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Arbitral implications: Hearing the sounds of silence

Authors Mittenthal and Bloch examine how arbitrators, in performing their interpretive function, find implied obligations that are nowhere mentioned in the contract. Arbitrators embrace those implications that help to preserve the parties’ bargain and reject those that alter or enlarge it. Author Macey agrees that preserving the parties’ bargain should be a guiding concern, but …

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The author presents management’s view of how arbitration and arbitrators are seen to have strayed from what the parties have mutually invited them to do. The author discredits the notions of the labor contract as an employment contract and the recognition clause as an implied limitation on management action.

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Should the scope of arbitration be restricted?

A panel discussion of the papers presented by Francis A. O’Connell and Ben Fischer including the views of the discussants as to whether arbitrators should limit themselves to the language of the contract.

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Do contract rights vest?

An examination of the circumstances under which certain rights created under a collective bargaining agreement “vest” or “survive” the expiration of the agreement. The author draws a distinction between monetary rights that have accrued and have been earned and non-monetary rights exercisable only in futuro. The author concludes that monetary rights such as vacation pay, …

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The arbitration of disputes over subcontracting

Analyzing the small number of arbitration decisions then published on the subject (64), the author finds few consistent themes – and attributes this to inconsistency in the behavior of the parties. Where contracts have been silent on contracting out, arbitrators have generally not adhered to a reserved rights theory, even when they ruled in favor …

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