GLOSSARY- INTERNATIONAL ARBITRATION

Adverse Witness

A representative of one party to an arbitration who is called as a witness by the opposing party, as when a grievant is called by an employer or a supervisor is called by a union. Being considered an adverse witness means that the cross- examination format can be used in asking questions, including the use of leading questions. Sometimes referred to as a hostile witness.

Advocate

A person representing the grievant(s) or the employer who presents the grievant’s or employer’s position, evidence, and arguments to an arbitrator. The advocate may be an attorney specializing in labor law but may also be a union representative (for the grievant) or labor relations specialist (for the employer).

Ad hoc arbitration

Arbitration proceedings which are not administered by an arbitration institution, such as the ICC or the LCIA.

Appeal

The act of taking an arbitration award to court with the goal of overturning or modifying the arbitrator’s decision. The judicial grounds for overturning an award are very limited but may include such questions as legality of the award, enforceability of the award, or impartiality of the arbitrator.

Affidavit

A written statement or declaration offered as a sworn document about a matter at issue. Arbitrators at times will permit the submission of an affidavit but almost never treat the statement alone as proof of the facts stated in the document.

Alternative dispute resolution

Commonly referred to as ADR; methods by which legal disputes are resolved by the parties privately, rather than through litigation in public courts, typically through mediation, conciliation or arbitration.

Amiable compositeur

Term for an arbitral tribunal expressly authorized by the parties to base its decision on equitable principles such as fairness, and not solely on the basis of the law.

Amicable settlement

Settlement of a dispute by the parties amicably, ending the dispute. An attempt to amicably settle a dispute is frequently required before a dispute may be submitted to arbitration.

Annulment of an award

Also known as setting-aside; decision by a national court to vacate an award, which is only possible in exceptional circumstances.

Answer

Name for respondent’s reply to the claimant’s arbitration request in certain arbitral proceedings and /or notice of dispute.

Anti-arbitration injunction

Order made by a national court requiring a party to halt arbitration proceedings.

Anti-suit injunction

Order made by arbitral tribunals or national courts requiring a party to stop litigation proceedings initiated before a state court.

Appointing authority

Authority chosen by the parties, or by an arbitral institution, to appoint arbitrators, such as the PCA.

Arbitrability

The arbitrator’s jurisdiction or authority to hear a case. Substantive arbitrability objections involve whether or not the subject matter of the dispute is within the scope of arbitration. Procedural arbitrability claims involve whether or not conditions have been satisfied for the arbitration to go forward. Substantive arbitrability objections typically are reserved for judicial determination unless a labor agreement or the parties in a specific case confer such authority on an arbitrator. A presumption of arbitrability often is imposed by the final decision maker. Procedural arbitrability objections usually involve issues of contractual time limits or other terms that are decided by an arbitrator, not a court. In some instances arbitrability issues are bifurcated for a decision to be rendered before the merits of the dispute are argued. The issue of whether parties are legally entitled to have their dispute decided by an arbitral tribunal as opposed to a national court.

Arbitral institution

Institution providing administrative services for arbitration disputes, such as the LCIA, the ICC or the PCA. The institution does not reach a decision on merits of the dispute, unlike arbitral tribunals.

Arbitral tribunal

Panel of individuals appointed to decide on a dispute. Arbitral tribunals have the power to issue binding awards that may be enforced like a domestic court judgment.

Arbitral Notice

When an arbitrator takes notice of statutes, case law, government regulations, or other facts of common and widespread knowledge whose accuracy is not reasonably subject to dispute. The party requesting notice be taken need not establish a formal evidentiary basis for the fact subject to notice. Also called judicial notice.

Arbitration

A method of dispute resolution provided by a collective bargaining agreement or other contract, typically with a final and binding decision to be rendered by an impartial decision maker known as an arbitrator. The predominant form of arbitration in labor matters is grievance arbitration, also known as rights arbitration. Another type is interest arbitration, which is used to resolve an impasse or deadlock during bargaining in the formation of a contract or one of its provisions. Arbitration that is not final and binding is known as advisory arbitration. An arbitration decision includes an award setting forth the specific order of the arbitrator. When upheld in court, an award is confirmed. Under narrow circumstances an award may be vacated or overturned, often with a court deciding to remand the case to the arbitrator for further activity. The arbitrator may be selected on an ad hoc or case-by-case basis. Or the arbitrator may be selected from a permanent panel of arbitrators agreed to by the parties to a labor agreement. Selections also can be made by parties striking names from a list transmitted by an administrative agency of provider organization such as the Federal Mediation and Conciliation Service or the American Arbitration Association. Arbitration that is mutually adopted by the parties during collective bargaining differs from mandatory arbitration agreements demanded by some employers for their employees in non-union workplaces as an alternative to civil litigation.

Arbitration clause

Provision which states that the parties agree to submit their dispute to arbitration. Most arbitral institutions provide model arbitration clauses.

Arbitrator

Private person appointed to decide a dispute, as opposed to a national judge, typically for his or her competence and expertise.

Award

Decision made by an arbitral tribunal which is final and binding on the parties.

Action to set aside

Action aimed at setting aside an award. Modern arbitration laws permit only limited review of an award by local courts in setting aside actions, and they do not permit any review of its merits. Under French law, the conditions for setting aside an award in international matters are the same as those for refusing its enforcement. Awards set aside in their country of origin (cf Seat of arbitration) cannot be enforced in that country and also may lose the benefit of enforcement under the New York Convention. However, some countries (such as France) allow an award set aside in its country of origin to be enforced in their territory if the conditions for doing so are fulfilled.

Ad hoc arbitration

Arbitration that is not administered by an arbitral institution (cf Institutional Arbitration). The parties do not benefit from any assistance in case of difficulty other than from the courts of the seat of arbitration, who may provide support if they have jurisdiction. Parties to an ad hoc arbitration may agree to the use of established arbitration rules, such as UNCITRAL Arbitration Rules, and may provide for an appointing authority to assist them in the constitution of the arbitral tribunal or the appointment of a sole arbitrator.

American Arbitration Association - AAA

The most important arbitration institution in the United States. The AAA has numerous sets of rules for dispute resolution in many different fields (commercial, employment, labor union, consumer), including a specific set of rules devoted to international arbitration : the AAA International Arbitration Rules. The AAA established the International Centre for Dispute Resolution (the ICDR) to administer all of the AAA’s international matters.

Amiable composition

Power given by the parties to the arbitrators to seek an equitable solution to their dispute, by setting aside, if necessary the rule of law which would otherwise be applicable or the strict application of the contract. It is said that in this case, the arbitrator decides “ex æquo et bono”, as “amiable compositeur”, or in “equity”, these three expressions being often considered interchangeable. The only limit to the power of the arbitrator lies in international public policy, a breach of which would constitute a ground for refusing to enforce the award or for setting it aside (cf Action to set aside).

Appointing authority

Individual or institution selected by the parties to a dispute or determined by applicable arbitration rules to select the arbitrator or arbitrators who will hear a matter. The appointing authority may select the arbitrator or arbitrators in the first instance or only after the failure of one or more parties to nominate an arbitrator within an established timeframe.

Arbitral case law or Arbitral precedent

The body of existing arbitral awards that may be referred to by parties in later disputes seeking a set of legal principles to support the arbitrators’ decision. Prior awards are referred to in relation to both arbitral procedure and substantive law. The vast majority of commercial arbitration awards are unpublished, but excerpts from many awards are published. Public international law arbitral awards (including the majority of awards in investment treaty arbitrations) have, on the other hand, very often been published and are frequently cited by parties in later cases. Unlike certain judgments in common law systems, arbitral case precedent is non-binding and is referred to only in support of arguments.

Arbitral institution

Organisation that manages arbitral procedures, generally taking place under the arbitration rules it issues. Among the leading international arbitral institutions are the ICC, AAA (and its international arm, the ICDR), CIETAC, HKIAC, DFIAC, LCIA, SIAC, SCC, and Swiss Chambers. Some institutions have adopted the UNCITRAL Arbitration Rules, whereas most have developed their own rules. The institution’s role is more or less extensive depending on its arbitration rules, but in no event does it have a jurisdictional function. The jurisdictional function of deciding on the merits of a dispute resides with the arbitral tribunal. In addition to the issuance of arbitration rules, the arbitral institution’s role consists mainly in assisting the parties in resolving certain procedural difficulties, such as the constitution of the arbitral tribunal, and in supervising the proper conduct of the arbitration proceedings.

Arbitral tribunal

In contrast to a sole arbitrator, a collegial body generally consisting of three arbitrators. Usually each party nominates one arbitrator and the two arbitrators so nominated appoint the third, who acts as the chairman of the arbitral tribunal. In some instances, and in particular in multiparty arbitrations, it may be necessary or desirable to have all three arbitrators appointed directly by an arbitral institution or other appointing authority. It is possible to envisage an arbitral tribunal comprising more than three arbitrators, or two arbitrators only, subject to the mandatory provisions of some arbitration laws that prohibit an even number of arbitrators.

Arbitration

Way of resolving disputes whereby the parties withdraw their dispute from the jurisdiction of State courts to submit it to private individuals – the arbitrators – freely nominated by them and charged with the task of resolving the dispute by means of an enforceable decision.

Arbitration agreement

Agreement in which parties agree that a dispute that has arisen (submission agreement) or that may arise between them in the future (arbitration clause) shall be resolved by arbitration.

Arbitration Institute of the Stockholm Chamber of Commerce (SCC)

Independent body of the Chamber of Commerce of Stockholm devoted to dispute resolution, its mission is to lend assistance, in accordance with the arbitration rules of the Arbitration Institute of the Stockholm Chamber of Commerce, or other rules that it may adopt in the resolution of domestic or international disputes.

Arbitration law

Legal system applicable to arbitration in a particular country. It deals in particular with the validity and effects of the arbitration agreement, the functions of the arbitrator, the constitution of the arbitral tribunal, the mandatory procedural rules and actions to set aside the awards and their enforcement. It should not be confused either with the substantive law or the procedural law. It is sometimes referred to as the lex arbitri. French arbitration law is codified in the Book IV of the Civil Procedure Code and was updated by a Decree No. 2011-48 of 13 January 2011.

Arbitration rules

Set of provisions that determine the main rules regarding the establishment and conduct of the arbitration, facilitate the constitution of the arbitral tribunal or the appointment of the sole arbitrator and govern the powers and obligations of the arbitrators. They are usually issued by the arbitral institutions and used in arbitration proceedings conducted under their aegis. UNCITRAL offers arbitral rules devoted to ad hoc arbitrations.

Arbitrator

Private individual, in principle a natural person, to whom the parties submit a dispute which has already arisen or which may arise with a mandate to decide the dispute and who accepts this mandate. Unless the arbitration agreement provides otherwise, no restriction under French law limits the choice of the arbitrators by the parties except that they must be independent from the parties. Some national laws require that arbitrators be lawyers when they are deciding matters based on the law. Where more than one arbitrator (usually three arbitrators) together decide a dispute, they act together as an arbitral tribunal.

Award

Written decision of the arbitral tribunal or sole arbitrator that finally settles the dispute, in whole or in part, whether on the merits, on jurisdiction or on any other procedural issue that may lead to the end of all or a portion of the proceedings. The award is binding on the parties and terminates the arbitrators’ jurisdiction over the dispute or portion of the dispute that they have resolved. It is generally acknowledged that the award is res judicata with regard to that dispute. An award is said to be partial when it settles only part of the dispute (jurisdiction, applicable law, one contested issue …) and final when it disposes of all the issues. In principle, the award is not subject to appeal but may be subject to an action to set aside.

Award by consent

Award whereby the arbitrators record a settlement entered into by the parties. It has the authority and effect of an arbitral award.

Back pay

Wages required to be paid an employee upon an arbitrator’s finding that a discharge or layoff of an employee was not for just cause or was in violation of the employee’s contractual or statutory rights.

Bargaining unit

A grouping of employment positions or classifications that share a community of interest in a workplace. A bargaining unit is represented by a union in negotiations and during contract administration. The union that represents employees in a bargaining unit is known as the bargaining agent or exclusive representative.

Bench decision

An oral ruling rendered by an arbitrator after a hearing on an arbitrability issue or on the merits of the case.

Best evidence

Primary evidence, usually in the form of a writing, rather than secondary evidence or copies.

Bifurcation

Dividing a labor arbitration hearing to permit the separate consideration of arbitrability questions and the merits of the case. Bifurcation also may refer to separating the liability phase of a case from a subsequent determination of specific monetary amounts, as when a make-whole relief is awarded and the arbitrator retains jurisdiction over later disputes that emerge about financial calculations. Division of the arbitral proceedings into two phases, each dealing with a different issue, such as jurisdiction and liability, or liability and quantum.

Bilateral Investment Treaty

Term given to a treaty between two States granting protections for investments, such as fair and equitable treatment, the right to prompt and adequate relief in the case of expropriation, and the States’ consent to resolve disputes with investors through binding arbitration, often before the ICSID.

Bill of Quantities

Document which describes and quantifies each item necessary for a construction project.

BIT

Bilateral Investment Treaty.

Build-only

Construction contract in which the contractor only has to execute the works, which are designed by the employer.

Brief

A written summary of facts and legal principles related to a dispute. A post- hearing brief often is used instead of a closing statement (or closing argument) at the conclusion of a hearing. Some parties also file briefs in lieu of opening statements at the outset of a hearing.

Bumping

A procedure permitting a worker subject to layoff, transfer, or other contractual action the right to displace a worker with less seniority.

Burdens

The burden of going forward refers to the party with the obligation to present evidence first on a matter in dispute. The phrase “burden of proof,” or “burden of persuasion,” refers to the ultimate obligation to demonstrate sufficient evidence borne by one of the parties. Burdens may apply to particular issues as well as to the case as a whole. In disputes involving contract interpretation the burden typically rests with the union as the grieving party. In contrast, in disciplinary matters the burdens of going forward and proof typically are assigned to the employer as the party altering the status quo. The allocation of burdens also applies to particular issues such as arbitrability and affirmative defenses (for example, the burden to demonstrate untimely grievances, negotiation waivers, disparate treatment, mitigation of damages, etc.).

Calvo doctrine

In international law, rule according to which the relevant courts for investment disputes are those of the State where the investment takes place. This principle is endorsed by the constitutions of several Latin American countries.

Chairman

Also known as President; arbitrator who is usually appointed by two party-appointed arbitrators or by an appointing authority.

Challenge of arbitrator

Request to remove an arbitrator.

Challenge of award

Application made to a national court to review an award. Grounds for the challenge of awards are strictly limited by national arbitration laws.

CIETAC

China International and Economic Tribunal Arbitration Commission.

Claimant

Party initiating the arbitration.

Co-arbitrator

Arbitrator who is not the chairman and is appointed by a party.

Conciliation

A form of alternate dispute resolution where a neutral Conciliator (third-party) is appointed to hear both sides of a dispute and then draft a non-binding document suggesting how to resolve the dispute. Conciliation is similar to mediation, but more structured.

Confirmation of arbitrator

In the International Court of Commerce (ICC) system, decision to accept an arbitrator chosen by one or both parties.

Consent award

Decision incorporating the amicable settlement reached by the parties.

Conservatory measures

Orders of a temporary nature, made against one party by an authority before a final decision is rendered, such as attaching assets that risk being depleted.

Consolidation

The joining of several arbitration proceedings into one arbitration, potentially on the basis of separate contracts, for reasons such as efficiency.

Cost Plus contract

Construction contract where the contractor is paid the actual price of the works and materials plus a fee.

Costs of arbitration

The total amount payable for the conduct of the arbitration (including arbitral institutions’ fees and expenses, arbitrators’ fees and expenses, legal costs).

Costs submission

Memorial, typically filed by each party after all other steps in the arbitration have been completed, relating to the costs of the arbitration that they have spent and wish to recover.

Counterclaim

A claim brought by a party that was initially a defendant in an international arbitration.

Critical path

Series of stages in a construction project which must be completed on time if the project is to be completed on the date agreed by the parties.

Cease-and-desist order

A directive in an award requiring a party that violated a labor agreement to halt the offending practice in the future.

Charge

A written statement alleging an employee’s misconduct.

Circumstantial evidence

Evidence which involves facts that, when taken together, establish another fact by the circumstances and inferences drawn from the factual connections.

Class action

An action in which two or more employees with a common interest file a grievance on behalf of themselves and all similarly-situated employees.

Collateral estoppel

A doctrine barring evidence about a fact or issue that was subject to prior adjudication from being offered in a subsequent arbitration. This concept is similar to, but different from, res judicata, which involves a contention that the case (and dispute itself) has been the subject of previous resolution and cannot be tried anew. Both principles differ from double jeopardy, a concept borrowed from criminal law that precludes an employer from seeking to discipline an employee twice for the same misconduct.

Collective bargaining

The negotiation by an employer and a bargaining agent of terms and conditions of employment governing the members of a bargaining unit. When successful, their bargaining results in a collective bargaining agreement. In some industries multi-employer or multi-union (or coalition) bargaining is used, leading to a master agreementcovering all affected parties. Master agreements may have local supplements for particular employers or geographic areas. In the public sectors the phrase meet and confer often refers to the negotiating process resulting in a memorandum of understanding (or MOU).

Concerted activity

Employee activity in association with others that usually involves union organizing, protesting employer conduct, or asserting other mutual aid and protection.

Consent award

An arbitration order agreed upon by the parties.

Cumulative evidence

Involves the repetitive presentation of testimony regarding the same matter.

China International Economic and Trade Arbitration Commission – CIETAC

Formerly known as the Foreign Trade Arbitration Commission, CIETAC is the most important international arbitration institution in China. It was established in April 1956 under the China Council for the Promotion of International Trade (CCPIT). Headquarted in Beijing, CIETAC has sub-commissions in Shanghai, Shenzhen, and Tianjin. CIETAC has its own set of arbitration rules.

Competence – competence

Generally accepted principle according to which the arbitrators have jurisdiction to decide on their own jurisdiction when a party to the arbitral proceedings challenges it, without having to suspend the proceedings until a State court determines whether the dispute it to be arbitrated. In its “negative” sense, acknowledged by some national laws only, especially in France, competence-competence further means that the jurisdiction of the arbitrators to decide on their own jurisdiction is exclusive of the jurisdiction of the State court, which, when faced with an arbitral agreement, does not have any jurisdiction either to decide the dispute or to decide on the validity of the agreement unless it is prima facie null and void and cannot be applied. This does not mean that the State court is prevented from ever assessing the validity or the subject matter of the arbitration agreement; but this assessment is postponed until the review of the award in connection with either its enforcement or an action to set it aside.

Damages

A sum of money recovered to redress or make amends to a grievant for the wrong done. In most cases an arbitrator will award only such monies as make the wronged employee whole – i.e., place the employee in the financial position he/she would have been in but for the wrong done.

Deferral

policy of the National Labor Relations Board and many public sector labor boards to delay administrative action until an arbitration is completed. An arbitrator’s decision then may be reviewed by a labor board to determine if it is repugnant or significantly at odds with labor relations law.

Default award

Decision of the arbitral tribunal when one party does not take part in the proceedings.

Disclosure/ Discovery

Common law legal concept according to which each party must produce the documents relevant to the dispute. It is typically more limited in international arbitration than in common law jurisdictions.

Discounted Cash Flow

Formula used to determine the value of a project, based on the time value of money.

Demeanor

The physical attributes of a witness when testimony is being offered, including gestures, tone of voice, and general appearance. A witness’s demeanor may be a factor in assessing credibility, although these observations usually will not be determinative.

Deposition

The testimony of a witness taken outside the arbitration hearing before a person authorized to administer oaths.

Direct Evidence

Evidence is offered as proof of a fact without relying on any inference or presumption.

Direct examination

Questions posed to a witness who has been called by a party. Cross-examination involves questions posed by the party who did not call the witness. The initial round of witness testimony is followed by redirect or recross examination.

Disclosure responsibilities (or an arbitrator)

An arbitrator should be aware of any potential or perceived conflict of interest that may arise. Prior to accepting an appointment, an arbitrator must make the parties aware of any current or past relationship with any party involved in the arbitration, regardless of whether the nature of that relationship is professional or personal. Similarly, an arbitrator has an obligation to disclose any financial interest in the arbitration or with any party. If an arbitrator accepts an appointment and later becomes aware of a potential conflict of interest, disclosure must be made at that time. An arbitrator should disclose any circumstance that might reasonably raise a question as to the arbitrator’s impartiality.

Discovery

The formal process of gathering information or evidence prior to a hearing through depositions, requests for documents, written questions or interrogatories, and other methods. Although formal discovery is a common feature of civil litigation, it rarely is used in labor arbitration. In labor cases the parties usually rely on the exchange of information during grievance processing, supplemented by the use of subpoenas to secure additional evidence for the hearing.

Documentary evidence

Evidence which is presented in a writing or document offered as proof.

Due process

Procedural due process is an element of just cause and requires that before an employee may be disciplined, the employer must provide the employee with notice of the charges and an opportunity to be heard. The scope of protection is broader for employees in the public sector, but employees in the private sector are also generally thought to be entitled to due process protections. In addition, due process principles may protect an employee from double jeopardy and from interrogation by an employer without union representation when it is requested. In an arbitration hearing due process means that each party must be given adequate notice of the date, time, and place of the hearing and the opportunity to present evidence and cross-examine the opposing party’s witnesses. Further, the arbitration award must be based on the evidence presented at the hearing.

Duty of fair representation

The obligation of a bargaining agent to represent bargaining unit employees fairly. Arbitrary, discriminatory, or bad faith conduct constitutes a breach of the duty. The duty of fair representation applies to grievance arbitration or negotiation where the union is authorized to act on behalf of unit employees regardless of formal membership in a union.

ECT

Energy Charter Treaty.

Emergency arbitrator

Individual appointed according to certain arbitral institutions’ rules to decide on urgent orders before the constitution of an arbitral tribunal.

Emergency measures

Orders made by an emergency arbitrator, before the constitution of an arbitral tribunal.

Escalation clause

Contractual term according to which parties should endeavor to amicably settle the dispute before putting forward any request for arbitration.

Estimated cost method

Formula to calculate damages which takes into account the costs as forecasted.

Evidentiary hearing

Hearing where both parties’ witnesses submit their oral evidence to the tribunal.

Ex aequo et bono

Decision-making based on equitable principles such as fairness and not purely on strict legal principles.

Exequatur

Latin term meaning “to execute/abide”. Order issued by certain state courts, such as French national courts, that a party must obey an arbitral award.

Expropriation

The act of taking privately owned property by a government; frequently at issue in investor-State disputes.

Evidence

Testimony, writings, or other matters presented as proof at a hearing.

Exhibits

Documents, photos, or other tangible items offered as proof of facts at a hearing. Exhibit items typically are explained by testimony from a witness.

Ex parte communication

Contact by one party with an arbitrator that involves a discussion of the substance or merits of a case.

Expert witness

A witness with specialized knowledge, training, or experience. Expert witnesses are generally permitted to testify on the basis of their opinions.

Enforcement

Arbitral awards may, and in principle should, be subject to immediate enforcement by the losing parties, from the time of their notification to the parties; otherwise they may be subject to legal enforcement once they are declared enforceable (via exequatur proceedings or other locally applicable procedures) by a judicial decision rendered in the country where enforcement is sought.

Exequatur

Procedure whereby the State courts make an arbitral award enforceable in the territory of that State. States Parties to the New York Convention undertake not to refuse the enforcement of awards issued in other States Parties (referred to as foreign awards) unless it is established that they do not comply with certain conditions, which should not be stricter than those provided by the Convention. Under French law, which is more liberal than the Convention, the exequatur of foreign awards can be refused only on the following five grounds: the arbitrator has decided in the absence of an arbitration agreement or on the basis of a void or expired agreement; there was an irregularity in the constitution of the arbitral tribunal or in the appointment of the sole arbitrator; the arbitrator’s decision does not conform to the terms of his reference; the principle of due process has not been complied with; or the recognition or enforcement of the award would be contrary to international public policy. In addition, awards issued in France in international matters (cf International arbitration) may be set aside (cf Actions to set aside) for these same grounds.

Fair and equitable treatment

In international investment disputes, standard of protection commonly required of host countries to their foreign investors.

Final award

The last decision made by an arbitral tribunal on all the elements of the dispute. This may be preceded by one or multiple partial awards, for instance an award on jurisdiction.

Forum

Latin term for a tribunal or a court.

'Fifth Amendment Rights' in arbitration

The Fifth Amendment to the United States Constitution protects citizens against self-incrimination in criminal trials. Not all arbitrators will extend this right to protect employees from discipline or termination.

Final and binding

A contractual agreement between parties submitting an issue to arbitration that once an award has been issued, its terms are final and binding upon both parties and may be overturned only on very limited grounds. If either party declines to abide by that award, the opposing party may seek enforcement of the award in a court of law.

Foundation

The term refers to the preliminary facts required to demonstrate the authenticity of a document or the circumstances of testimonial recollections.

Free speech

A constitutional protection that is the basis for employee and employer rights to express certain views. This right may in some cases be limited by legislation or by the nature of the speech – such as speech that harms the employer’s ability to do business or creates a hostile workplace for an employee.

Front pay

An amount of money awarded a wrongfully treated employee to make the employee whole for the loss of future work opportunities due to the employer’s wrongful treatment.

Functional link (or nexus)

Establishment by an employer that an employee’s on- or off-duty conduct likely would (or actually did) adversely impact the employer’s ability to conduct business. Such a nexus might arise if a uniformed railroad employee dining in a town’s restaurant stated loudly that the railroad going through town did not care about citizens’ safety along the right-of-way. It also could come into play if a disgruntled nurse gossiped negatively about a physician’s competence in front of the doctor’s own patient.

Grievance

A claim by a union or an individual that a term of the contract has been violated. In some settings an employer also can file a grievance. Grievances are processed through an internal grievance procedure that involves a multi-step process that precedes arbitration involving an outside arbitrator. In some industries a board of adjustment that includes representatives of both labor and management is convened before or instead of arbitration involving an impartial arbitrator.

Grievant (Grievor)

The individual employee protesting an employer’s actions. An employee may file a grievance on his/her own behalf or the Union may file a grievance on behalf of an individual unless the collective bargaining agreement says otherwise. An arbitration also may involve more than one grievant protesting an employer’s action that impacts all of them.

Guaranteed maximum price

Pricing method where the contractor cannot receive an amount higher than the sum agreed with the employer.

Hearing

A proceeding before an arbitrator at which parties present evidence and argument prior to a decision. Principles of due process, or basic fairness, apply at hearings, including the right to attend the session, to challenge the claims at issue, to offer testimony and other evidence, and to cross-examine witnesses. Sometimes parties agree to have expedited hearings with limited advance notice, abbreviated testimony, and no post-hearing briefs.

Hearsay evidence

A statement made outside of the arbitration hearing by a person other than the witness who is testifying. It is offered for the truth of the matter contained in the statement. At times, a hearsay statement may include silence as well as conduct. The hearsay rule is subject to many exceptions, such as those for business records and admissions by a party.

HKIAC

Hong International Arbitration Court.

Honk Kong International Arbitration Centre – HKIAC

Established in Hong Kong in 1985, the HKIAC is among the leading arbitral institutions in Asia. For many years, the HKIAC acted as an appointing authority and administering body for arbitrations under the UNCITRAL Arbitration Rules. While it still performs that function, the HKIAC issues its own Honk Kong International Arbitration Centre Administered Arbitration Rules in 2008.

IBA Guidelines on Conflict of Interest

The International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration are non-compulsory rules often used by practitioners to prevent conflicts of interest.

IBA Rules of Evidence

The International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration are non-compulsory rules often used by practitioners to structure the taking of evidence, such as document production.

ICANN

International Corporation for Assigned Names and Number.

ICC

International Chamber of Commerce.

ICC Rules

The arbitration rules of the International Chamber of Commerce, the most recent of which is applicable to arbitrations instituted after January 1, 2012.

ICDR

International Centre for Dispute Resolution.

ICSID

International Centre for Settlement of Investment Disputes, the most frequent forum for resolving investor-State disputes.

Institutional arbitration

Arbitration proceedings administered by an arbitral institution such as the ICC.

Interim measures

Also known as conservatory measures. Orders of a temporary nature, made against a party by an authority before a final award or judgment.

Impasse

A situation arising in negotiating a collective bargaining agreement where the parties are unable to make further progress toward reaching an agreement.

Inferences

Logical factual assumptions drawn from direct and circumstantial evidence. This includes the drawings of adverse inferences when a party fails to explain or respond with evidence under its control, such as when a manager is not called as a witness to rebut a claim or when a business record relevant to the dispute is not produced at a hearing.

Injunction

An order of a court of equity to refrain from doing (negative injunction) or to do (affirmative or mandatory injunction) a specified act. Its use in labor disputes has been greatly restricted by the Norris-LaGuardia Act (1959).

Issue to be decided

Most often, the parties will stipulate (or agree) to the issue to be decided by the arbitrator. Otherwise, they may give the arbitrator the authority to formulate the issue, or it may be defined by their collective bargaining agreement. An arbitrator only has jurisdiction to decide the issue(s) raised by the parties at the hearing. Courts have vacated arbitration awards where an arbitrator has gone beyond the issue(s) presented by the parties.

IBA Rules on the Taking of Evidence in International Arbitration

Rules issued by the International Bar Association aimed at organising the presentation of evidence in international commercial arbitration, especially between parties belonging to different legal systems. Initially issued in 1999 as the Rules on the Taking of Evidence in International Commercial Arbitration, the IBA Rules were updated and re-issued by the International Bar Association in 2010. Even when the IBA Rules are not deemed directly applicable to the arbitration proceedings, they constitute an important set of guidelines for the majority of arbitrators.

Independence and impartiality

Essential characteristics of the arbitrator at the time of the acceptance of his/her function and throughout tenure. The absence of these attributes may lead either to a challenge of the arbitrators, the setting aside of the award (cf Action to set aside), or a refusal to enforce the award. A lack of independence is demonstrated, according to the French jurisprudence, through “the existence of material or intellectual links, a situation which is liable to affect the judgment of the arbitrator by creating a definite risk of bias in favour of a party to the arbitration”. The arbitrator may be suspected of partiality primarily on the grounds of lack of independence, especially towards one party, but also because the arbitrator’s previous knowledge of the case may have led him to take a prior position that could be prejudicial to one of the parties; it may be also evidenced by the arbitrator’s behaviour during the proceedings if it shows clear bias in favour of one party. Some arbitration rules require the arbitrators to provide the parties with a statement of independence whereby they must disclose any facts or circumstances which might be of such nature as to call into question the arbitrator’s independence in the eyes of the parties in order to allow a possible challenge before the proceedings begin.

Institutional Arbitration

The notion of international arbitration varies from country to country, and local arbitration law in each country usually treats international arbitration differently from domestic arbitration. Under French law, Article 1504 of the Code of Civil Procedure states that: “an arbitration is international when it involves the interests of international trade”. This means that apart from any other external criteria, such as nationality, the parties’ domicile or headquarters, the seat of the arbitral institution, the place of arbitration or the law applicable to the merits, the arbitration is international under French law if it deals with an economic transaction involving a transfer of goods or services or a cross-border payment.

International Arbitration

International Centre for Settlement of Investment Disputes (ICSID)

Arbitral institution established under the aegis of the World Bank by the Washington Convention of 18 March 1965 (“Convention for the Settlement of Investment Disputes between States and Nationals of other States”). ICSID offers conciliation and arbitration to resolve investment disputes between contracting States and nationals of other contracting States. As of 27 December 2010, the Convention had been signed by 157 States and ratified by 146 States.

International Chamber of Commerce (ICC) International Court of Arbitration

Arbitral institution established in 1923 as part of the ICC and headquartered in Paris. In spite of its name, the Court does not have any jurisdictional power; its mandate is to supervise international dispute resolution by the application of the ICC’s Rules of Arbitration. It intervenes, among other things, to appoint the arbitrators and confirm those nominated by the parties, as well as to scrutinise draft awards before their final issuance by the arbitrators.

International Chamber of Commerce – ICC

Institution founded as a not for profit organization under French law in 1919 with a view to fostering the development of world trade. In this context, among many other activities, it offers parties one of the main international arbitral institutions in the world: the ICC International Court of Arbitration.

International public policy

Set of rules or principles applicable either to the merits of a dispute or to the arbitral proceeding, which should be followed in the law of a particular State. The failure to comply with one of these rules could justify setting aside the award or refusing its enforcement.

Investment Arbitration or Investment Treaty Arbitration

Arbitration between a State and a private party from another State relating to the treatment of an investment of the latter in the former. The jurisdiction of the arbitral tribunal arises from a treaty (often referred to as a bilateral investment treaty, or BIT) or provisions of a multilateral convention (often a regional free trade agreement, such as the NAFTA, or the Energy Charter Treaty, or ECT) addressing the promotion and protection of investment. Investment arbitrations can be conducted pursuant to the ICSID Convention (cf ICSID), as institutional arbitrations supervised by other arbitral institutions, or as ad hoc arbitrations.

Joinder

The addition of a party to an arbitration.

Jurisdiction

The legal right/entitlement of an authority to decide an issue. In arbitration, the arbitral tribunal’s jurisdiction depends entirely on the consent of the parties.

Jurisdictional objection

Statement by a party that an authority is not entitled to decide an issue.

Jurisdiction of the arbitrator

Authority or jurisdiction of an arbitrator to hear and decide a particular issue placed before him/her in an arbitration hearing. The jurisdiction of the arbitrator’s deliberation is frequently restricted to the issue presented in the original grievance. In other situations the arbitrator’s jurisdiction is limited to either (1) an issue or issues agreed to by the parties to the arbitration, or (2) the authority delegated to the arbitrator to frame the issue.

Just Cause

A phrase applied to assessing an employer’s rationale for disciplining an employee, including such issues as notice of rules, warning of discipline, fairness of the investigation, proof of actual misconduct, and appropriateness of the penalty. Similar terms are good cause, reasonable cause, and sufficient cause.

Kompetenz-Kompetenz

Legal doctrine according to which an arbitral tribunal can decide whether it has jurisdiction over a dispute, which is enshrined in many national arbitration statutes.

Laches

A doctrine from the law of equity holding that a party that unjustifiably delays acting on a right for an excessive period of time can lose the opportunity to go forward at a later date. Laches can be asserted even if a contractual time bar was not invoked in the past. It operates on the basis that witnesses with a clear recollection of the facts and pertinent evidence may no longer be available because of the delay in proceeding with a cause of action.

Last-chance agreement

A grievance settlement that allows an individual to return to work, usually without back pay, but specifies that dismissal will be the penalty for any further wrongdoing. Arbitrators sometimes include a proviso in an award stating that a reinstated employee is being given a last chance.

LCIA

London Court of International Arbitration.

LCIA Rules

The arbitration rules of the London Court of International Arbitration.

Lex arbitri

Latin term referring to the arbitration law applicable to the conduct of the arbitration.

Lex fori

Latin term referring to the law applicable in the seat of the arbitration.

Lex mercatoria

Latin term referring to legal principles and customs established by commercial practice.

Leading question

Questions which often are used for preliminary matters on direct examination but most commonly are used on cross-examination.

Language of the arbitration

Language used in the parties’ written and oral submissions, in the procedural orders and in the award(s) issued by the arbitrators. It is chosen based on joint agreement of the parties, usually in the arbitration clause, or is otherwise decided by the arbitral tribunal. The flexibility of the arbitral procedure allows the parties and the arbitrators to provide for the most appropriate solutions, the only limits to the imagination of the parties being the costs of translation and interpretation. Thus, it is possible to foresee an arbitration in several languages, for example, with each party expressing itself orally in its own language while the procedural orders and the award are drafted in only one language. It is also possible for the written submissions and the award to be drafted in two different languages.

Lex Mercatoria

International trade usages and general principles of law developed by arbitral awards, resulting from the convergence of national laws, or stated by public or private international organisations. Parties submitting their disputes to arbitration may direct the arbitrators to apply a national law or may submit their dispute for resolution under the lex mercatoria alone.

London Court of International Arbitration – LCIA

Arbitral institution based in London that has established its own arbitration rules. The LCIA, inaugurated in 1892, is the most important arbitration institution in England for international disputes.

Maintenance of standards

A contract provision preserving previous practices and benefits even if not expressly identified in a successor labor agreement.

Make-whole relief

A remedy providing back pay and benefits to an employee, often offset by interim earnings.

Management rights

A contract clause stating that certain rights are reserved to management unless otherwise specified in the bargaining agreement. Typically, management rights include the specification or assignment of work schedules, duties, job descriptions, operational methods, and production standards, for example.

Materiality

Refers to the the degree of importance of a particular piece of evidence to the matter in dispute.

Mediation

The most common type of alternative dispute resolution, mediation is a procedure whereby a mediator is appointed to facilitate the parties seeking to resolve their dispute by improving their ability to communicate, with the objective of negotiating a settlement agreement. Once the settlement agreement is signed, it becomes binding like any other contract.

MFN

Most Favoured Nation.

Model Law

Arbitration rules drafted by the UNCITRAL, which served as a basis for numerous national arbitration laws.

Most favoured nation clause

In bilateral investment contracts, contractual provision according to which countries must be treated equally by the host country. If a host country offers to a trading partner more advantageous conditions, such as lower tax on a certain type of products, then other trading countries may be able to rely on a most favoured nation clause to benefit from the same advantage.

Multi-contract arbitration

Arbitral dispute where claims originate from several contracts.

Multi-party arbitration

Arbitration with three or more parties, which is common in practice.

Multi-tiered dispute resolution clause

Contractual provision including additional stages that must be passed through by the parties before initiating arbitration, such as first endeavoring to amicably settle their dispute before resorting to international arbitration.

Mediation

A method of resolving labor disputes whereby a disinterested third party listens to the arguments of both the employer and the union and then suggests methods of reconciling the dispute. Unlike arbitration, the mediator’s proposed solutions are not binding on either party.

Mediation-arbitration (Med-arb)

A procedure agreed upon by the parties that authorizes the same individual to assist the parties in negotiating a settlement as a mediator and thereafter to function as an arbitrator to decide the dispute if a settlement is not reached.

Multiparty Arbitration

Arbitration involving more than two parties. Multiparty arbitration can create procedural complications that need to be considered during the drafting of an arbitration clause or during the conduct of an arbitral proceeding. Multiparty arbitration does not pose significant problems when the parties consist of two, clearly-defined groups having common interests and a common procedural position (claimant or defendant), with each side being able to nominate an arbitrator. When this is not the case, difficulties can arise with respect to the constitution of the arbitral tribunal. According to a decision of the French Cour de cassation, each party has, in principle, the right to nominate an arbitrator. Many institutional arbitration rules take this into account by requiring the arbitral institution to appoint all members of the tribunal if the parties have been unable to agree to an alternative procedure.

Net Book Value

Original cost of an item less any depreciation or amortization.

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958

This important international convention renders enforcement of arbitral awards possible in 148 countries.

New York Convention

The “Convention on the Recognition and Enforcement of Foreign Arbitral Awards” issued in 1958 by an international conference under the aegis of the United Nations mainly aims at facilitating the enforcement of arbitral awards. The States Parties undertake to recognize and to enforce foreign arbitral awards issued in another State Party, unless the defendant in the enforcement action can establish the existence of one of the limited grounds established under the Convention for refusing to enforce the award. The Convention grounds exclude any review by the enforcement court of the merits of the dispute. On 27 September 2010, Fiji became the 145th State Party to the Convention, which facilitates the international movement of awards, and is one of the most important instruments of international arbitration.

Objections

Objections to evidence are made by an advocate who takes issue with a line of questioning or the introduction of other evidentiary material into the evidentiary record of the hearing. Typical objections are that the testimony is irrelevant, speculative, or hearsay.

Offer of proof

A narrative description of a proposed line of examination presented to an arbitrator when an advocate is seeking to introduce evidence that the opposing party believes is irrelevant. The summary preserves the record in the event the evidence is excluded and an attempt later is made to overturn the award. The same term also applies when seeking to streamline the introduction of witness accounts by permitting a party to stipulate that a witness, if called, would testify consistent with the description set forth in the offer. A party accepting an offer of proof is not agreeing to the truth of the statement but only that the witness would say what is described in the offer if called to testify.

Opinion evidence/Opinion testimony

Opinion evidence involves the belief or impression of a witness about facts in a case. Opinion testimony is in contrast to matters that are known personally to a witness through the physical senses, such as sight, smell, or hearing.

Partial award

Decision on one or several specific issues, rendered prior to the final award, for instance on jurisdiction.

Party-appointed arbitrator

Arbitrator selected by a party, typically a co-arbitrator.

Pathological arbitration clause

Poorly drafted arbitration clause which renders uncertain its validity and hence the possibility of recourse to arbitration.

PCA

Permanent Court of Arbitration.

Privilege

Legal principle according to which a party can refuse to produce evidence, such as documents.

Procedural measures

Measures of an arbitral tribunal concerning the conduct of arbitral proceedings.

Procedural order

Order made by the arbitral tribunal concerning the conduct of the proceedings.

Parol evidence

Describes a verbal discussion or agreement that sheds light on the interpretation of a written agreement.

Past practice

A policy or activity that is consistent, longstanding, known to, and accepted by the parties. Past practice evidence usually is offered to shed light on ambiguous contract language.

“Pathological clause”

Term used to describe an arbitration clause, or more generally an arbitration agreement, whose defective drafting does not allow the constitution of an arbitral tribunal or the appointment of a sole arbitrator without the intervention, not anticipated by the parties, of the “supporting” judge – or even renders it impossible to establish arbitral jurisdiction. In this last situation, the arbitration agreement is null and void or cannot be applied and the State Courts regain jurisdiction to settle the dispute.

Per diem fee

An arbitrator’s daily rate for hearings. It also is applied for cancellations and postponements during an arbitrator’s cancellation notice periods.

Prima facie case

A case in which evidence presented by one party will be sufficient for that party to prevail if not contradicted by rebutting evidence.

Public policy consideration

The application of certain objectives relating to health, morals, and integrity of government that external law seeks to advance. Such considerations may be raised during an arbitration hearing or serve as the basis for court review once an arbitration award is rendered.

Procedural law

The set of rules applicable to the conduct of the arbitral proceedings, it is determined by the parties, directly or indirectly by reference to arbitration rules, or by the arbitral tribunal without reference to a national law. It should not be confused with either the substantive law or the arbitration law.

Provisional and conservatory measures

Measures devoted to preserving a situation of fact or of law, to preserving evidence or ensuring that the ultimate award in a case will be capable of enforcement. Decisions on provisional or conservatory measures do not involve any prejudgment of the decision on the merits. Depending on the exact circumstances, the local arbitration law of the seat and the applicable arbitration rules, these measures in principle may be decided both by a judge (cf Supporting judge) and the arbitral tribunal.

Quantum

Amount of money payable by the losing party.

Quantum meruit

Latin expression meaning “the amount it deserves.” It is a method of assessing damages according to what appears reasonable in the circumstances.

Recognition of awards

Acknowledgement by a state court that an arbitral award is binding.

Redaction

Deletion of parts of documents under the legal principle of privilege.

Redfern Schedule

Standard schedule often used by parties and arbitral tribunals to manage document requests.

Remission

Return of an award to an arbitral tribunal by a national court for a new decision.

Reply

Claimant’s memorial in defence to a Respondent’s counterclaim.

Request for Arbitration

Also known as notice of arbitration. Written document sent by a claimant to an arbitral institution to start arbitration proceedings.

Respondent

Party against which arbitration proceedings are conducted by the claimant.

Rebuttal

The phase of a hearing that follows presentation of each side’s principal case in which a party calls a witness to rebut testimony and evidence that the other side entered earlier during its case-in-chief.

Relevant evidence

Evidence that tends to prove or disprove facts in a case.

Remedy

The action or procedure that is followed in order to enforce a right (such a seniority) or to obtain damages for injury to a right.

Rules of evidence

A set of rules governing what evidence should be admitted during a proceeding, typically designed to prevent unreliable evidence from being considered. While state and federal courts prescribe firm rules to govern the offer and acceptance of evidence, these rules are much more relaxed in labor arbitration.

Request for arbitration

The initial claim or writ filed by the claimant that starts the arbitral proceedings. Its form and content vary according to the applicable law, the provisions of the arbitration rules agreed by the parties, and the provisions of the arbitration clause.

SCC

Stockholm Chamber of Commerce.

Scrutiny of awards

Service offered by certain arbitral institutions to review an award before it is approved to be sent to the parties.

Sealed offer

Offer made by one party to another to try and achieve an amicable settlement.

Separability

Legal principle according to which an arbitration clause is independent from the contract in which it appears. Thus, even if the contract is not valid, the arbitration clause will remain effective.

SIAC

Singapore International Arbitration Court.

Sole arbitrator

Arbitral tribunal composed of one member only.

Statement of Claim

First set of submissions filed by a claimant.

Statement of Defence

First set of submissions filed by a respondent, as a reply to a claimant’s statement of claim.

Statement of Rejoinder

Second set of submissions filed by a respondent, as a reply to a claimant’s statement of reply.

Statement of Reply

Second set of submissions filed by a claimant, as a reply to a respondent’s statement of defence.

Substantive law

The rules applicable to the merits of the dispute such as the relevant contract law or tort law.

Sequestration

The exclusion from a hearing of witnesses who will be testifying. Individuals who are not excluded from the hearing – even if they will later be testifying – include the parties’ representatives and individual grievants.

Seniority system

A system that grants employees employment preferences according to the employees’ length of service.

Settled Record

A concept used in discipline cases to limit the introduction of evidence or to avoid re-trying a case that previously was resolved, either by an earlier arbitration decision or by past abandonment of the claim. The record is deemed settled because the opportunity to challenge the discipline was available and now has passed, and the record is complete for future reliance by the parties. A settled record typically is used to demonstrate the progressive disciplinary steps that were taken in the past or to show an employee’s prior notice that the violation of a rule or policy would lead to discipline.

Shop steward

The Shop Steward (or union representative or union steward) in a unionized workplace is a member of the union whose job it is to represent and defend the interests of the other bargaining unit employees in various discussions with management, including but not limited to, the processing of grievances. His or her function is to act as a liaison between the employees and management, to serve as a sounding board for union member concerns or complaints, and to take part in grievance handling. In order to anticipate employee grievances and avoid labor/management conflict where possible, shop stewards are generally well versed in the terms and provisions of the collective bargaining agreement and are likely to discuss with management any breaches of that agreement. The Shop Steward also serves as a conduit for information, memos, and policy statements by the union. As a rule the Shop Steward is an employee of the company but enjoys certain rights in the execution of his/her union duties. For example, the agreement may provide a certain number of hours per week during which the Shop Steward may engage in union-related business while still receiving pay from the employer. It is often up to the Shop Steward to advise employees when they should file a grievance and assist them in doing so. An equally important function is to screen employee complaints and provide guidance for employees who may feel they have been aggrieved. This function aims at maintaining a smooth working relationship between management and employees and avoiding frivolous grievances.

Stare decisis

The principle that prior arbitration decisions should serve as a guide or precedent and control the determination of the arbitrator’s decision in the case at hand.

Submission agreement

Used by parties who wish to present a dispute to an arbitrator in the absence of a collective bargaining procedure or other employment agreement that authorizes arbitration. The submission usually identifies the nature of the dispute, the source of the arbitrator’s authority, the issue and relief to be decided, and the relief available.

Subpoena

A document formally requesting the attendance of a witness at a hearing.

Subpoena duces tecum

A document formally requesting the production of documents or other records at a hearing.

Summary judgment

After a party believes it has established that there is no material question of fact in the case before the arbitrator, that party may ask for summary judgment by the arbitrator without proceeding further in hearing or consideration of the case. The arbitrator need not necessarily grant the asking party’s request.

Seat of arbitration

Initially the physical place where the arbitration proceedings take place, the seat of arbitration today refers to the legal situs of the arbitration proceedings — linking the arbitration procedure and the award to a particular, national legal system. The arbitration award is thus deemed rendered at the seat of the arbitration. The seat of arbitration is determined by the parties, usually in the arbitration agreement or, in the absence of party agreement, by the arbitral institution or the arbitration tribunal. The choice of the seat of arbitration involves important legal consequences. Among other things, the choice of the seat will determine whether national courts will support or interfere with the arbitral process, will determine whether the benefits of enforcement under the New York Convention will be available, and will determine the competent courts to hear any action to set aside the arbitral award.(See also Why the Seat Matters)

Singapore International Arbitration Centre (SIAC)

Established in 1991, the Singapore International Arbitration Centre has become a leading arbitral institution in Asia. SIAC-administered arbitrations may apply the UNCITRAL Rules of Arbitration or SIAC’s own arbitration rules, which were last revised in 2010.

Sole arbitrator

A single individual, as opposed to an arbitral tribunal, to whom a dispute is submitted for resolution by arbitration. The arbitrator is nominated either by joint agreement of the parties, by the institution that the parties have identified in the arbitration agreement, by an “appointing authority,” or by the “supporting” judge.

Substantive law

Rules and principles of law applicable or applied to the resolution of a dispute on its merits. Their origin may be State law (national law), public international law or privately determined law (such as via a contractual agreement to apply lex mercatoria). When the substantive applicable law has not been chosen by the parties, the arbitrators apply the substantive law they deem appropriate taking into account the reasonable expectations of the parties. A distinction has to be made between the substantive law and the procedural law.

Supporting judge

Used to describe the judge who intervenes to lend support to an arbitration by resolving procedural difficulties, especially during the constitution of the arbitral tribunal (in connection with the appointment or challenge of an arbitrator), in evidentiary matters or to grant provisional and conservatory measures.

Swiss Chambers’ Court of Arbitration and Mediation (Swiss Chambers)

Swiss Chambers was founded in Basel 2004 by the Chambers of Commerce of Basel, Berne, Geneva, Lausanne, Lugano, Neuchâtel and Zurich. Swiss Chambers offer arbitration in accordance with the Swiss Rules of International Arbitration. Initially limited to arbitrations with their seat in Switzerland, since August 2004, arbitrations under the Swiss Rules can be seated anywhere in the world. Since 2007, the Swiss Chambers also offers services in Commercial Mediation applying the Swiss Rules of Commercial Mediation.

Terms of Reference

Document detailing the missions of the arbitral tribunal as well as the parties’ backgrounds and positions, and a key feature of ICC arbitration.

Total Cost Method

Formula used to calculate damages. It takes into account all the costs incurred, whether or not they are due to the claimant’s actions.

Trifurcation

Division of the arbitral proceedings into three phases, each dealing with a different issue such as jurisdiction, liability or costs.

Truncated tribunal

Arbitral tribunal where originally-appointed members have either been removed, have resigned or have passed away.

Turnkey contract

Construction contract where the owner literally only has to “turn the key” when the project is completed, e.g., no additional work is required.

Terms and conditions of employment

Employees generally have the right to join together to address concerns at work and to seek to improve their terms and conditions of work. Some examples of subjects found to be included in the phrase “terms and conditions,” include rates of pay, wages, hours, fringe benefits, safety, workload, staffing, layoff procedure, and a grievance procedure. It may be an unfair labor practice for an employer or a union to refuse to bargain on a topic deemed to be a “mandatory subject of bargaining.” Although no statute expressly defines all the “terms and conditions” of employment, if bargaining over the subject would resolve a significant aspect of the employer-employee relationship, it is more likely to be considered a mandatory subject of bargaining.

Terms of Reference

The terms of reference are a characteristic of ICC arbitration and certain other institutional arbitration. Under the ICC arbitration rules, it is prepared by the arbitral tribunal and includes at a minimum: the parties’ and arbitrators’ names and addresses, a summary of the parties’ respective claims, the main rules applicable to the proceedings, the place of arbitration, and, if appropriate, a list of issues to be resolved. It is signed by the parties, unless one of them refuses to sign, in which case it is submitted for approved by the ICC International Court of Arbitration. The main purpose of terms of reference is to define the dispute clearly, such that the parties are not to present new claims beyond the limits of the terms of reference without the authorisation of the arbitrators.

UNCITRAL

United Nations’ Commission on International Trade Law.

UNCITRAL Model Law on International Commercial Arbitration, 1985

A model arbitration law drafted by the UNCITRAL, a division of the United Nations. It served as basis for numerous national arbitration laws. The Model Law was last amended in 2006.

Unfair labor practice

violation of a national or state labor law by management or a union. Principal examples include interference with organizing, discrimination against an individual for union activity, and bad faith bargaining.

UNCITRAL

The United Nations Commission on International Trade Law, which is the principal legal organ of the United Nations in the field of international commercial law, empowered by the General Assembly to promote the progress of international commercial law’s harmonisation and unification. In this context, UNCITRAL has created several instruments in the field of arbitration, including arbitration rules applicable to ad hoc arbitrations and also used by certain arbitral institutions, and a model law on international commercial arbitration which has been totally or partially adopted by numerous States in their domestic laws.

Voir dire

A method of examining an expert witness (or a juror) as to his or her qualifications for testifying.

WIPO

World Intellectual Property Organisation.

Witness statement

Written statement made by a witness, which may replace questioning at a hearing.

Zipper clause

A provision in a labor agreement, sometimes also known as an integration clause, which states that the agreement is a full and complete understanding of the parties upon completion of negotiations.