关于国际商事仲裁实体法的适用问题

进一步完善各国涉外民商事法律制度,协调各国在这一领域的法律冲突,加强国际司法合作,已成为国际社会的普遍关注和共同努力的目标,也是理论界的大课题。本文在分析比较有关国际公约和国外立法的基础上,对国际商事仲裁实体法在适用中的冲突和协调,提出了自已的观点和意见。     

中外税收协定引入仲裁条款之法律构想

传统的相互协商程序是目前中外税收协定争议解决的唯一方法,但是这一方法存在一定的弊端。为了弥补传统相互协商程序的缺陷,国际税收仲裁被越来越多的国家所接受。目前OECD税收协定范本中的仲裁条款、欧盟仲裁公约、国际商会的仲裁标准条款反映了国际税收仲裁的最新发展。我国在进一步引进外资的过程中有必要在税收协定中引入仲裁条款,以更好解决税收协定争议。为了维护国家税收主权,中外税收协定中的仲裁应该是一种“补充性”的争议解决方法．应该采用强制性仲裁的方式,应该赋予纳税人一定程度参与仲裁的权利,国际税收仲裁裁决只应在纳税人同意接受后才对缔约国主管当局有约束力。     

创新维权机制强化维权职能

当前工会工作可谓机遇和挑战并存,工会工作的领域、重点、对象和方式也将随着市场经济的变化而发生改变,要想完善新形势下的工会工作就要在思想观念、思维方式、工作方法、解决问题的手段和途径等方面构建创新平台,使国家整体的利益和职工个体的利益和谐统一。因此工会观念创新、理论创新、体制创新、机制创新,已成为各级工会组织亟待解决的重要课题。     

A Model of Final Offer Arbitration in Regulation

I study a regulatory process in which both the regulator and the regulated firm propose prices that, in case of disagreement, are settled through final-offer arbitration (FOA)—a practice currently used in Chile for setting prices in the water sector. Rather than submitting a single offer, each party simultaneously submits an offer for each of the firms cost units (e.g., cost of raw water, capital cost). While a multiple-offers scheme allow the arbitrator to better approximate her ideal settlement, it may induce parties to submit widely divergent offers. This divergence, however, does not affect the arbitrators ability to learn from the offers.     

Private Remedies for Private Anti-Competitive Barriers to Trade: The Kodak–Fuji Example

The article describes a number of remedies available to a private US company for private anti-competitive activity in its export market, including action in US courts or the courts of the foreign market, and World Trade Organization (WTO) dispute resolution. The article describes the problems which a would-be plaintiff might perceive. One interesting result is that no matter how good the case on the merits, the plaintiff might prefer the most political avenue for relief.     

Quits,recission of quits,and constructive discharge in arbitration

This article explores the arbitral criteria involved in cases when grievants quit or appear to quit their jobs, and then change their minds. It looks at factors that arbitrators take into account in determining when a voluntary resignation has taken place. The principles or guidelines for rescinding a quit are also reviewed. When a quit is forced by some action of the employer, arbitrators generally consider this situation to constitute a constructive discharge, and if such a finding is made, will review the discharge to determine whether it meets just cause standards.Donald J. Petersen is also an arbitrator listed on the panels of the American Arbitration Association, Federal Mediation and Conciliation Service, the Public Employee Panels of the State of Iowa, and the Wisconsin Employment Relations Commission. He is a member of the National Academy of Arbitrators.     

The tests of just cause: What price predictability in arbitral decision making?

The common law of just cause consists of the accumulated decisions of the arbitration profession rendered on the basis of commonly accepted principles of right and wrong. It constitutes the rules of the arbitration game pertaining to just cause, and, as such, guides decision making in disciplinary dispute resolution. Presumably it brings predictability to this aspect of arbitral decision making much as the principles of contract law bring predictability to nondisciplinary contract construction disputes. The best known component of this body of law is the checklist of seven tests devised by Carrol R. Daugherty. This article examines this element of common law, its origins, and whether it does, in fact, bring grater predictability to the disciplinary phase of arbitral decision making and, if so, at what cost. Besides questioning the degree of predictability achieved by Daugherty's tests, the paper cautions that greater predictability may only be possible at an unacceptably high cost: the sacrifice of those characteristics that make arbitration the preferred dispute resolution technique.     

论国际商事合同中仲裁条款的转让

本文探讨国际商事合同转让情况下,合同中包含的国际商事仲裁条款是否随之转让的问题。本文首先分析被用来排斥仲裁条款转让的仲裁条款独立性理论;其次,探讨了仲裁条款独立性与仲裁条款转让的关系,提出仲裁条款独立性是相对的独立,其与仲裁条款转让具有同一性;再次,分析并阐述了国际商事合同发生转让后,仲裁条款也随之移转。最后,笔者立足于中国现行法律框架分析国际商事仲裁条款转让在中国的现状以及提出自己观点。     

Mitigating factors in substance abuse discharge grievance arbitrations

One response to the problem of substance abuse is simply dismissing those employees who misuse or abuse drugs or alcohol. If the dismissal is challenged before an arbitrator, what particular grievant factors affect the outcome? Analyzing a recent data set, this research note suggests that arbitrators are influenced by grievant-specific factors, but most significantly by the nature of the substance in question. It is argued that this result may be discriminatory in that misuse of drugs or alcohol pose more or less similar health and safety risks to the employer, the public, and other employees. This result may reflect general societal values, mirrored by arbitrators, of which grievants, their representatives, and their employers ought to be aware.     

Ethics and Values in Nonunion Employment Arbitration:A Historical Study of Organizational Due Processin the Private Sector

This paper provides a historical overview of the interrelationship between the use of nonunion employment arbitration and the ethics of employee organizational due process. Key research questions to be explored include the following, among others: Why are expectations about due process in organizations increasing? How are these expectations being exhibited? What is the nature of fair treatment of employees in relation to nonunion employment arbitration? Should arbitration in the nonunion employment relationship be nurtured? A final objective of this paper is to study some of the current initiatives that neutral agencies have adopted to ensure that nonunion arbitration is fair, just, and equitable for a firm's employees.