Dispute Procedures Research Articles

Application for Leave to Appeal: Charter Committee on Poverty Issues in Council of Canadians et al. v. Canada (Supreme Court of Canada)

This case concerns whether the investor- state adjudicative regime established by Chapter 11 of the North American Free Trade Agreement (“NAFTA”) respects the requirements of the Canadian Charter of Rights and Freedoms and the principle of constitutionalism. It raises the critical and unresolved question of whether the Charter requires the government to ensure that Charter rights are protected when it negotiates and implements new adjudication regimes under international agreements which impact on Charter rights. Though NAFTA tribunals cannot be expected to incorporate the Charter in their decision-making, the Executive action of negotiating the terms of treaties and international agreements is subject to judicial review for accordance with the Constitution. The present argument is not premature for lack of showing that a particular Chapter 11 tribunal decision impairs the constitutional or Charter rights of any individual Canadian. CCPI argues that the Chapter 11 adjudicative regime itself fails to respect the requirements of sections 7 and 15, by failing to ensure that Charter rights and values are adequately considered and protected. Investor-state adjudication frequently engages issues related to personal security or health, which have not been excluded from the scope of section 7. The threat of adjudication significantly affects government policy. Investor-state tribunals do not have the authority or competence to consider how their adjudication may impact section 7 interests. The Court has recognized in the Charter context that monetary awards and settlements against governments for public policy undertaken in good faith can interfere with the efficient functioning of government and reduce governments’ ability to provide social and health programs and services. Investor-state tribunals are under no obligation to consider or balance competing social interests in granting compensatory damage awards, even when Charter interests such as the right to health are engaged. Delegation of such unconstrained adjudicative authority to investor-state tribunals without ensuring that the rights to life, liberty and security of the person will be adequately protected amounts to a violation of section 7. The violation is not in accordance with the principles of fundamental justice, as the adjudication process has not been crafted to ensure that domestic and international human rights are taken into account in investor-state adjudication. NAFTA Chapter 11 does not meet the basic procedural requirements of fundamental justice, as individual Canadians whose rights are affected do not have as-of-right standing in investor-state disputes. Section 1 serves as an important balance between all the rights at stake. A NAFTA Chapter 11 challenge allows for no such balancing. The NAFTA Chapter 11 regime cannot be justified under the Oakes test. If the goal of promoting foreign investment in Canada and protecting Canadian investment elsewhere is deemed sufficiently important, there is no connection between levels of foreign direct investment and the existence of investor-state dispute procedures. CCPI submits that the Supreme Court should issue a delayed declaration of invalidity.

Settlement of Disputes Procedure and Arbitration under FIDIC

Settlement of Disputes Procedure and Arbitration under FIDIC

The WTO dispute settlement system

William J. Davey served as the Director of the Legal Affairs Division of the World Trade Organization between 1995 and 1999. In this note he reviews the first four years of WTO dispute settlement and gives some of his preliminary judgments about the new WTO dispute procedures. Copyright 2000 by Oxford University Press.

Chinese enterprise reform, human resources and the 1994 Labour Law

Chinas Open Door policy had led to a massive influx of foreign investment. Extensive reforms have accompanied the modernization process in order to institutionalize the rule of law in economic relations, as in other marketed economies. As the PRC attempted in turn to regulate human resources in its emergent labour market, the authorities enacted a new Labour Law in July 1994 (effective January 1995) comprehensively codifying legislation in all categories of enterprises whether state-owned, private, joint ventures or wholly foreign-funded, relating to employment rights, individual and collective contracts, redundancy, health and safety, dispute procedures and so on. This article sets out the new legal framework, its theoretical and practical justification, and critically assesses and evaluates its main features. It will clearly be of interest to HRM practitioners involved or considering involvement in joint ventures or wholly foreign-funded enterprises in the PRC, for example.

WTO Dispute Procedures, Standard of Review, and Deference to National Governments

Increasing international economic interdependence is obviously becoming a growing challenge to governments, which are frustrated by their limited capacities to regulate or control cross-border economic activities. Many subjects trigger this frustration, including interest rates, various fraudulent or criminal activities, product standards, consumer protection, environmental issues and prudential concerns for financial services. Although it has been said that “all politics is local,” it has also been said, with considerable justification, that “all economics is international.”

The settlement of disputes under the Protocol on Environmental Protection to the Antarctic Treaty

ABSTRACTSince the Antarctic Treaty came into operation, Antarctic affairs have been characterised by international cooperation. The major issues of potential conflict, namely sovereignty, military activity, and mining, have now been largely removed. As a result, the remaining disagreements between parties have been resolved through consultation and negotiation. No dispute has ever found its way to judicial settlement, with most disagreements usually resolved at an early stage through ATCMs. While there is no reason to suspect that the use of consultation and negotiation will not continue, with the introduction of far more comprehensive measures for the protection of the Antarctic environment, combined with the significant increase in activity in and around the continent, there is a greater likelihood of situations occurring that clearly breach these principles or give rise to a dispute. In addition, where extensive damage to the environment has already occurred, negotiation may be limited, so that the other mechanisms for settling disputes must be instituted. The dispute procedures of the Protocol, taken almost entirely from CRAMRA, represent the most comprehensive system for the peaceful settlement of disputes arising in any Antarctic instrument to date. However, clear problems such as remedies, enforcement, and uncertainties with respect to standing and liability remain. Until these problems are resolved, all aspects of all disputes cannot be covered, and comprehensive protection of the Antarctic environment specified in the Protocol will remain an objective, not a reality.

The uruguay round: in whose interests?

The Briefing reviews the implications of the new World Trade Organisation (WTO), which replaces GATT (General Agreement on Tariffs and Trade), for Africa's place in international trade. In particular, it is suggested that the WTO, and the new disputes procedure, are unlikely to improve Africa's relative position in the world capitalist system and may, in some important respects, even undermine it.

Collective Bargaining and the Emergence of National Employer Organisation in the British Shipbuilding Industry

SUMMARYThe article takes shipbuilding as a case study in the development of collective bargaining in Britain during the period 1889–1910. During the period shipbuilding employers established an effective national organisation and were successful in drawing the unions into an industry-wide disputes procedure. These developments occurred notwithstanding marked differences in outlook and interest as between the two main centres of activity in the industry, the Clyde and the northeast coast. The more militant posture of the Clyde employers towards the unions is examined in relation to a number of key issues – the apprentice and machine questions, managerial prerogative, wage control. In interpreting the general nature of the transition that occurred in the industry's labour relations, the article questions the view that the move to national bargaining was associated with a general commitment to the joint regulation of employment rules. It further suggests that the general level of employer acceptance of trade unionism may have been less than is sometimes assumed. These conclusions may well have a significance beyond the case in question.

MTM Application in Electro‐mechanical Assembly

Examines the development of a new MTM application for a company supplying products to the medical industry, prompted by moving to a new site. Discusses measurement procedure, dispute procedure, recording techniques, MTM system choice, element coding, and the computer application used. Concludes that the constraints on the system has entailed building up groups of data which are capable of covering a wide range of work.

Strikes, Dispute Procedures, and Arbitration: Essays on Labor Law.

Strikes, Dispute Procedures, and Arbitration: Essays on Labor Law.

Book Review: Labor and Employment Law: Strikes, Dispute Procedures, and Arbitration: Essays on Labor Law

Book Review: Labor and Employment Law: Strikes, Dispute Procedures, and Arbitration: Essays on Labor Law

Strikes, Dispute Procedures, and Arbitration: Essays on Labor Law

This penetrating essay collection focuses on the development of dispute procedures in the United States and the legal rules surrounding them. Considered are such enduring matters as unauthorized and wildcat strikes, enforcement of the no-strike obligation, and strikes involving government and industries with an emergency potential. Many of the problems that have perplexed the Supreme Court in recent years, such as sympathy and political strikes, are also examined. Other issues that have not yet been fully confronted by the Supreme Court are also discussed, including the right of labor organizations to limit a union member's right to resign during strikes or other economic conflict. Throughout the volume, the author embraces the fundamental right of the individual to withhold labor and engage in economic pressure. At the same time, he stresses the importance of developing peaceful negotiating procedures, alternatives to the strike, and law which is supportive of such policies.

The Hancock Report and Workplace Industrial Relations

Workplace industrial relations are growing in importance. The extent of plant bargaining and the scope of the industrial relations agenda at that level have developed markedly over the recent past. Such a development risks the growth of an unregulated informal system of industrial relations. While the Hancock Report recognizes the need for more formal dispute and grievance procedures, it does not adequately deal with the problems arising at workplace level. This paper argues for a broad policy of formalized relationships at workplace level by various means but not through legislation.

Legally Enforceable Peace Obligations, Trade Union Mediation and Workshop Industrial Action

This article introduces to the literature of industrial conflict an examination of the relationship between legally enforceable disputes procedures and the comparatively low incidence of workshop industrial action in Sweden and Germany. The author suggests that the experience in both countries indicates that the existence of a trade union commitment to an organizational strategy which limits workplace industrial action in exchange for returns from other levels of bargaining is an important factor explaining both the effect of the social institutions and the legal norms which attempt to reinforce them.

THE INCORPORATION OF THE COLLECTIVE AGREEMENT INTO THE INDIVIDUAL CONTRACT OF EMPLOYMENT

In an article entitled “Collective Bargaining — a theoretical analysis” A. Flanders defined collective bargaining as an “…institution for the joint regulation of labour management and labour markets.” The collective agreement, the result of the collective bargain, is normally an uninforceable contract and is a very different legal notion from that of the contract of employment. The function of the collective agreement is to regulate relations between the collective parties, that is between the employer's association or an individual employer, and a union or unions. Such relations are known as relations of a collective nature. They could include procedure agreements between the collective parties in relation to no‐strikes or other industrial action before the disputes procedure has been exhausted; matters to do with the structure of negotiations between the parties; the constitution of the bodies set up for collective bargaining purposes; procedures on re‐ negotiation of the collective agreement; and so on. The collective agreement has however another function, the individual function, which regulates relations between employer and employee. Terms and conditions of employment are usually regulated by the collective agreement. Thus pay scales, hours of work, holidays, wages during illness, overtime work, any matters relating to training, re‐training, apprenticeship, are some from among the numerous subjects to be found in conditions of employment. Procedures which relate to the individual employee, such as grievance and disciplinary procedures, may equally feature as part of the terms and conditions of employment which emanate from the collective agreement. Indeed statute requires that the employer gives his employee particulars of this latter's major terms and conditions of employment.

Processes of dispute management among urban black children

This paper investigates the forms and functions of alternative dispute procedures as well as distinctive operating cultures that account for them among urban black working‐class children. It is found that children strategically manage the social organization of a dispute through the selection of particular argument formats. In conducting argumentative exchanges, children display a range of communicative competencies and collaborate in performing highly orderly negotiations of power. [conversation analysis, child language, social organization, legal anthropology, Black English Vernacular]

Local disputes procedure agreed

Local disputes procedure agreed

Disputes procedure

Disputes procedure

A panic measure with hidden hazards

The first important strike in the NHS was in 1968 when medical laboratory technicians stopped work for one day over a pay dispute. Two years later elec tricians took industrial action and since then almost all the major groups of Health Service employees?in cluding doctors and nurses?have taken part in some form of protest action. So from perhaps the most quiescent and undeveloped industrial relations system among State enter prises the NHS has become one of the most active and strike prone in Britain. Though the widespread national disputes over pay that oc curred last winter may be more memorable, the most typical strike is localised, unofficial, and usually focused on issues quite unconnected wTith pay. Because local disputes of this kind were becoming common place the former Secretary of State for Social Services, Mr David Ennals, took the initiative of calling a round table conference of those who were principally concerned?repre sentatives of the unions (including the BMA) and the manage ment.1 The conference discussed whether agreement could be reached on a new NHS disputes procedure which would cut to a minimum the number of disputes that led to unnecessary industrial action. Afterwards, in October 1978, the DHSS published details of a proposed procedure.This was designed to cover local disputes and problems other than those concerned with pay. The DHSS statement gave as examples of the issues to be covered : duty rotas, staffing levels on the wards, arrange ments for parking bicycles, or even personality clashes between staff. In short, it was intended to cover a wide range of residual matters outside the Whitley Council system, most of which had been traditionally decided by management without any kind of formal consultation or negotiations with representatives of the staff affected. Since the round table initiative the proposed local disputes procedure has been under negotiation by unions and manage ment. While some differences of opinion remain, the manage ment and the staff sides agree on the basic guidelines. Some of these are unexceptionable. It is proposed, for example, that disputes should be resolved at the lowest possible operational level with the minimum of delay; and that there should be an agreed four-stage procedure for referring the dispute upwards if the local manager cannot resolve it, firstly, to the next layer of management, then to the chief officer of the employing authority, and finally to the employing authority. Such disputes procedure is a common feature of industrial relations machinery in other organisations and industries. The proposed procedure also contains what is commonly known as a status quo provision. This requires that the arrangements extant before the dispute should be reintroduced until the dispute has been resolved? namely, the unions should withdraw sanctions and the manage ment should unscramble any change in working practices it had introduced. The intention is to provide a conciliatory climate in which the dispute may be resolved.

Crisis Mediation – A Case of Success and Failure

The ASOL Case In this section we will outline an actual case, highlighting some key issues in mediation. In this particular case one of the authors was invited to help resolve an industrial dispute which had lasted three months. An operative to whom we shall refer as JS was dismissed for allegedly leaving factory premises during work hours without permission. During the intervening three months the operatives' union contested the issue and all stages of the formal disputes procedure were exhausted.