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In 2011, the new Arbitration Ordinance took effect in Hong Kong. This paper aims to discuss the new features on maritime arbitration.
Abstract
Purpose
In 2011, the new Arbitration Ordinance took effect in Hong Kong. This paper aims to discuss the new features on maritime arbitration.
Design/methodology/approach
The relevant provisions of the Arbitration Ordinance 2011 and the legal cases are examined.
Findings
Hong Kong is a first class maritime arbitration centre in the Asia Pacific Region.
Originality/value
This paper is one of the very few general reviews of the maritime arbitration under the Arbitration Ordinance 2011.
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Valentine George Mruma Luvara and Moses Benjamin
Most construction projects are undertaken with the incentive of some form of profit which in business attracts disputes that key disputing parties intend to resolve through…
Abstract
Purpose
Most construction projects are undertaken with the incentive of some form of profit which in business attracts disputes that key disputing parties intend to resolve through mechanisms such as arbitration as early as possible so that they may advance with other activities associated with the project. However, this intention is regularly unfulfilled, disappointing the parties with late arbitration resolution. This study, therefore, explored the duration influencing factors (DIFs) facing arbitration practice in the Tanzania construction industry.
Design/methodology/approach
A concurrent convergence mixed methods approach was used where a total of 12 DIFs were identified from the literature, and data were then collected from 39 construction arbitrators, 8 semi-structured interviews and 4 documentary reviews. Descriptive and inferential statistics were employed for quantitative data and directed content analysis for the qualitative data.
Findings
Results show that contrary to most people’s convictions, delays in arbitration are regularly caused by the disputing parties rather than the arbitrating party or the authority. The study identified cooperation amongst the tribunal parties, poor accuracy and submission of documents and material evidences, late payment of arbitration fees, and skills, experience, reputation and profession of the arbitrator to be the most critical factors that cause late arbitration resolution.
Originality/value
The use of mixed methods concurrent triangulation convergence approach provides a unique contribution to knowledge by highlighting how the efficacy of arbitration in time performance could be further developed through understanding the critical factors that drive the proceedings duration in the Tanzania construction industry.
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With the rise of employer-promulgated mandatory employment arbitration, scholars have become concerned that these policies may reduce the economic viability of lower value…
Abstract
With the rise of employer-promulgated mandatory employment arbitration, scholars have become concerned that these policies may reduce the economic viability of lower value employment claims. Of particular worry are claims made under the Fair Labor Standards Act since the FLSA does not include punitive damages. This study empirically tests the relationship between 368 Fortune 1000 companies’ employment arbitration policies and their wage and hour violations discovered during the Department of Labor inspections. Surprisingly, firms that used arbitration were found to have fewer violations and lower back wages for those violation compared to firms that did not use arbitration. This suggests that viewing arbitration merely as a cost-reduction tool may cast the practice too narrowly and instead it may be part of a larger conflict management system that seeks to address conflict at the earliest possible stage.
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João Vidal, João Albino Silva and Guilherme Castela
This chapter addresses the issue of arbitration in tourism from the perspective of litigation. International tourism requires two or more legal systems to solve a given problem…
Abstract
This chapter addresses the issue of arbitration in tourism from the perspective of litigation. International tourism requires two or more legal systems to solve a given problem, which creates great complexity. To diminish this effect, organizations have been encouraged to use arbitration instead of courts, and thus, it is necessary to measure its effect on them. The analysis used the Biplot methodology, a multivariate technique in the context of reduced dimensionality. The results obtained indicated that tourism demand and supply were willing to pay for arbitration, but the latter erroneously considered the former unwilling to pay. This chapter suggests that tourism companies can raise the price of their products to increase their profit.
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This chapter investigates attributes of an unexplored actor in the contemporary industrial relations system – plaintiff-side employment attorneys – and the premise that…
Abstract
Purpose
This chapter investigates attributes of an unexplored actor in the contemporary industrial relations system – plaintiff-side employment attorneys – and the premise that pre-dispute mandatory employment arbitration expands employee access to justice.
Methodology/approach
It presents data from a novel survey of 1,256 employment plaintiff attorneys and the universe of employment disputes administered by the five largest arbitration providers in the United States.
Findings
I report multiple measures indicating employment lawyers hold negative views of arbitration and that arbitration acts as a barrier to employee access to justice: A majority of attorneys say employment arbitration clauses have a positive impact on their willingness to reject a case for representation and a negative impact on their willingness to accept a client under a contingency-fee arrangement, and report negative perceptions of the fairness of outcomes and the adequacy of due process protections in arbitration relative to litigation. Furthermore, attorneys report accepting potential clients covered by arbitration agreements at half the rate of potential clients able to sue in court. Finally, arbitration and litigation filing statistics reveal no evidence that low-income or low-value claimants or claims are accessing the arbitration forum.
Originality/value
Novel data compiled here illuminate the institutional characteristics of plaintiff-side employment lawyers and the arbitration forum. They question the assertion that arbitration is an accessible dispute resolution forum for employment disputes relative to civil litigation.
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Aibak Hafeez and J. Ryan Lamare
We examine how different neutral sources and third-party neutral qualification differences relate to mediation and arbitration usage at large US firms. Neutral sourcing is…
Abstract
We examine how different neutral sources and third-party neutral qualification differences relate to mediation and arbitration usage at large US firms. Neutral sourcing is controversial, particularly in employment arbitration, where many have expressed concern that unregulated sourcing arrangements may bias outcomes in favor of employers. We use agency and structure theories to hypothesize that firms will be less likely to use mediation when the neutral is sourced as a result of court-annexed mediation, but that firms may be more likely to use arbitration when the neutral is sourced from a private third-party provider. Utilizing human capital theory, we also hypothesize that organizations will use both mediation and arbitration more frequently when neutrals are perceived to be more highly qualified. Empirically, we rely on data gathered from a survey of US Fortune 1000 corporations to test these hypotheses and find support for each of them. Our results suggest that, while firms uniformly value professionalization in their neutrals, employers may impose structures on themselves in high-stakes circumstances like arbitration to ensure standardized and consistent processes, but prefer agency in lower-stakes circumstances like mediation.
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Cary Deck and Amy Farmer
Arbitration is often used to settle bargaining disputes. Frequently in such disagreements, one party has better information with respect to the surplus to be allocated. This paper…
Abstract
Arbitration is often used to settle bargaining disputes. Frequently in such disagreements, one party has better information with respect to the surplus to be allocated. This paper considers the impact that the choice of dispute resolution mechanism, conventional or final offer arbitration, has on settlement. This paper shows that theoretically final offer arbitration can systematically favor the informed party by shifting the contract zone towards more profitable allocations while conventional arbitration is theoretically less likely to generate a mutually agreeable settlement. Laboratory results find that the surplus shares are consistent with the predicted favoritism. However, settlement is positively correlated with the width of the contract zone and the data suggest that the location of the contract zone in final offer arbitration generates more disputes.
Sara Slinn and Richard W. Hurd
First contract arbitration (FCA) provisions are posed as a solution to the difficulties of negotiating a first contract for newly certified bargaining units. FCA is a…
Abstract
First contract arbitration (FCA) provisions are posed as a solution to the difficulties of negotiating a first contract for newly certified bargaining units. FCA is a longstanding, and no longer controversial, element of Canadian labor legislation. FCA provisions now exist in six Canadian jurisdictions and four distinct FCA models have developed (the exceptional remedy or fault model, the automatic access model, the no-fault model, and the mediation intensive model). In the United States the Employee Free Choice Act (EFCA) included a highly contested proposal to amend the National Labor Relations Act (NLRA) to include an FCA provision similar to the Canadian automatic access model. This chapter offers a balanced assessment of FCA evidence from Canada addressing the main objections to FCA in the EFCA debates. Individual case level data from jurisdictions representing each of the four FCA models is examined. The evidence demonstrates that although FCA is widely available in Canada, it is an option that is rarely sought and, when sought, rarely granted; that parties involved in FCA are able to establish stable bargaining relationships; and, that this process does not, as critics charge, simply prolong the life of nonviable bargaining units. This chapter concludes by suggesting that the practice under Quebec's “no-fault” model and British Columbia's “mediation intensive” model merit consideration for adoption elsewhere. These models position the FCA process as a mechanism fostering collective bargaining and voluntary agreements, rather than treating it as a remedy for dysfunctional negotiations and as part of the unfair labor practice framework.
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This chapter analyzes the extent to which more experienced employers, arbitrators, and attorneys fare better in securities industry arbitration. Although studies into experience…
Abstract
Purpose
This chapter analyzes the extent to which more experienced employers, arbitrators, and attorneys fare better in securities industry arbitration. Although studies into experience have identified a so-called repeat-player effect on outcomes, I argue that more nuanced considerations of experience are required.
Methodology/approach
I empirically analyze all employment arbitration awards from the securities system’s inception through 2008. I separate experience into two categories (between- and within-group effects) and run hybrid random- and fixed-effects regressions modeling increasing employer, attorney, and arbitrator experience on arbitration outcomes.
Findings
I find that between-group experience affects awards but that within-group experience is nonsignificant, except in civil rights cases. This implies that so-called repeat players gain an advantage over inexperienced players due to their entity-specific characteristics, not necessarily by learning to use the system to their advantage. I conclude that, although the securities arbitration system suffers from power imbalances, there is little evidence of systemic exploitation by firms.
Originality/value
Prior studies into employment arbitration are limited both by their definitions of experience and by their methodological approaches. I overcome these issues by employing a novel methodological approach to measure between- and within-entity experience, which adds a more multifaceted and nuanced framework to the literature than the common repeat-player versus single-player dichotomy.
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Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way…
Abstract
Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way of using the law in specific circumstances, and shows the variations therein. Sums up that arbitration is much the better way to gok as it avoids delays and expenses, plus the vexation/frustration of normal litigation. Concludes that the US and Greek constitutions and common law tradition in England appear to allow involved parties to choose their own judge, who can thus be an arbitrator. Discusses e‐commerce and speculates on this for the future.
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