Browsing by Author "Johansson, Tatu"

This thesis examines the current status of statutory arbitration, a variant of arbitration with their justification stemming from a legislative reference instead of the parties’ consent in the form of an arbitration agreement. The focus of this research is particularly in the ability of statutory arbitration to function as a form of arbitration which can be customized to the needs of public policy doctrine. Public policy and arbitrability doctrines, dictating which types of disputes can be submitted to arbitration, have been slowly eroding in the past decades, and this trend is likely to continue. Statutory arbitration could be used as a means of compromising the interests of public policy and those of the proponents of larger arbitrability. For this purpose an examination into the functionality of statutory arbitration is needed. This functionality analysis involves legal dogmatic examination of the general legal framework of statutory arbitrations as well as the problematic aspects of the procedure. The thesis will also propose some possible solutions to these problems, particularly so far as they are an impediment to a more widespread use of statutory arbitrations. Statutory arbitration is not an exact term, and various groupings have been proposed in the past to be included in this term. The thesis employs both past and present legislation in order to analyse its relationship to arbitration. This is done to ascertain what is required of a statutory arbitration and what distinguishes it from conventional arbitration. The role of party autonomy in statutory arbitrations, particularly in comparison with conventional arbitration, has been quite unclear. The effects of party autonomy can be divided into those concerning the choice of dispute resolution venue and those regarding the actual procedure. As it stands, statutory arbitrations do not necessarily limit a party’s ability to choose a different forum for dispute resolution, but can instead be divided into one of three categories based on their compulsivity. Moreover, the division of labour between arbitrators and parties is possibly even more complex in statutory arbitral proceedings than in conventional one. Party autonomy over procedural rules is somewhat diminished in statutory arbitration. Some of the problematic nature of statutory arbitrations stems from its role as a statutory means of dispute resolution. This naturally leads to questions regarding access to justice in such procedures. However, ECtHR case law, particularly its Bramelid case, shows that even mandatory statutory arbitration is not seen as an impediment to accessing justice. However, it is uncertain whether the comparably high procedural costs of statutory arbitration can be justified in a way which fulfils the views of ECtHR Ainey case. Finally, while problematic from a procedural perspective, the possibility of appealing a statutory arbitral award may be necessitated by constitutional requirements. However, even then it is recommended that the appeals procedure is changed to a more uniform and simplistic appearance, with the current legislative environment creating a far too disperse means of appealing. Enforceability of statutory arbitral awards is also highly problematic both domestically and abroad. Statutory awards are not automatically applicable under the Enforcement Code. Some awards could technically be enforced through the appeals procedure, but this method is not available to all statutory arbitrations. Furthermore, international treaties on enforcement, such as the New York Convention or the Brussels I Regulation do not apply to statutory arbitration. Ultimately, statutory arbitration can respond to some of the criticism against the extension of arbitrability to new types of disputes, based on both the suspected lack of sufficient expertise in such arbitrators and the lack of legal protection for certain parties. Examples of various statutory arbitrations show that both these venues of criticism can be countered successfully. Generally, the susceptibility of statutory arbitration to legislator’s will ensures that prospective criticism can be addressed using various legislative contrivances.