Study On The Difference Of Labor Dispute Arbitration Between China And America

Labor arbitration is a worldwide popular legal system for labor dispute settlement. After years of efforts, the labor arbitration system has been preliminary set up in our country and plays an important role in labor dispute dealing field. Especially the"Labor Dispute Mediation and Arbitration Law"promulgated on Dec 29th,2007 improved the labor arbitration system much by formulating detailed stipulations on all respects and made it more exercisable which at the same time push it to a more important position. With the reform of employment system centered on labor market, the establishment, modification and cancellation of the labor contract between the laborer and the employment unit are turning to be governed by the labor market which make the subject and content of labor relationship and the regulation means for various of labor relationships changing. Such changing and development lead to the increase of the labor dispute. However, comparing to the situation of the increasing labor disputes, the labor dispute arbitration system in our country shows much defects including as follows: lack of arbitration characteristic, lack of independency arising from the vague legal status, no enforcement of"three party principal"of the arbitration institute, defected link of the arbitration procedure with the litigation procedure, etc. These defects made the labor arbitration system in our country hard to meet the requirement of the dealing of the labor dispute and therefore the improvement and innovation thereof become necessary.Although ligitation plays an importance role in U.S.A, the parties are always introduced to solve theirs labor disputes in the means of mediation and arbitration. Therefore, labor dispute arbitration is of great importance in American system of solving labor disputes. Labor dispute arbitration is a non-government way for the parties to solve labor disputes in U.S.A, which leaves them great sui juris to select arbitration. Beside the legally compulsory arbitration, most others arise our of the arbitration clause pre-stipulated in labor contracts & collective contracts. The american labor arbitration institutions are non-administrative neutral organization who provide arbitrators and working condition for the relevant party to choose. Arbitrators are independent individuals, who might change their career from lawyer, professor, judge, and so on. The party selects arbitrator wholly based on his trust in his capability and legal experience. Therefore the arbitrators can handle a case independently. A kind of 'mini-trial' process shall be usually went through during the arbitration procedure in U.S.A., under which the arbitrators shall hold a simple process of hearing and find out the main facts and dispute points. The arbitrators shall obey the certain professional rules during hearing, evidence collecting, afterwards hearing and making awards to ensure that case to be settleld timely and fairly. Arbitration award shall be final and binding. Once the arbitration award is made, it shall be obeyed by the parties. If one party refuses to accept the award, he may go to the court. But the court will affirm the arbitration award except that there's no arbitration jurisdiction over the case or the arbitration procedure is illegal or other situations. Such relationship between arbitraiton and litigation will help to improve the authority of labor arbitration award and the effeciency of labor dispute settlement.There are many aspects of American labor dispute arbitration system worth for us to use for reference in our country inculding the follows: strenghening the arbitrational nature of the labor dispute arbitration, entitling the parties to select arbritration as the way to settle labor disputes freely including entitle them to make agreement on the selection of the arbitration institutaion and arbitrators; confirming the arbitration institution with compeletly independent statute, condensing the hearing procedure; developing a summary procedure for simple cases through which the awards can be made upon the facts is investigated and ascertained; streighening the relation between the arbitration and litigation; abolishing the system of putting arbitration as preceding procedure of litigation.Based on the study on the difference of arbitraiton system in China and in America and the using of American system for reference, suggestions of improvement of labor dispute arbitration in our country is put forth here including four aspects as follows: setting up real arbitration system and compeletly independent arbitration insitutaion, enforcing"three parties principle"among the labor dispute arbitration insitutaion; streighening the relation between the arbitration and litigation and implement the system of"Separating arbitration from litigation, the award and judgement shall be final and binding respectively."; setting up the inside supervision, industry supervision and judicial supervision system.