The dynamic social and economic conditions in Namibia warranted a periodic review of labour legislation. Given these needs, uhe then Ministry of Labour, undertook a project in 1998, to assess the effectiveness of the first post kndependence Labour Act, 1992 (Act No 6 of 1992) a trirartite task force was established which recommended the amendment of the 1992 Act. This led to the enactment of the Labour Act, 2004 which introduced a new system of dispute prevention and resolution. However, the 2004 Act could not be put into effect in its entirety, because of its technical flaws and the fact that the Namibian Employers Federation (NEF) took issue with some of the provisions of the Act, such as leave provisions. In 2005, the Ministry of Labour and Social Welfare with its social partners undertook a complete technical review of the entire 2004 Act. As a result, In 2007, the new Labour Bill 2007 was tabled in Parliament, which eventually adopted it as the Labour Act, 2007 (Act No 11 of 2007) which became operational on the 1st November 2008. The new Labour Act, 2007 (Act No 11 of 2007) brings in sweeping changes to the familiar terrain of labour law and industrial relations practice in Namibia. The new Act, has done aware with the District Labour Court system, in its place comes the Labour Commissioner. The rudimentary dispute- settlement mechanisms of the old (first ) Labour Act, 1992 ( Act No 6 of 1992) have made way for the more sophisticated, yet speedier and more economical system of alternative dispute resolution through arbitration and conciliation by the Labour Commissioner. The Labour Act, 2007, requires parties to the labour dispute to seek conciliation before either taking industrial action or seeking adjudicative solutions to the dispute. Not only does the Labour Act, establish or makes provision for the appointment of the Labour Commissioner to provide for dispute resolution, it also permits parties to establish their own process for dispute resolution through a private arbitration route. Faced with this daunting array of untested rules and institutions, I have approached the writing of this work with some trepidation. My aim is to provide a thoroughgoing commentary on the provisions relating to dispute resolution. In the absence of much authoritative interpretation, I had to rely heavily on past practices and foreign South African precedents to identify the construction that judges and arbitrators are likely to arrive at. The present treatise provides a, comprehensive and integrated commentary for all involvement in the resolution of labour disputes in Namibia; it further provides rules and procedures which govern statutory disputes resolution through the Labour Commissioner. I sincerely hope that this paper, will prove useful to all those involved in labour law and industrial relations practice, as well as to teachers and students of this subject.

South Africa’s employment law has undergone more frequent and dynamic changes than any area of the law, in recent years. The ability of employers and employees to regulate their respective rights and duties vis-à-vis each other by independent agreement has been progressively whittled down by statutory intervention. In so limiting the capacity of parties to the employment relationship to regulate the nature of their relationship, South Africa has followed development in Western industrialised nations. Against this background, the drafters of the Labour Relations Act1 (LRA), as amended, proposed a comprehensive framework of law governing the collective relations between employers and trade unions in all sectors of the economy. The LRA2 created a specialised set of forums and tribunals to deal with labour and employment related matters. It established Bargaining Councils, the Commission for Conciliation Mediation and Arbitration (CCMA), the Labour Court (LC) and the Labour Appeal Court (LAC). It also created procedures designed to accomplish the objective of simple, inexpensive and accessible resolution of labour disputes. In redesigning labour law, the legislature decided that some disputes between employers and employees should be dealt with by arbitrators and others by judges. It is this distinction that resulted in the creation of the CCMA and the Labour Court to perform arbitration and adjudication respectively. The result of adjudication is generally subject to appeal to a higher court. The result of arbitration is generally subject to review. Arbitration was given statutory recognition in South Africa by the Arbitration Act3. That Act provides a framework within which parties in dispute may if they wish appoint their own “judge” and supply him or her with their terms of reference tailored to their needs. With the foregoing in mind, the purpose of this work is the provision of a selection of landmark cases that dealt with the review function of CCMA awards. This selection 1 Act 66 of 1995 as amended comprises of landmark judgments of the different courts of the land. The study uses, as it departure point, legislative framework to elicit the extent to which review is extended to the litigants. Apart from looking at the legislative provisions towards review grounds, reference is made to specific landmark judgments that have an effect on this subject in order to provide a comprehensive and explicit picture of how CCMA arbitration awards may be taken on review. This study focuses on substantive law developed by the Labour Court, High Court, Supreme Court of Appeal and finally the Constitutional Court. This is informed by the very nature and scope of the study because any concentration on procedural and evidentiary aspects of review could lead to failure to achieve the objectives of the study. It looks at specific South African case law, judgments of the courts and the jurisprudence in the field of employment law so that the reader is presented with a clearer picture of recent developments in addressing review of arbitration awards. The concluding remarks are drawn from a variety of approaches used by the authorities in the field of employment law in dealing with review of CCMA arbitration awards and issues for further research are highlighted.

In Europe of the Middle Ages, there existed an autonomous regime of truly private international business law based upon the customs and usages of merchants, the Law Merchant, administered in lay tribunals. The courts and legislators usurped the jurisdiction of the lay tribunals, and subverted the Law Merchant to municipal law. Arbitration was similarly subverted to municipal courts and strict legal controls. The courts continued to guard their jurisdiction jealously into the 20th century, when nations came to realize the inadequacy of national legal systems for international business problems, and the desire of business to escape parochial legal concerns and municipal courts. Canada adopted the New York Convention and UNCITRAL Model Law in 1986, which maximize party and arbitral autonomy and restrict court interference with arbitration. These new laws would permit the resurrection of an autonomous regime of international commercial dispute settlement largely divorced from national law and court controls, if the courts cooperate. This thesis is the first comprehensive, up-to-date study (of which I am aware) of Canadian case law on arbitration in the context of the history of autonomous commercial dispute resolution from the its zenith in the Middle Ages through its nadir, to its present attempted resurrection. This thesis shows that the courts of Canada continue to guard their jurisdiction jealously, finding the means in old notions and precedents to justify their refusal to cede jurisdiction to arbitrators. The courts have ignored the policies underlying the new laws, have failed to apply international precedents and standards, and have continued to apply notions and precedents from an era hostile to arbitration. / Law, Peter A. Allard School of / Graduate

No description available.

Thesis (M.Law) -- University of Limpopo, 2007 / Refer to document

Thesis (Ph.D. (Public Administration)) -- University of Limpopo, 2023 / Over the years, the South African Police Service (SAPS) has been recording the highest number of employee grievances in comparison to other government institutions in South Africa. Some of the grievances reported by employees remain unresolved. For these reasons, the primary aim of this study was to determine the causes of the high rate of grievances in the Pretoria policing area of the SAPS. To achieve the primary aim of the study, concurrent mixed methods were applied, in particular the survey questionnaire, interviews and document study. On the one hand, the SPSS version 26 software was used to analyse quantitative data collected through a survey questionnaire. On the other hand, qualitative content analysis was used to analyse data collected through interviews. The findings of this study illustrate that the common sources of grievances in the SAPS are promotions, unpaid leave, unfair treatment and rejection of application for transfers. The findings of this study confirmed that autocratic supervisory behaviour as a management factor is among the major factors that account for the high rate of grievances in the SAPS. The study has found that in the process of applying the grievance procedure to address grievances, the SAPS complied with timelines linked to each grievance phase only to a slight extent. In relation to the causes of unresolved grievances, the study found that the involvement of legal representatives in grievances, lack of impartiality of the part of grievance officers, the grievants’ failure to provide testimony and failure to gather adequate evidence pertaining to grievances contributed to the high rate of unresolved grievances. This study has, however, concluded that despite the challenges experienced in grievance handling, the SAPS has the capacity and resources to turn the situation around thereby ameliorating the current situation pertaining to grievances.

The Arbitration Review Board existed in the bituminous coal industry from 1974 to 1981. Established during the 1974 contract negotiations between the Bituminous Coal Operators Association and the United Mine Workers of America, the ARB represented an effort to obtain consistency in arbitration decisions. The ARB operated as an industry appellate board designed to hear appeals of arbitration awards, and the decisions of the ARB were contractually mandated as industry precedents requiring arbitrator compliance. Although the parties terminated the ARB in 1981, they have continued to incorporate the precedent decisions in subsequent contracts. This study utilizes both a qualitative assessment and an empirical analysis of arbitration decisions to determine the impact of the ARB on the arbitration process in the coal industry. Structured interviews were conducted with former ARB members, arbitrators, management representatives, and union representatives to gather information with which to construct a complete historical perspective of the ARB's inception, operation, and termination. A total of 44 individuals were interviewed. The empirical assessment involved a content analysis of 300 arbitration decisions to determine the extent to which arbitrators have adhered to the ARB precedents. Conclusions of the research suggest that the ARB has had a profound impact on coal industry arbitration. Arbitrators increasingly adhered to ARB decisions during its existence, and have continued to exhibit a high degree of adherence following the ARB's termination. The difficulties encountered in implementing the ARB and the factors contributing to its termination are discussed. / Ph. D.

Arbitration is central to the settlement of transnational commercial disputes. This dissertation discusses arbitration as an alternative method of dispute settlement as opposed to litigation. The work surveys the difficulties relating to international commercial arbitration and the enforcement of awards, and efforts made to overcome them. The research is divided into four chapters. The first chapter introduces the reader to the work. It gives a general background to international commercial arbitration and briefly explains what the dissertation is all about. Chapter two is definitional. It examines some of the definitions of international commercial arbitration and contains the author's thoughts on this issue. The author is of the view that the traditional definitions do not properly address the concept. It is concluded that the question whether an arbitration is international should largely depend on whether international norms are used to resolve the dispute rather than by reference to geographical considerations. This chapter also weighs the advantages and disadvantages of arbitration as against litigation. Chapter three deals with recognition and enforcement of awards. This is considered crucial since at the end of the day, parties to arbitration would want to enforce their awards in a court of law, in the event of non-compliance. Since the award might be made in a foreign country, enforcement may be problematic. The chapter examines efforts made in intemational and domestic law to overcome such problems and achieve enforceable awards. A selection of multi-lateral, regional and domestic laws is examined. This chapter also discusses problems of enforcing awards against states and steps taken to overcome them. The final chapter deals with general conclusion and suggestions. It is suggested that efforts should be made to harmonise international commercial arbitration. This can be achieved both in domestic and international law. / Jurisprudence / LL.M. (Jurisprudence)

This thesis is an in-depth discussion and analysis of the alternative dispute resolution process of arbitration in the United States. It begins by providing a basic explanatory overview of arbitration clauses and the arbitration process. It then goes on to highlight the various benefits over traditional court litigation that arbitration has to offer. From there, the paper presents a detailed discussion of the many shortcomings of the arbitration process. It identifies the overall lack of procedural fairness that exists in arbitration today due to the fact that arbitration currently tends to favor businesses over consumers and workers during dispute settlements. The paper then identifies the various negative potential consequences that exist as a result of the unfair nature of arbitration today. This thesis concludes by presenting various ways that the arbitration process can be improved upon to make for a fairer, more neutral dispute resolution alternative.

O objeto de estudo desta dissertação é a abrangência subjetiva da cláusula compromissória, especificamente daquela celebrada por sociedades pertencentes a grupos societários. O problema, ainda novo no Brasil devido ao desenvolvimento recente da arbitragem em nosso país, já foi objeto de muito debate na Europa e nos Estados Unidos, onde a arbitragem é usada há muitos anos como método alternativo de resolução de conflitos. No âmbito da arbitragem comercial internacional, consolidou-se, tanto na jurisprudência como na doutrina, a teoria da unidade econômica dos grupos societários. Ela reconhece a especificidade do problema que a presença de agrupamentos de sociedades suscita na arbitragem, devido, essencialmente, à dupla realidade que eles representam unidade diretiva e econômica e diversidade jurídica. Nesta dissertação, procuramos expor as bases sobre as quais essa teoria, consolidada na prática comercial internacional, se assenta. Se no Brasil o tema não foi suficientemente discutido, podemos aprender as lições daqueles que não só já debateram exaustivamente a questão como, também, parecem já ter encontrado uma solução, ainda que ela não seja indene de críticas e ainda mereça ser aperfeiçoada. De início, tentamos conceituar e caracterizar os grupos societários. Em seguida, fizemos um apanhado de casos emblemáticos da jurisprudência arbitral e estatal, de diversos países, que recorreram à teoria da unidade econômica do grupo. Nosso intuito foi verificar a solução conferida ao problema por aqueles que se depararam com ele no caso concreto. Depois, procuramos expor a visão da doutrina sobre a teoria da unidade econômica do grupo, para podermos concluir onde reside o problema central da questão. Ao fim, discutimos o possível obstáculo, apontado por alguns autores, à aplicação da teoria no Direito brasileiro. / The purpose of this paper is to discuss who are the parties to the arbitration agreement, especially regarding the convention executed by companies that form part of a group. The issue, still topical in Brazil due to the recent development of the arbitration in our country, has already been subject to much debate in Europe and in the United States, where arbitration has been used for years as an alternative dispute resolution method. In international arbitration, the group of companies theory has been restated, both within the legal authorities and in case law. Such theory acknowledges the specificity of the issue raised by the presence of groups of companies in arbitration, especially due to their dual characteristics managerial and economical unit and legal diversity. In this paper, we have sought to settle the basis over which such theory, already settled in the international commercial arbitration practice, is construed. Since in Brazil the subject hás been scarcely discussed, we may learn lessons from those who have not only exhaustively debated it but who also seem to have found a way to solve it, even if it is not immune to criticism and still ought to be improved. We have initially tried to clarify the notion and the characteristics of the groups of companies. We have subsequently gathered a number of illustrative arbitral and state case law, from different countries, which have made use of the group of companies theory. Our aim was to verify the solution given to the issue by those who have actually been faced with the problem. Then, we have tried to present the legal authoritys view on the group of companies theory in order to conclude where the issue is in fact centered. In the end, we have discussed a possible obstacle, which certain authors have raised, as to the application of the theory in the Brazilian Law.