Skiljeavtal inom arbetsrätten
(2007)Department of Law
- Abstract
- The right to a fair trial is a fundamental right that cannot be waived, however parties can sign an agreement in which they agree that their disputes should be resolved by an arbitration tribunal. The agreement can be made before or after a dispute arises. The arbitral process is an alternative way to settle disputes outside the courts and the decision of the arbitral tribunal is an enforceable arbitral award. An arbitral tribunal can either be an ad hoc arbitration tribunal or an institutional arbitration tribunal. An important part of the arbitration agreement is that it constitutes an optional procedural hindrance. An arbitration agreement prevents a judicial process but must give the opportunity to an arbitral process. Within the... (More)
- The right to a fair trial is a fundamental right that cannot be waived, however parties can sign an agreement in which they agree that their disputes should be resolved by an arbitration tribunal. The agreement can be made before or after a dispute arises. The arbitral process is an alternative way to settle disputes outside the courts and the decision of the arbitral tribunal is an enforceable arbitral award. An arbitral tribunal can either be an ad hoc arbitration tribunal or an institutional arbitration tribunal. An important part of the arbitration agreement is that it constitutes an optional procedural hindrance. An arbitration agreement prevents a judicial process but must give the opportunity to an arbitral process. Within the labour regulations there are mainly two ways to come to an arbitration agreement, either through a collective agreement or through a contract of employment. A collective agreement binds not only the organisations that enter into the agreement but also the members of the organizations, even if the members lack support from their union. It is, however, required that the employee can plead his case in an arbitral tribunal process and that there are adequate assurances to a fair procedure. The situation involving unorganized employees is somewhat uncertain. The collective agreement regularizes the contract of employment, but the arbitration agreement is considered an oppressive term of agreement and it is probably required that the employee somehow is made aware of the arbitration agreement. It is possible to reach an arbitration agreement through a clause, in the contract of employment, which makes a reference to another document that contains an arbitration clause. It is probably not required to attach the document or send it to the employee, but there are high requirements of the level of clarity. The Labour Court has accepted arbitration agreements even in the contract of employment, although in some cases the agreement is considered unreasonable. All reasons for arbitration, mainly the advantage of the speed and privacy of arbitration, are weighed against the reasons against arbitration. The parties need to pay for the arbitrators, which add an additional legal cost that may pressure the employee to resign from his claim, but the unequal balance of force that sometimes exists between an employer and an employee cannot solely result in that an arbitration agreement should be considered unreasonable. Other factors that should be regarded are, amongst others, if the contract of employment was individualised, if the employee had relatively advanced job assignments, if the employee had a position of trust towards the employer, or if the employer had enforced the arbitration agreement in a way that it should be considered unreasonable. (Less)
Please use this url to cite or link to this publication:
http://lup.lub.lu.se/student-papers/record/1561618
- author
- Rud, Johan
- supervisor
- organization
- year
- 2007
- type
- H3 - Professional qualifications (4 Years - )
- subject
- keywords
- Arbetsrätt
- language
- Swedish
- id
- 1561618
- date added to LUP
- 2010-03-08 15:55:29
- date last changed
- 2010-03-08 15:55:29
@misc{1561618,
abstract = {{The right to a fair trial is a fundamental right that cannot be waived, however parties can sign an agreement in which they agree that their disputes should be resolved by an arbitration tribunal. The agreement can be made before or after a dispute arises. The arbitral process is an alternative way to settle disputes outside the courts and the decision of the arbitral tribunal is an enforceable arbitral award. An arbitral tribunal can either be an ad hoc arbitration tribunal or an institutional arbitration tribunal. An important part of the arbitration agreement is that it constitutes an optional procedural hindrance. An arbitration agreement prevents a judicial process but must give the opportunity to an arbitral process. Within the labour regulations there are mainly two ways to come to an arbitration agreement, either through a collective agreement or through a contract of employment. A collective agreement binds not only the organisations that enter into the agreement but also the members of the organizations, even if the members lack support from their union. It is, however, required that the employee can plead his case in an arbitral tribunal process and that there are adequate assurances to a fair procedure. The situation involving unorganized employees is somewhat uncertain. The collective agreement regularizes the contract of employment, but the arbitration agreement is considered an oppressive term of agreement and it is probably required that the employee somehow is made aware of the arbitration agreement. It is possible to reach an arbitration agreement through a clause, in the contract of employment, which makes a reference to another document that contains an arbitration clause. It is probably not required to attach the document or send it to the employee, but there are high requirements of the level of clarity. The Labour Court has accepted arbitration agreements even in the contract of employment, although in some cases the agreement is considered unreasonable. All reasons for arbitration, mainly the advantage of the speed and privacy of arbitration, are weighed against the reasons against arbitration. The parties need to pay for the arbitrators, which add an additional legal cost that may pressure the employee to resign from his claim, but the unequal balance of force that sometimes exists between an employer and an employee cannot solely result in that an arbitration agreement should be considered unreasonable. Other factors that should be regarded are, amongst others, if the contract of employment was individualised, if the employee had relatively advanced job assignments, if the employee had a position of trust towards the employer, or if the employer had enforced the arbitration agreement in a way that it should be considered unreasonable.}},
author = {{Rud, Johan}},
language = {{swe}},
note = {{Student Paper}},
title = {{Skiljeavtal inom arbetsrätten}},
year = {{2007}},
}