ARBITRATION OF INDIVIDUAL LABOR DISPUTES IN BRAZIL AND JAPAN: A COMPARATIVE ANALYSIS

Guilherme Sampieri Santinho,Tiago Andreotti E Silva

doi:10.33239/rtdh.v2i2.56

Abstract

The way labor rights disputes are solved in Japan and Brazil in the last two decades has changed. New laws and interpretation have been challenging the way labor arbitration functions. In 2004, Japan passed the judicial labor tribunal system; in 2017, Brazil enacted the use of private arbitration under individual contracts, in addition to the provision in the 1988 Brazilian Federal Constitution allowing for the use of arbitration for collective contracts. There are common themes and comparative contrasts in the uses of arbitration in each country. They may use governmental and/or private structures to house dispute settlement processes of individual and/or collective labor disputes. However, there also are some differences, with Japan keeping the processes largely under governmental regulation and institutions, whereas Brazil provides legal authority to privatize much of the labor and employment law dispute resolution processes. The use of arbitration to settle labor rights disputes in Brazil and Japan, while having different approaches, have similar themes. Understanding their functionalities may present an opportunity for both countries to choose the best practices regarding these different dispute resolution structures. This Article compares the arbitration models in labor disputes in Japan and Brazil, providing guidance for possible improvements of the current systems.

Highlights

LABOR ARBITRATION IN BRAZILBrazil is known to have a litigation culture. This is acknowledged even by the current Brazilian Supreme Court President, José Antônio Toffoli[4]
The way labor rights disputes are solved in Japan and Brazil in the last two decades has changed
The labor reform was seen as an opportunity to create legislation that would expressly allow for individual labor arbitration, inserting article 507-A in the Consolidation of Brazilian Labor Laws (CLT), which states: Art. 507-A In individual labor contracts where the remuneration is above twice the limit established for the General Social Security System benefits, an arbitration clause may be agreed, as long as by the initiative of the employee or with his express agreement, according to Law n. 9.307, of September 23, 1996.11

Summary

LABOR ARBITRATION IN BRAZIL

Brazil is known to have a litigation culture. This is acknowledged even by the current Brazilian Supreme Court President, José Antônio Toffoli[4]. For arbitration to be valid, it had to be initiated by the employee or with his express agreement This provision was vetoed by the Brazilian President at the time, with the argument that there would be an unequal difference among workers.[10]. The labor reform was seen as an opportunity to create legislation that would expressly allow for individual labor arbitration, inserting article 507-A in the Consolidation of Brazilian Labor Laws (CLT), which states: Art. 507-A In individual labor contracts where the remuneration is above twice the limit established for the General Social Security System benefits, an arbitration clause may be agreed, as long as by the initiative of the employee or with his express agreement, according to Law n. While this is not clearly established, arbitration still not is a safe dispute resolution system, either for the employers as for the employees

LABOR ARBITRATION IN JAPAN

Findings

CONCLUSION