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1 The two main theories of arbitration may be
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13 Jun 2009, 06:10
1 The two main theories of arbitration may be described as judicial and political. One might even go so far as to characterize them by saying that the first 5 is based on how arbitration is supposed to work, while the second is based on how it does in fact work. The judicial theory implies that a “just” solution of the dispute does in fact 10 exist, and that it is the duty of the arbitrator to decide on the principles and the facts involved. The arbitrator sits as a private judge, called upon to determine the legal rights and the 15 economic interests of the parties involved as these rights and interests are demonstrated by the information provided by the parties themselves. The political theory, on the other hand, 20 regards arbitration as an extension of both collective bargaining and, of course, collective coercion. The arbitrator functions as a sensitive instrument of sorts, accurately recording 25 the relative strengths of the parties and making sure that the lion gets his share. To some extent, however, these opposing theories represent a confusion between arbitration and conciliation, the 30 act of appeasing both parties to a dispute without necessarily rendering a just or pragmatic decision. The notion of compromise that dominates conciliation may also guide arbitration, although, in 35 the process of arbitration, the result necessarily requires the decision of an outsider rather than an accommodation between the parties themselves. Nevertheless, since to some the idea of 40 arbitration necessarily involves absolute “rights,” compromise is likely to be regarded as the solution of the timid or the unprincipled. Arbitration grounded in political theory, while more likely to 45 permit conciliation, is therefore less preferable to both parties in a dispute, despite the obvious practicality of compromise.
1. Which of the following, if true, would most effectively weaken the author’s assessment of the drawbacks of the political theory of arbitration?
Litigation is becoming a more popular alternative to arbitration.
A system of checks and balances was put in place to reduce the likelihood of finding biased arbitrators.
Contending parties in most disputes establish compromise as one of their most important goals.
The process of arbitration uncovered new strategies for avoiding conflicts between contending parties.
Resolution of the problem of the opposing rights of the parties involved in labor settlements can be achieved.
2. It can be inferred from the passage that all of the following are elements of the political theory of arbitration EXCEPT
an evaluation of the balance of power between disputing parties
a willingness on the part of both parties to accept compromise
a relative disregard of the importance of moral right in the dispute
an understanding that any compromise must appear to be just
an extension of collective bargaining
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Re: 1 The two main theories of arbitration may be [#permalink]
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