbitration is the existence of an arbitration agreement concluded between the parties to a foreign trade agreement. The procedure of dispute resolution in international commercial arbitration will depend on the extent to which this arbitration agreement is concluded correctly in accordance with the norms of international and national law. Quite often, in the law enforcement activities of both national courts and arbitrations, there are questions about the validity, effectiveness, and enforceability of an arbitration agreement. In different countries, this issue is addressed ambiguously. In one case, national law takes precedence, and, accordingly, national courts are empowered to consider the validity, effectiveness, and enforceability of an arbitration agreement. In other cases, however, the autonomy of the arbitration agreement is a priority aspect of the consideration of any procedural issues by international commercial arb...
Arbitration as a Dispute settlement Procedure
This paper studies Arbitration as a dispute resolution mechanism (procedure) and its efficiency in resolving international disputes that arise between two or more countries because of border issues or cultural heritage issues. This paper also reflects on the role of the arbitrator and arbitral seat in the arbitration. Furthermore, it deals with how Arbitration works as a dispute resolution mechanism and the leading cases in which it acts as a mechanism to dissolve international issues at the same time the issues faced during the arbitration.