Professional Documents
Culture Documents
Arbitration, nonjudicial legal technique for resolving disputes by referring them to a neutral
party for a binding decision, or “award.” An arbitrator may consist of a single person or an
arbitration board, usually of three members.
Arbitration is most commonly used in the resolution of commercial disputes and is distinct
from mediation and conciliation, both of which are common in the settlement of labour disputes
between management and labour unions. In mediation, the parties resort to a third person to offer
a recommendation for a settlement or to help them to reach a compromise. Such intervention by
a third party, which also occurs in international disputes between states in the form of diplomatic
intervention and good offices, has no binding force upon the disputants, unlike the arbitrator’s
ruling.
Commercial arbitration
Commercial arbitration is a means of settling disputes by referring them to a neutral person, an
arbitrator, selected by the parties for a decision based on the evidence and arguments presented
to the arbitration tribunal. The parties agree in advance that the decision will be accepted as final
and binding.
Arbitration customarily has been used for the settlement of disputes between members of trade
associations and between different exchanges in the securities and commodities trade. Form
contracts often contain a standard arbitration clause referring to specific arbitration rules.
Numerous arrangements between parties in industry and commerce also provide for the
arbitration of controversies arising out of contracts for the sale of manufactured goods, for terms
of service of employment, for construction and engineering projects, for financial operations,
for agency and distribution arrangements, and for many other undertakings.
The usefulness and significance of arbitration are demonstrated by its increasing use by the
business community and the legal profession in many countries of the world. An advantage of
arbitration can be the speed with which controversies can be resolved by arbitration, compared
with the long delays of ordinary court procedure. The expert knowledge of arbitrators of the
customs and usages of a specific trade makes testimony by others and much documentation
unnecessary and thereby eliminates some expenses generally associated with court procedures.
The privacy of the arbitration procedure also is much valued by parties to the controversy;
situations unfavourable to the party’s credit or deficiencies in manufactured goods revealed in
arbitration proceedings do not become known to outsiders. There are, however, disadvantages in
the arbitration process. Because in Anglo-American practice abitrators generally do not have to
provide any reason to accompany an award, it has been difficult to develop guidelines for the
conduct of business relations. Moreover, this uncertainty makes the arbitral decision less
predictable. Further obstacles to the wider use of commercial arbitration are the divergences in
municipal laws and court decisions that result in different interpretations of similar arbitration
questions and the fact that awards usually are not published.
Procedure
Because the arbitrator’s ability and fairness are the decisive elements in any arbitration, the
selection process is an important aspect of arbitration. Generally, both parties select an arbitrator
at the time a conflict arises or at the time the arbitration agreement is concluded. The two
arbitrators then select a chairman, forming a tribunal. The selection of arbitrators often is made
by agencies administering commercial arbitration under preestablished rules of procedure. These
organizations—various trade associations, produce exchanges, and chambers of commerce in
many countries—maintain panels of expert arbitrators. The parties may either make their own
selection or entrust the appointment of the arbitrators to the organization.
Challenges to the arbitration process are not uncommon. For example, a party may claim that no
valid arbitration agreement existed because the person signing the agreement had no authority to
do so or that a condition precedent to arbitration was not fulfilled. More often, arbitration is
contested on the ground that the specific controversy is not covered by the agreement. In such
cases, the issue of whether the arbitrator has authority to deal with the conflict is usually
determined by a court. The arbitration process is also sometimes challenged on the grounds that
an arbitrator lacked impartiality. Any such challenge generally can be maintained only after the
arbitration has been concluded, as courts are reluctant to interfere with the arbitration process
before an award has been rendered.
The arbitration process is governed by the rules agreed to in the arbitration agreement; otherwise,
the procedure is determined by the arbitrators. The arbitration proceedings must be conducted so
as to afford the parties a fair hearing on the basis of equality. The arbitrator generally has the
authority to request the parties and third persons to produce documentary evidence and to
enforce such a request by issuing subpoenas. If a party fails to appear at a
properly convened hearing without showing a legitimate cause, the arbitrator in most instances
can proceed and render an award after investigating the matter in dispute.
Under the law and arbitration practice of most countries, an award is valid and binding upon the
parties when rendered by a majority of the arbitrators unless the parties expressly request a
unanimous decision of the arbitrators. The statutory law of various countries and the rules of
agencies administering commercial arbitration contain provisions on the form, certification,
notification, and delivery of the award, with which requirements the arbitrator has to comply.
Appeals to the courts from the award cannot be excluded by agreement of the parties, since the
fairness of the arbitration process as a quasi-judicial procedure has to be maintained. However,
any court control is confined to specific matters, usually enumerated in the arbitration statutes,
such as misconduct of the arbitrator in denying a party the full presentation of its claim or
refusing a postponement of the hearing for good cause. A review of the award by a court
generally does not address the arbitrator’s decisions as to facts or his application of the law. The
competence of the courts usually is restricted so as not to make the arbitration process the
beginning of litigation instead of its end. Recognition of an award and its enforcement will be
denied when it appears to be contrary to public policy. An arbitration award has the authority of
a court decision and may be enforced by summary court action according to the procedural
law of the country in which execution is being sought.
Labour arbitration
Labour arbitration—the reference of disputes between management and labour unions to an
impartial third party for a final resolution—is usually the last step under a collective-
bargaining agreement after all other measures to achieve a settlement have been exhausted.
Unlike commercial arbitration, labour arbitration is not an auxiliary avenue of justice and thereby
a substitute for ordinary court procedure. It is also a technique used for settling or avoiding
strikes.
Two major aspects of labour arbitration are usually distinguished: arbitration of rights and
arbitration of interests. Arbitration of rights refers to the arbitration of an existing
labour contract when a dispute over its application arises between labour and management.
Arbitration of interests refers to arbitration between labour and management during the
negotiation of a new labour contract.
Arbitration of rights
Arbitration of rights under the terms of a collective-bargaining agreement is employed in
the United States far more frequently than in most other countries. Outside the United States,
labour courts, industrial courts, or conciliation and arbitration commissions perform the function
of arbitrating rights. These bodies usually are appointed by the government, and recourse to them
is frequently compulsory.
More than 90 percent of the collective-bargaining agreements in the United States provide for
arbitration as a last step in the grievance procedure. For example, employees, through their
union, may present for arbitration complaints concerning such matters as discipline, discharge,
and violations of working conditions. Other issues frequently submitted to arbitration
customarily concern premium payments and incentive rates, overtime and vacations, holiday
bonuses, seniority rights, and fringe benefits, such as pension and welfare plans.
The arbitrator’s decision must be based on the collective-bargaining agreement, which provides
for the application of an existing contract to the grievance presented. The arbitrator, not the
court, usually is responsible for determining whether the various steps in the grievance procedure
have been complied with before the initiation of the arbitration process. However, the question of
whether the disputed issue is covered by the collective-bargaining agreement is determined by a
court and not by the arbitrator. In the United States, this authority of the courts was upheld by
the Supreme Court in 1960.
The choice of arbitrator is made either by naming him in the agreement or, more often, by
leaving the choice open until a dispute has arisen. Frequently, only a single arbitrator is
appointed—usually an expert in the field of industrial relations. Alternatively, tripartite
arbitration boards can be established, with each party appointing its own arbitrator, who acts
somewhat as an advocate. A neutral chairman is selected either by the parties or by the two
party-appointed arbitrators.
Labour arbitrators render binding decisions and are not bound by strict rules of court procedure,
especially as regards burden of proof and the presentation of evidence. Arbitrators have the
power to subpoena persons and written evidence. They tend to evaluate factual evidence rather
freely and often reduce penalties imposed upon employees by the management for breach of the
labour contract. In order to establish precedents in the operation of the plant, even minor
questions, such as the use of company time by employees for breaks, are submitted to arbitration.
However, arbitrators generally are not bound to follow previous decisions. Decisions of labour
arbitrators are seldom reviewed by the courts, as awards are usually fully complied with by both
parties.
Arbitration of interests
Arbitration of the terms of a new contract, referred to as arbitration of interests, may be instituted
if management and the labour union are unable to agree on a new contract. However, in most
countries, management and union are seldom inclined to resort to lockouts and strikes in an
attempt to obtain favourable new contracts, and interest arbitration is thus rarely used.
Compulsory arbitration, directed by legislative fiat, has been a controversial issue in the
settlement of industrial disputes. It has been favoured in disputes in the transportation industry,
which may involve great public inconvenience, and in disputes in the public-utilities sector when
an immediate danger to public health and safety might occur. Compulsory arbitration has been
declared unconstitutional in some states of the United States, though it has been adopted as a
regular procedure for the settlement of disputes with municipal employees in some U.S. cities.
International arbitration
Controversies between sovereign states that are not settled by diplomatic negotiation or
conciliation are often referred, by agreement of both parties, to the decision of a third
disinterested party, who arbitrates the dispute with binding force upon the disputant parties. Such
arbitration between states has a long history; it was used between city-states in ancient
Greece and also in the Middle Ages, when the pope often acted as the sole arbitrator.
Historical development
The modern development of international arbitration can be traced to the Jay Treaty (1794)
between Great Britain and the United States, which established three arbitral commissions to
settle questions and claims arising out of the American Revolution. In the 19th century, many
arbitral agreements were concluded by which ad hoc arbitration tribunals were established to
deal with specific cases or to handle a great number of claims. Most significant was the Alabama
claims arbitration under the Treaty of Washington (1871), by which the United States and Great
Britain agreed to settle claims arising from the failure of Great Britain to maintain its neutrality
during the American Civil War.
Commissions consisting of members drawn from both disputant countries (“mixed arbitral
commissions”) often were used in the 19th century to settle pecuniary claims for the
compensation of injuries to aliens for which justice could not be obtained in foreign courts. Such
was the purpose of a convention in 1868 between the United States and Mexico, by which claims
of citizens of each country arising from the Civil War were settled. Boundary disputes between
states were also often settled by arbitration.
International arbitration was given a more permanent basis by the Hague Conference of 1899,
which adopted the Hague Convention on the pacific settlement of international disputes, revised
by a conference in 1907. The convention stated:
International arbitration has for its object the settlement of disputes between States by judges of
their own choice and on the basis of respect for law. Recourse to arbitration implies an
engagement to submit in good faith to the award.
Twenty cases were arbitrated between 1902 and 1932, but from that year until 1972 only five
cases were dealt with, largely because the importance of the Permanent Court of Arbitration
was diminished by the establishment of the Permanent Court of Justice (1922) and its successor,
the International Court of Justice. More recently, the International Court of Arbitration
(established in 1923), which was originally devised for the settlement of disputes between states,
has offered its services for the arbitration of controversies between states and individuals or
corporations. By the beginning of the 21st century, the court had arbitrated more than 10,000
disputes.
There are great impediments to the acceptance of international arbitration, especially in cases in
which disputes between governments and foreign private parties are involved. In such cases the
state will often insist that its own local remedies—administrative and court proceedings—have
been exhausted. Generally, the government of the national who advances a claim against a
foreign government will require evidence that the injured party has pursued all remedies in the
foreign country before it presses a claim for international negotiation and adjudication.
Contracting parties may agree in their contract that they need not exhaust local remedies before
resorting to arbitration. The Convention on the Settlement of Investment Disputes (1965) states:
Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be
deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State
may require the exhaustion of local administrative or judicial remedies as a condition of its
consent to arbitration under this Convention.
An award rendered by an arbitral tribunal is customarily complied with by states. In fact, unless a
state is prepared to comply with an adverse decision, it generally will not submit the dispute to
arbitration. The difficulties in the use of international arbitration thus consist less in the
enforcement of arbitral awards than in persuading states involved in disputes to submit them to
arbitration.
When this concept is applied to HRM, it means that organizations are expanding their operations
across borders, hiring talent from various parts of the world. Globalization in HRM involves
adapting HR practices to suit international hiring, such as:
Managing a global workforce,
Dealing with cultural differences,
Adhering to diverse employment and labor laws.
Genie Definition 1
Commercial Relationship means a contractual or non-contractual connection between
[organization] and another party, related to profit-oriented activities or transactions.
Relevant Contract Types
Service Agreement
Partnership Agreement
Joint Venture Agreement
Distribution Agreement
Supply Contract
Consulting Agreement
Relevant Circumstances
Establishing new partnerships
Expanding business operations
Engaging service providers
Relevant Sectors
Technology Sector
Manufacturing Sector
Retail Sector
Construction Sector
Genie Definition 2
Commercial Relationship means a marketing agreement between [organization] and a partner,
involving a contractual obligation of payment or barter by [organization].
Relevant Contract Types
Marketing Agreement
Advertising Agreement
Affiliate Agreement
Relevant Circumstances
Engaging a marketing agency
Outsourcing advertising activities
Initiating a barter deal
Relevant Sectors
Marketing Sector
Advertising Sector
Media and Entertainment Sector
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Commercial Relationship means a contractual or non-contractual connection between
[organization] and another party, related to profit-oriented activities or transactions.
Effective communication, loyalty, and trust can foster a successful business relationship.
Subsequently, it motivates employees' performance, satisfies their needs, and improves their
overall job satisfaction. Moreover, an established business relationship between all stakeholders
promotes unity of direction, a positive corporate culture, and variables that help develop a
competitive edge.