http://goo.gl/tsMit9 Arbitration Law TALLINN UNIVERSITY OF TECHNOLOGY
Faculty of Social Sciences
Tallinn Law School
Anna-Liisa Aasrand
Constitutional Analysis of an Arbitration Restriction in Estonia
Regarding the Termination of Employment Contracts
Bachelor Thesis
Supervisor: Maria Claudia Solarte Vasquez LLM
Tallinn 2012
1
Declaration
I hereby declare that I am the sole author
of this Bachelor Thesis and it has
not been presented to any other
university of examination.
Anna-Liisa Aasrand
12 May 2012
The Bachelor
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TALLINN UNIVERSITY OF TECHNOLOGY Faculty of Social Sciences Tallinn Law School Anna-Liisa Aasrand Constitutional Analysis of an Arbitration Restriction in Estonia Regarding the Termination of Employment Contracts Bachelor Thesis Supervisor: Maria Claudia Solarte Vasquez LLM Tallinn 2012 1 Declaration I hereby declare that I am the sole author of this Bachelor Thesis and it has not been presented to any other university of examination. Anna-Liisa Aasrand 12 May 2012 The Bachelor Thesis meets the established requirements Supervisor Maria Claudia Solarte Vasquez “ ..... “ .................... 2012 Accepted for examination “ ..... “ ...................... 2012 Board of Examiners of Law Bachelor’s Theses …………………………… 2 Abstract Purpose – The purpose of this paper is to examine the proportionality and justifiability (necessity) of a ban of arbitration in cases of the termination of employment contracts as stated in § 718 chapter 2, section 2 of the Code of Civil Procedure of Estonia. On the other hand, § 11 of the Constitution of the Republic of Estonia maintains that rights and freedoms may be restricted only in accordance with the Constitution. These restrictions must be necessary in a democratic society and must not distort the nature of the rights and freedoms restricted. Thus the question: Is the restriction of the use of arbitration in the termination of employment contracts necessary in a democratic state and/or is there anything that can be improved/changed in that matter? Design/methodology/approach – The paper used a comparative study and analytical method, specifically constitutional analysis. Comparison data were obtained from German, Netherlands, Italian, Sweden and Great Britain legislations as well as UNCITRAL Arbitration Rules, Model Laws and New York Convention of 1958 in order to test the research hypotheses. Findings – Results revealed that the arbitration ban restricts employees’ fundamental rights and it is not a necessary restriction. Originality/value – The paper uses comparative study and constitutional analysis to explain the differences of (historically and geographically) closely connected points of legislation and the reasons of these. Results support that the arbitration restriction regarding the termination of employment contracts should be altered or removed from the Estonian arbitration law. Paper type – Bachelor’s thesis 3 List of abbreviations AAA American Arbitration Association ACAC Advisory, Conciliation and Arbitration Service ADR Alternative Dispute Resolution AISCC the Arbitration Institute of the Stockholm Chamber of Commerce ArbGG German Employment Courts Act (Arbeitsgerichtsgesetz) CCP Code of Civil Procedure ECHR the European Convention on Human Rights ECOSOC United Nations Economic and Social Council ECtHR European Court of Human Rights ICC International Chamber of Commerce UN United Nation UNCITRAL United Nations Commission on International Trade Law US United States of America ZPO German Civil Procedures Act (Zivilprozeßordung) 4 Table of Contents 1. INTRODUCTION .............................................................................................................. 5 2. ALTERNATIVE DISPUTE RESOLUTION AND ARBITRATION ................................ 7 3. COMPARATIVE STUDY ON ARBITRATION ............................................................. 11 3.1. Germany .................................................................................................................... 12 3.2. Italy ............................................................................................................................ 14 3.3. The Netherlands ......................................................................................................... 15 3.4. The Great Britain ....................................................................................................... 16 3.5. Sweden ....................................................................................................................... 17 3.6. The New York Convention of 1958 .......................................................................... 18 3.7. UNCITRAL Arbitration Rules .................................................................................. 19 3.8. UNCITRAL Model Laws .......................................................................................... 20 4. CONSTITUTIONAL ANALYSIS ................................................................................... 21 4.1. Right of Recourse to the Court .................................................................................. 25 4.2. Free Self-realisation ................................................................................................... 28 4.3. Jurisdiction ................................................................................................................. 29 4.4. Independence of Courts ............................................................................................. 30 4.5. Accordance with the Constitution ............................................................................. 32 4.5.1. Formal requirements .............................................................................................. 32 4.5.2. Substantial requirements ........................................................................................ 34 4.5.2.1. Suitability ........................................................................................................... 35 4.5.2.2. Necessity ............................................................................................................ 36 4.5.2.2.1. Institutional vs. ad hoc proceedings ................................................................ 37 4.5.2.2.2. The institution ................................................................................................. 41 4.5.2.2.3. Future dispute clauses ..................................................................................... 42 4.5.2.3. Proportionality .................................................................................................... 43 5. CONCLUSIONS ............................................................................................................... 45 6. REFERENCES .................................................................................................................. 49 6.1. Books and Independent Publications ......................................................................... 49 6.2. Articles and contributions to edited works ................................................................ 50 6.3. Other sources ............................................................................................................. 51 6.4. Internet sources .......................................................................................................... 52 6.5. Table of cases ............................................................................................................ 54 6.6. Table of legislative acts ............................................................................................. 55 5 1. INTRODUCTION “Discourage litigation. Persuade your neighbourhoods to compromise whenever you can.” Abraham Lincoln1 As the worst possible solution to a dispute between states is going to war so too is going to court in case of a conflict between corporations and individuals. Estonia first regulated arbitration on January 1, 2006 in its Code of Civil Procedure. The CCP of Estonia regulates both national and international arbitration (as well as ad hoc arbitrations) whereas the UNCITRAL Model Law, from where the drafters retrieved most of the provisions, regulates the international commercial arbitration.2 The CCP has defined the arbitral tribunal as an organisation that can finally and bindingly resolve private law disputes, subject to the agreement of the parties (CCP § 746, point 2). Arbitral tribunal can either be a permanent institution (CCP § 716) such as the Court of Arbitration of the Estonian Chamber of Commerce and Industry or ad hoc organisation established for a specific dispute. Estonia also recognises the rules of New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention)3. Poudret and Besson (2007) have adopted the following definition: “Arbitration is a contractual form of dispute resolution exercised by individuals, appointed directly or indirectly by the parties, and vested with the 1 Darek Mose and Brian H. Kleiner (1999). The Emergence of Alternative Dispute Resolution in Business Today, Equal Opportunities International, Volume 18 Number 5/6, p. 54-61 2 Ilona Nurmela et al. (2008). Rahvusvaheline Eraõigus, Loengud, published by Juura, Tallinn, p. 288 3 Villu Kõve (2010). Aegumise Peatumine Hagi Esitamise või Muu Menetlustoimingu Tegemisega Kohtus või Kohtuväliselt, Juridica, no.7, p. 529 6 power to adjudicate the dispute in the place of state courts by rendering a decision having effects analogous to those of a judgment.”4 One particular provision concerns this study; paragraph 718, section 2, point 2 of the Estonian CCP states that “an arbitral agreement shall be null and void if its object is a dispute concerning the termination of an employment contract.” 5 The argument to support this restriction comes from the desire to protect the weaker party in the dispute, that being usually the employee.6 The main claim presented in this paper is that such an arbitration restriction is not constitutional. The following pages support the argument that the restrictive provision making the arbitral award inaccessible option for dispute resolution in the matter of termination of employment contracts is disproportionate and unnecessary. In order to test this hypothesis this paper uses qualitative methodology. A comparative method and constitutional analysis to contrast Estonian laws with other states’ laws that have been used in the drafting process of Estonian arbitration laws, or that are otherwise relevant, e.g. sources to take into account when developing Estonian arbitration laws in the light of this research (such as liberal English and Swedish arbitration laws). The comparative section includes an overview of arbitration provisions from the German, Italian, Dutch and Swedish arbitration sections in Civil Procedure Codes, English arbitration laws, as well as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, UNCITRAL Arbitration Rules and UNCITRAL Model Laws of 1985 will be included. 4 Jean-François Poudret and Sébastien Besson (2007). Comparative Law of International Arbitration, Second Edition, published by Sweet & Maxwell Ltd, p. 3 5 Estonian Code of Civil Procedure, RT I 2005, 26, 197, entered into force 1 January 2006, available in English at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X90041&keel=en&pg=1&ptyyp=RT& tyyp=X&query=tsiviilkohtumenetluse 6 Adam Samuel (1989). Jurisdictional Problems in International Commercial Arbitration: A Study of Belgian Dutch, English, French, Swedish, Swiss, U.S. and West German Law, published by Schulthess Polygraphischer Verlag,, p. 141-143 7 The constitutional analysis consists of two parts: first, determination of restricted fundamental laws and second, examination of the necessity/usefulness of the restriction. This last part is subdivided into three: assessment of its suitability, necessity and proportionality. 2. ALTERNATIVE DISPUTE RESOLUTION AND ARBITRATION There are two sub-forms of alternatives to going to courts – determinative and elective. Determinative process involves a third party, an arbitrator, adjudicator or expert who determines the outcome of the dispute, which is binding.7 Elective process on the other hand is built on the discussions and negotiations. It is more of a creating a forum where to discuss the differences whereas the settlement of the dispute is up to the parties. It may involve a legal expert or mediator who may express his/her opinion.8 The main Alternative Dispute Resolution (the ADR) procedures are negotiation as well as renegotiation, mediation, conciliation, binding and non-binding expert opinions, online dispute resolution and arbitration.9 Out of the different methods of ADR procedures, arbitration is the most similar to litigation. It is also the only method that is recognised by the courts.10 In fact, some forms of third party involvement – like arbitration – as dispute resolution methods existed even before legal procedures took shape. Now, the importance of this approach compared to courts has diminished in Europe and it has left with a secondary position as a dispute resolution tool. However, arbitration is still largely preferred in commercial law disputes and private law disputes between states.11 The process of arbitration is much alike to the court proceedings since many of the litigation elements are present: statements of the case, disclosure of documents, witness statements, expert witnesses and an arbitrator(s) hearing the evidence and giving the judgement. Arbitral 7 Nigel Broadbent (2009). Alternative Dispute Resolution, Legal Information Management, Cambridge Journals, no. 9, published by The British and Irish Association of Law Librarians, available at http://journals.cambridge.org, downloaded on March 6, 2012, p. 195–198 8 Ibid. 9 Ilona Nurmela et al. (2008). Rahvusvaheline Eraõigus, Loengud, published by Juura, Tallinn, p. 281 10 Ibid. 11 Ibid. p. 287 8 awards are also enforceable in courts and recognized internationally.12 However, the main difference from litigation is that arbitration is based on the parties’ agreement as in a contract. The choice of the tribunal, the scope of the arbitration, and the applicable rules of procedure (including applicable law, place of arbitration, language and techniques of the proceedings) all depend on the agreement of the parties.13 Now again, ADR gathers its popularity and it can be said that it is one of the fastest growing areas of law. In arbitration proceedings the arbitrator serves mostly as a fact-finder and a decision-maker, he assesses and decides the dispute, which could be binding but does not necessarily have to be. If the decision is binding then one cannot go to court with the same issue unless he tries to prove, among other things, that the arbitrator was biased or failed to receive all the evidence (see also supra note 28).14 Estonian Code of Civil Procedure (the CCP) for example, allows 30-day period to make a petition for annulment.15 ADR was introduced in the United States (the US) already after the World War I. The Arbitration Society of America passed the first modern arbitration statute in 1920s’ in New York. Around this time, a first company added an arbitration clause in its contracts. The explosive growth of ADR started in the 1980s'. Now in many jurisdictions in the US there are even compulsory court sponsored ADR programs to ease the court’s workload from cases that could settle without litigation. However, in the field of labour arbitration there is growing criticism and debate on the fairness and legality of mandatory employment arbitration. For example, there is a lot of deliberation recently whether the in-house arbitration system that is mandatory to the employee lacks fairness if the ‘judge’ is in fact his own employer16 or is somehow connected to the employer, which gives rise to conflict of interests and possibly lack of neutrality. Surely, the award may be challenged in a court and set aside if the 12 Nigel Broadbent (2009). Alternative Dispute Resolution, Legal Information Management, Cambridge Journals, no. 9, published by The British and Irish Association of Law Librarians, available at http://journals.cambridge.org, downloaded on March 6, 2012, p. 195–198 13 Ilona Nurmela et al. (2008) Rahvusvaheline Eraõigus, Loengud, published by Juura, Tallinn, p. 287 14 Bennett A. Neale and Brian H. Kleiner (2001). How to Conduct Arbitration Effectively, Managerial Law, Vol. 43, No. 1/2, p. 112-115 15 Code of Civil Procedure, § 752 (1), (RT I 2005, 26, 197), entered into force 1 January 2006, available in English at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X90041&keel=en&pg=1&ptyyp=RT& tyyp=X&query=tsiviilkohtumenetluse 16 Bennett A. Neale and Brian H. Kleiner (2001). How to Conduct Arbitration Effectively, Managerial Law, Vol. 43, No 1/2, p. 112-115 9 procedures prove to be impartial or prejudiced. However, the courts in the US tend to look at such claims very restrictively and giving large respect to the arbitrators’ decisions.17 In Britain, there were two different concepts of labour dispute: disputes of interest (negotiation of terms of employment) and disputes of rights (interpretation and application of existing terms). In 1974 the Advisory, Conciliation and Arbitration Service (ACAC) was created, which was later given the duty to smooth industrial relations in the course of informal dispute resolutions such as mediation, arbitration and conciliation. It runs both collective and individual conciliations. The number of collective conciliations is however decreasing with the lowering numbers of members in trade unions. Individual conciliations on the other hand are becoming more numerous. If conciliation does not work out, then the parties may choose to arbitrate. The conciliator helps the parties to draw up the terms of reference for arbitration. The ACAC (if turned to that particular body) then appoints an arbitrator (or three for state level issues) from a pool of persons they have listed. The hearing and arbitrator’s report are private. 18 Arbitration agreement is typically described as a “private contract with procedural effects”. As to the validity of the agreement, the civil law provisions apply. Usual requirements among other things are the procedural and legal capacity of the party to enter into an agreement and the right to dispute the specific issue. Some issues, such as the access to or custody of children, are not dispositive, for example.19 Supporters highlight that the advantages of arbitration compared to litigation is its flexibility as the parties are able to choose almost all aspects of the proceedings.20 They can choose the arbitrator who may be a lawyer, engineer or architect, etc. depending on the nature of the case.21 Having an expert or someone who is familiar with the details of the subject and laws on the issue helps to save a lot of time, which make the proceedings time efficient and ultimately faster than court proceedings. The parties can also select the rules, the applicable 17 David W. Rivkin and Donald Francis Donovan (2006). Debevoise & Plimpton LLP, Arbitration World – Jurisdictional Comparisons, Second Edition, published by The European Lawyer Ltd, p. 406 18 Ramsumair Singh (1995) Dispute resolution in Britain: Contemporary Trends, International Journal of Manpower, Vol. 16 No. 9, p. 42-52. Published by MCB University Press 19 Bengt Lindell (2004). Civil Procedure in Sweden, published by Författaren och Iustus Förlag AB, p. 228 20 LAWIN, Arbitration in the Baltics, 2008, p. 9 21 Bennett A. Neale and Brian H. Kleiner (2001). How to Conduct Arbitration Effectively, Managerial Law, Vol. 43, No. 1/2, p. 112-115 10 laws and the place for the arbitration (the forum).22 The latter three options attach the international arbitration also the notion of neutrality because the selection of a neutral forum and laws may be more favourable than submitting the issue to a national court of one of the parties to the dispute.23 Weigand (2002) has put it in a simple way “arbitration [...] provides for a neutral tribunal in a neutral jurisdiction”.24 Another great benefit is confidentiality since neither media nor public is allowed to take part of the proceedings and the awards are not accessible to third parties.25 Estonian CCP § 741 ensures the confidentiality requirement which binds the arbitrator to keep in private any information that became available in the proceedings, unless the parties agree otherwise.26 In fact, this is held to be one of the most important aspects of arbitration, especially in business disputes,27 where the parties may want to maintain their trade secrets, for instance. Other benefits of the arbitrations are that the proceedings are mostly cheap and fast (comparing to litigation). However, these aspects are arguable. There are arbitral proceedings where the costs may even raise above the court litigation fees due to the complexity of issues, necessity to rent rooms and counsel, etc. Furthermore, there are instances where an arbitration institution is so overloaded that some decisions take up to two years. Therefore, there are occurrences where it can be said that arbitration is neither faster nor cheaper than litigation. On the other hand, as there are rather few possibilities to appeal an arbitral award28, it is nevertheless more common that arbitrations end up being cheaper and faster than court procedures.29 Another positive aspect 22 Adrian Winstanley (2006). Arbitration World – Jurisdictional Comparisons, Second Edition, published by The European Lawyer Ltd, p. ix 23 Geoff Nicholas and Bbriana Young, (2006). Ibid. p. xii 24 Frank-Bernd Weigand (2002). Practitioner’s Handbook on International Arbitration, published by C.H.Beck oHG, p. 7 25 LAWIN, Arbitration in the Baltics, 2008, p. 9 26 Estonian Code of Civil Procedure, RT I 2005, 26, 197, entered into force 1 January 2006, available in English at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X90041&keel=en&pg=1&ptyyp=RT& tyyp=X&query=tsiviilkohtumenetluse 27 Geoff Nicholas and Bbriana Young (2006). Arbitration World – Jurisdictional Comparisons, Second Edition, published by The European Lawyer Ltd, p. xii 28 Under the UNCITRAL Model Law, which is widely adapted to Estonian arbitration law, there are six grounds for challenging an arbitral award. There must have been an invalid agreement to arbitrate, lack of due process in the proceedings, procedural issues (such as the tribunal did not act as agreed by the disputants), arbitrability matters (discussed below), public policy concerns (award is in conflict with the public policy of the place of the arbitration) or that the tribunal exceeded its jurisdiction. Alan Redfern et al. (2004). Law and Practice of International Commercial Arbitration, Fourth Edition, published by Sweet & Maxwell Ltd, p. 413-421 29 Frank-Bernd Weigand (2002), Practitioner’s Handbook on International Arbitration, published by C.H.Beck oHG, p. 7-10 11 of arbitration is the final and binding awards (subject to limited challenges brought out in supra note 28) and enforceability (due to the widely accepted New York Convention, which binds the member states to recognise and enforce foreign arbitral awards).30 Estonian CCP, for example, sets clearly out in § 754, section 1 that the arbitral awards made in foreign countries will be recognised and enforced according to the New York Convention of 1958.31 3. COMPARATIVE STUDY ON ARBITRATION Arbitration is a private dispute resolution mechanism that is now, by some extent, regulated with laws and international agreements. Most of the European Union (EU) member states have arbitration laws or the arbitration is regulated in the Code of Civil Procedure.32 At the same time, many states have used the United Nations Commission on International Trade Law Arbitration Model Laws (the UNCITRAL Model Laws) of 1985 as guidance to regulate the arbitration and many others the same Model Laws but the amended version (in 2006). Estonia belongs to the latter group.33 Those states are also called as the ‘model law countries’.34 Therefore, the core principles of Estonian CCP emanate from the UNCITRAL Model Laws of 1985 with amendments as adopted in 2006 and the New York Convention of 1958. Nevertheless, it became clear to the drafters that the international agreements alone are not sufficient to prepare a competent law. Therefore, they used other sources, namely the German Arbitration Law from the Tenth Book of Civil Procedures (Zivilprozeßordung; ZPO) as well as the laws of the Netherlands and Italy.35 30 LAWIN, Arbitration in the Baltics, 2008, p. 9 31 Estonian Code of Civil Procedure, RT I 2005, 26, 197, entered into force 1 January 2006, available in English at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X90041&keel=en&pg=1&ptyyp=RT& tyyp=X&query=tsiviilkohtumenetluse 32 Ilona Nurmela et al. (2008). Rahvusvaheline Eraõigus, Loengud, published by Juura, p. 287- 288 33 1985 - UNCITRAL Model Law on International Commercial Arbitration, with amendments as adopted in 2006, available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration_status.html 34 Ilona Nurmela et al. (2008). Rahvusvaheline Eraõigus, Loengud, published by Juura, p. 288 35 Draft of the Estonian Code of Civil Proceeding, 208 SE I, Explanatory Note (In Estonian), available at http://www.riigikogu.ee/?op=emsplain&content_type=text/html&page=mgetdoc&itemid=033370012 12 There are various limitations to arbitration in different countries in order to protect the economically weaker party. These limits, however, are not uniform.36 Estonian CCP or any other states’ arbitration laws do not define the concept of ‘arbitrability’. However, this term is often used in case law or legal literature. Arbitrability means that the subject of the dispute is “capable of settlement by arbitration”.37 Areas that are now and then seen as not appropriate for settlement by arbitration are, for example, competition, intellectual property, consumer, family, securities, bankruptcy and employment law-related disputes. States are free to decide upon which disputes are or are not arbitrable.38 As mentioned before, the main protest to allow arbitration in employment disputes comes mostly from the fright that the employer uses his better bargaining power to leave the worker without his rights under the contract. Different countries have approached this issue in different ways. Some prohibit employment arbitration altogether, some try to build safeguards to protect the weaker party and others permit it throughout.39 This part of the research explores whether any of the relevant states have arbitration limits as regards to employment relations. In addition, the laws of arbitration in the Great Britain and Sweden are also investigated because these states have extensive experience on the field of arbitration. In addition, a short overview of UNCITRAL Model Laws and New York Convention of 1958 is provided given that these are sources from where Estonia based its CCP. In addition, UNCITRAL Arbitration Rules are briefly reviewed because these are set of rules, which could be employed, among other circumstances, when creating a (national) employment institution for arbitration, for example. 3.1. Germany The German Civil Procedure (the ZPO) dates back to 1877. From then on, the provisions about arbitration were subject to some changes but the main structure remained the same. Since 1998, however, the arbitration laws went through fundamental changes. Germany substituted most of the old provisions with UNCITRAL Model Laws.40 The importance of 36 Jean-François Poudret and Sébastien Besson (2007). Comparative Law of International Arbitration, Second Edition, published by Sweet & Maxwell Ltd, p. 314 37 Ilona Nurmela et al. (2008). Rahvusvaheline Eraõigus, Loengud, published by Juura, p. 307 38 Ibid. 39 Adam Samuel (1989). Jurisdictional Problems in International Commercial Arbitration: A Study of Belgian Dutch, English, French, Swedish, Swiss, U.S. and West German Law, published by Schulthess Polygraphischer Verlag, p. 141-143 40 Prof. Dr. Gerhard Wagner (2002). Practitioner’s Handbook on International Arbitration, edited by Frank-Bernd Weigand, published by C.H.Beck oHG, p. 685 13 arbitration has been steadily increasing from then on.41 According to the old law, the idea of arbitrability was attached to the power of the disputants to settle their issue. In other words, if they did not have the right to dispose of the dispute on their own then they did not have the right to arbitrate it as well (normally, it means the party may not be a minor or under a guardianship). After the modifications, the ZPO indicates that the requirement of ‘the parties’ power to settle the dispute’ is limited to the non-fiscal issues. Now, all monetary claims are arbitrable as such.42 Section 1030 of ZPO provides: “(1) Any claim involving an economic interest can be the subject of an arbitration agreement. An arbitration agreement concerning claims not involving an economic interest shall have legal effect to the extent that the parties are entitled to conclude a settlement on the issue in dispute. (2) An arbitration agreement relating to disputes on the existence of a lease of residential accommodation within Germany shall be null and void. This does not apply to residential accommodation as specified in section 549 subs. 1 to 3 of the Civil Code. (3) Statutory provisions outside this Book by virtue of which certain disputes may not be submitted to arbitration, or may be submitted to arbitration only under certain conditions, remain unaffected.” 43 Despite the clear language of the first sentence of Section 1030 ZPO, the drafters insisted that some monetary claims should not be allowed to be referred to arbitration. By now, the German Federal Supreme Court has also held that there are some restrictions on arbitrability of certain pecuniary matters. The main concern, however, is protection of the interests of third parties.44 The legislator also intended to protect the public interest and thus added § 1030 Section 3, which holds that some provisions not written in the ZPO could nevertheless constitute as exceptions to the arbitrability of certain subject matters. The reason for limiting 41 Dr. Wolfgang Kühn and Ulrike Gantenberg (2006). Arbitration World – Jurisdictional Comparisons, Second Edition, published by The European Lawyer Ltd, p. 93 42 Prof. Dr. Gerhard Wagner (2002). Practitioner’s Handbook on International Arbitration, edited by Frank-Bernd Weigand, published by C.H.Beck oHG, p. 701 43 German Code of Civil Procedure, Tenth Book, published by Trans-Lex.org Law Research, available at http://www.trans-lex.org/600550 44 Prof. Dr. Gerhard Wagner (2002). Practitioner’s Handbook on International Arbitration, edited by Frank-Bernd Weigand, published by C.H.Beck oHG, p. 702 14 arbitrability in these cases is to avoid private proceedings over which the national authorities have no supervision. Such disputes are, for instance, over some aspects in intellectual property, corporate issues, family law disputes and employment proceedings. The Employment Courts Act (Arbeitsgerichtsgesetz – the ArbGG) covers employment arbitration in Germany. §101 Section 3 in ArbGG provides that the arbitration in employment matters is not governed by the ZPO and accordingly, § 1030 ZPO is not applicable in these issues. The ArbGG sat up a system of arbitral proceedings which orders for the representation of the parties (the management and unions) to collective wage agreements. Other labour issues are not arbitrable in Germany45, including disputes over the termination of employment contract. 3.2. Italy Italian law of arbitration went through a full reform in 1994 when the Civil Procedural Code was updated with the Act no. 25 of January 5. After this, Italian arbitration laws were found in Civil Procedure Code (CCP) of 1940, Act no. 28 of February 9, 1983 (the Amendment) and the Act no. 25 of January 5, 1994 (the Reform), altogether referred to as the Arbitration Law.46 Arbitration is not particularly widespread in Italy. It takes only a small share of proceedings compared to the courts. Most of the arbitrations are conducted on ad hoc basis. The reason for this unpopularity is that the arbitration in Italy is portrayed as an expensive and highly sophisticated mechanism.47 However, the laws of arbitration went through a reform in 2006 with the Decree no. 40 of February 2, 2006 (the Arbitration Law). Those laws are now found in Articles 806-840 of the Italian CCP. The aim was to make Italian arbitration laws more international, modern as well as flexible, and to lose the distinction between national and international arbitration. After this there has been a growth of popularity in using particularly institutional arbitrations.48 These reasons and the pattern is similar to one in Estonia. Article 806 of the Italian Code of Civil Procedure provides: 45 Rolf Trittmann and Inka Hanefeld (2007). Arbitration in Germany, published by Kluwer Law International, p. 112-126 46 Dr. Mauro Rubino-Sammartano (2002), Practitioner’s Handbook on International Arbitration, edited by Frank-Bernd Weigand, published by C.H.Beck oHG, p. 831 47 Ibid. p. 832 48 Nadia Milone (2011) Arbitration: the Italian Perspective and the Finality of the Award, Oñati Socio-Legal Series, vol. 1, no. 6, p. 3 15 “The parties may have the disputes arising between them decided by arbitrators, with the exception of the disputes provided for in Articles 409 and 442 (1), those concerning issues of personal status and marital separation and those other disputes which may not be the subject of a settlement”.49 As to the employment disputes, the Sections 4 and 5 of the Statute no. 553 of August 11, 1973 maintained that these are not arbitrable. Although, an exception is made, permitting arbitration if it is provided for by the law or by domestic collective agreements. Nonetheless, in these cases, too, the parties could have start court proceedings instead of arbitrations if they want.50 The new Arbitration Law provides the same conditions regarding employment arbitration.51 3.3. The Netherlands Arbitration laws in Netherlands are contained in the Arbitration Act, which is Book Four in the Code of Civil Procedure of 1986, consisting of Articles 1020-1076. This act includes a significant part of the case law that had developed before 1986. When composing this act the drafters used French and Swiss modern arbitration statutes as well as UNCITRAL Arbitration Rules and Model Law of 1985 on International Commercial Arbitration.52 The Dutch Arbitration Act does not make a distinction between ‘domestic’ and ‘international’ and it thus applies equally on both levels.53 In this way, the Netherlands is similar to England and Germany who have also decided to adopt a common law for both domestic and international arbitration. Italy and Estonia took that step in 2006 when modernizing their arbitration laws. Sweden, on the other hand, just added some of the international provisions to its arbitration law. 54 49 Italian Code of Civil Procedure, Title VIII of Book IV – Arbitration, published by lexmercatoria.org, available at http://www.jus.uio.no/lm/italy.arbitration/landscape.pdf 50 Dr. Mauro Rubino-Sammartano (2002). Practitioner’s Handbook on International Arbitration, edited by Frank-Bernd Weigand, published by C.H.Beck oHG, p. 831 51 Nadia Milone (2011) Arbitration: the Italian Perspective and the Finality of the Award, Oñati Socio-Legal Series, vol. 1, no. 6, p. 4 52 Dr. Vesna Lazic and Gerard Meijer (2002). Practitioner’s Handbook on International Arbitration, edited by Frank-Bernd Weigand, published by C.H.Beck oHG, p. 889 53 Ibid. p. 890 54 Jean-François Poudret and Sébastien Besson (2007). Comparative Law of International Arbitration, Second Edition, published by Sweet & Maxwell Ltd, Zurich, p. 881-882 16 Arbitration in Netherlands has considerably expanded in the 20th century and is now broadly used alternative, both institutional and ad hoc-wise.55 Unlike the old arbitration law, the current Arbitration Act does not include a provision about the capacity of a participant to enter into an arbitration agreement. The applicable provisions from the Civil Code or other statutes determine this issue. However, the Act does define subject-matter arbitrability in Article 1020 Section 3: “The arbitration agreement shall not serve to determine legal consequences of which the parties cannot freely dispose“56. This means that the issues of public policy are in the jurisdiction of judiciary and not arbitrable. Consequently, the courts have sole jurisdiction over disputes concerning the renting of houses, real estate and business accommodation as well as agricultural leases, for example. However, unlike in Estonia, the disputes over employment contracts are arbitrable in the Netherlands.57 3.4. The Great Britain The arbitration laws of England emerge from both the common law (from 1698) and statutes. Until 1997, the arbitration laws were fragmented between three Arbitration Acts of 1950, 1975 and 1979 as well as some other statutes and case law. This, however, was inconvenient for the users of arbitration and therefore the Departmental Advisory Committee on Arbitration Law was asked to work out a new act. There was a debate whether the UNCITRAL Model Laws should be incorporated into English law but the Committee disapproved the idea.58 The new Arbitration Act came into force in 1997 and its objective was to “improve arbitration as fair, speedy and cost-effective way of resolving disputes”59. It was added that the Act includes UNCITRAL Model Law ‘as much as possible’.60 This Act was meant to be as a broad statute but not as a complete code.61 As regards today, the use of arbitration is increasingly growing 55 Dr. Vesna Lazic and Gerard Meijer (2002) Practitioner’s Handbook on International Arbitration, edited by Frank-Bernd Weigand, published by C.H.Beck oHG, p. 890 56 Dutch Code of Civil Procedure, Book Four: Arbitration Act, Art. 1020, available at http://www.jus.uio.no/lm/netherlands.arbitration.act.1986/1020.html 57 Dr. Vesna Lazic and Gerard Meijer (2002). Practitioner’s Handbook on International Arbitration, edited by Frank-Bernd Weigand, published by C.H.Beck oHG, p. 897 58 Karen Maxwell (2002) Practitioner’s Handbook on International Arbitration, edited by Frank- Bernd Weigand, published by C.H.Beck oHG, p. 593 59 Ibid. p. 594 60 Ibid. 61 Audley Sheppard (2006). Arbitration World – Jurisdictional Comparisons, Second Edition, published by The European Lawyer Ltd, p. 64 17 in England.62 In fact, London is claimed to be one of the leading international commercial arbitration centres of the world.63 The new Arbitration Act does not address the questions of personal or objective arbitrability. Concerning the personal arbitrability the Act provides that the power to make an agreement is dependent on the laws of the state with which the agreement is most closely attached or the laws of the parties’ residence or domicile. The issue of objective arbitrability is left intact because it is not fully formed area with little judicial directions. The House of Lords disapproved the suggestion to add a list of subjects that are not arbitrable. It based its disapproval on the argument that it is ‘ultimately unachievable’ to make an exhaustive list of such subjects.64 On the contrary, it is required by different legislations that some disputes must be passed on “statutory arbitration”, such as disputes relating to industrial relations, for example. The bottom line is, however, that the Act allows the courts to develop the rules on arbitrability as custom to the Common Law countries. Although, criminal matters and family law disputes are not deemed arbitrable.65 3.5. Sweden Sweden has been recognising arbitration as an alternative for dispute resolution for a very long time – the first statute regarding arbitrations was passed already in 1887. Current law on arbitration is the Arbitration Act of 1999. The Act deals with both domestic and international questions. The substance of it is very similar to that of UNCITRAL Model Law.66 The leading arbitral institution in Sweden is the Arbitration Institute of the Stockholm Chamber of Commerce (the AISCC).67 It was established in 1917 and it is interesting to observe that it gained its popularity during the 1960s’ and 1970s’ while resolving disputes between the West 62 Karen Maxwell (2002). Practitioner’s Handbook on International Arbitration, edited by Frank-Bernd Weigand, published by C.H.Beck oHG, p. 596 63 Audley Sheppard (2006). Arbitration World – Jurisdictional Comparisons, Second Edition, published by The European Lawyer Ltd, p. 63 64 Karen Maxwell (2002). Practitioner’s Handbook on International Arbitration, edited by Frank-Bernd Weigand, published by C.H.Beck oHG, p. 600 65 Audley Sheppard (2006). Arbitration World – Jurisdictional Comparisons, Second Edition, published by The European Lawyer Ltd, p. 67 66 Kaj Hobér and Hans Strempel (2002). Practitioner’s Handbook on International Arbitration, edited by Frank-Bernd Weigand, published by C.H.Beck oHG, p. 1001 67 Ibid. p. 1002 18 and Eastern Europe.68 Every institution has its own rules and if the parties want to settle their dispute in an institution, as opposed to ad hoc proceedings, then the institutional rules become applicable. In case the parties choose to go for ad hoc arbitration then the provisions of Arbitration Act apply.69 The Arbitration Act gives a rather wide range of the subject matters of arbitration when stating in Section 1 that “matters in respect of which the parties may reach a settlement may, by agreement, be referred to one or several arbitrators for resolution.” 70 However, it is stressed that only the matters that can be resolved in a civil action can be referred to arbitration. Issues requiring penalty or punishment (criminal matters) are not arbitrable. The majority issues in family law are also not arbitrable. As regards to the employment issues, though, the parties are apparently free to agree to arbitrate in current, as well as future disputes.71 In general, it can be said that the Netherlands, Italy and Germany are more restrictive than Sweden and England with their rather liberal approach towards arbitration. 3.6. The New York Convention of 1958 In the light of the growing use of international arbitrations, the United Nations saw the need to create a uniform legislative framework for recognising and enforcing arbitral awards that are rendered in other states or in the same state where tried to be enforced but have foreign elements, such as some other state’s laws that are applied to the proceedings (non-domestic awards).72 ICC produced the first draft in 1953 and it was called the “Convention on the Recognition and Enforcement of International Arbitral Awards”. However, the concept of ‘international 68 Hans Bagner and Mattias Rosengren (2006). Arbitration World – Jurisdictional Comparisons, Second Edition, published by The European Lawyer Ltd, London, p. cxxi 69 Kaj Hobér and Hans Strempel (2002). Practitioner’s Handbook on International Arbitration, edited by Frank-Bernd Weigand, published by C.H.Beck oHG, p. 1002 70 The Swedish Arbitration Act, Section 1, SFS 1999:116, Arbitration Institute of Stockholm Arbitration Institute website, available at http://www.chamber.se/?id=23746 71 Jean-François Poudret and Sébastien Besson (2007). Comparative Law of International Arbitration, Second Edition, published by Sweet & Maxwell Ltd, Zurich, p. 313 72 1958 - Convention on the Recognition and Enforcement of Foreign Arbitral Awards - the "New York" Convention, available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention.html, accessed on May 3, 2012 19 arbitral awards’ was too ground-breaking thought at the time and so the United Nations Economic and Social Council (ECOSOC) changed the it to the “Convention for the Recognition and Enforcement of Foreign Arbitral Awards”. 73 The fundamental idea of this framework was to avoid the discrimination of domestic arbitral awards against non-domestic and foreign arbitral awards, and the uniform recognition of all of these in every jurisdiction of the member states. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, shortly called as the New York Convention became into force in June 7, 1958. All of the United Nation’s (UN) Member States, the states that are Party to the Statute of International Court of Justice or any state, which is a part of some specialised UN’s agency have the right to access and be a member of this Convention.74 There are currently 146 Parties to the Convention, including Estonia (from 1993).75 As to the arbitral awards rendered on the subject of the termination of employment contracts, this convention would be useful only under two conditions. Firstly, the arbitration should have an international element and secondly, such subject matter should be arbitrable in Estonia. 3.7. UNCITRAL Arbitration Rules The General Assembly of United Nations established the United Nations Commission on International Trade Law (UNCITRAL) in 1966. UNCITRAL adopted its Arbitration Rules in 1976.76 UNCITRAL Arbitration Rules are a broad and thorough set of rules that regulate all aspects of the arbitration, including how and on what terms the arbitrators are chosen, how the arbitral proceedings are carried through, how the solution (award) is given – its formalities, interpretation and the effect. It also provides a model clause that can easily be inserted in the 73 Pieter Sanders (1998). The Making of the Convention, “Enforcing Arbitration Awards under the New York Convention: Experience and Prospects”, papers presented at "New York Convention Day", United Nations Publication, June 10, p. 3, available at 74 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) - the "New York" Convention, available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention.html, accessed on May 3, 2012 75 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958). Status, available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html, accessed on May 3, 2012 76 The UNCITRAL Guide: Basic facts about the United Nations Commission on International Trade Law, (2007). United Nations Publication, p. 1, available at http://www.uncitral.org/pdf/english/texts/general/06-50941_Ebook.pdf, accessed on May 4, 2012 20 contracts. Those rules, upon agreement between the parties, may be used in both institutional as well as ad hoc proceedings.77 In 2006, however, the Commission made a proposition that the Rules should be modified in order to stay contemporary and viable. The main concern was to make the proceedings (through more detailed rules) more efficient and reasonable. The spirit and the structure of the original text, however, remained the same. The revised rules have been in force since 2010.78 Although UNCITRAL Arbitration Rules are designed for commercial disputes of national and international as well as institutional and ad hoc nature,79 parts or all of it may very successfully be applied to national employment dispute arbitrations. 3.8. UNCITRAL Model Laws UNCITRAL Model Law on International Commercial Arbitration was adopted in 1985. The intention behind this was to help the states to introduce reforms in their arbitration procedures to make the arbitrations more efficient and international commercial arbitration friendly. The Model Laws cover all phases of arbitration including all questions related to the tribunal and the award. States can enact these model laws in whole or adopt part of these to their national legislation.80 Estonia, as mentioned before, did so in 2006 by using UNCITRAL Model Laws as guidance when drafting the arbitration section in its Code of Civil Procedure. The same year some of the reforms were introduced in the UNCITRAL Model Laws itself in order to make these more comprehensive and meet the needs of contemporary international contract practices.81 One of the closest followers of UNCITRAL Model Laws is Germany, whereas it can be said the opposite as regards to Sweden. England, on the other hand, has only taken its structure and terminology, leaving the rest up to the traditional rules and case law to be determined. As 77 UNCITRAL Arbitration Rules (1976), available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1976Arbitration_rules.html, accessed on May 3, 2012 78 UNCITRAL Arbitration Rules (as revised in 2010), available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2010Arbitration_rules.html, accessed on May 3, 2010 79 Ibid. 80 UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006, available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html, accessed on May 4, 2012 81 Ibid. 21 German laws are the main source of Estonian laws, it appears that Estonia, too, is one of the closest followers of UNCITRAL Model Laws. 4. CONSTITUTIONAL ANALYSIS Although according to the principle of private autonomy, the parties are free to shape their legal relationships. Furthermore, approving arbitral tribunals only helps to save the costs of courts to the state and reduce the national courts’ workload. However, it is apparent that because of the public interests the states cannot leave all the disputes to be resolved by the parties themselves. There is an understanding that the courts have to be assigned an exclusive competence to resolve some specific disputes because of fundamental public policy concerns. § 718, section 4 of the Estonian CCP states that it may be established by laws to prohibit to refer certain disputes to arbitration.82 For example, criminal matters are to be referred only to court proceedings.83 Criminal matters (as well as family law disputes) are also not arbitrable in England.84 Sweden as well, although being a very liberal state concerning the variety of subjects it allows to be arbitrated, provides an exclusive jurisdiction to courts in criminal and the majority of family law matters.85 Therefore, the arbitration clause in a contract must not provide for settling some issues that are not resolvable by way of arbitration. Otherwise, the arbitral award is invalid and the tribunal cannot conduct arbitral proceedings based on that clause. For example, in international commercial disputes, the prohibition of resolving bankruptcy issues through arbitration is justified because of the state’s interest to protect the functioning of its economy. Estonian CCP, however, has also prohibited arbitration in connection with the termination of an employment contract (CCP § 718, section 2, point 2).86 The disputed provision is relevant because it raises a fundamental question: Why, in an individualistic and liberal state the government still wants to intervene into people’s lives and make decisions on their behalf, even if to protect the (arguably) ‘weaker party’? Whether the employee nowadays is certainly, 82 Code of Civil Procedure, RT I 2005, 26, 197, entered into force on January 1, 2006, available also at https://www.riigiteataja.ee/akt/128122011044 83 Code of Criminal Procedure, RT I 2003, 27, 166, entered into force on July 1, 2004, available also at https://www.riigiteataja.ee/akt/117042012006 84 Audley Sheppard (2006). Clifford Chance LLP, Arbitration World – Jurisdictional Comparisons, Second Edition, published by The European Lawyer Ltd, p. 67 85 Jean-François Poudret and Sébastien Besson (2007). Comparative Law of International Arbitration, Second Edition, published by Sweet & Maxwell Ltd, Zurich, p. 313 86 Maarja Torga (2007). Vahekohtuklausli Kehtetuse Alused Rahvusvahelistes Kaubanduslepingutes, Juridica, no. 6, p.393 22 and in every case, the weaker party of a transaction, is an independent issue that could be subject of further analysis. Many legal professionals recognise the weakness of excessive regulating. Foreign authors such as Mill (1859)87, Bryce (1920)88, Hardin (1979)89 and more recently Blair in his autobiography (2010)90 state that the over-regulation puts restraints to economy and that issue seems to be alarmingly growing. They seem to agree that not all people can be protected against themselves in every aspect of life. In the domestic legal literature, former Chancellor of Justice Jõks (2011) has also stated that over-regulation and abundance of different acts obscures the clarity of legal order. He asserted that the inefficient and unpractical regulations do not accord to the new needs of the society. Consequently, this may restrain the labour market as well as competition and therefore slow down the economic growth of a state. In order to improve these problems he suggests, among other things, to add thorough explanatory notes with the draft bills which state precisely why the restrictions are established and what are the purposes of these. He also stresses that every restriction has to have a legitimate purpose and be proportional.91 Whether that arbitration restriction is necessary and whether it distorts the nature of the restricted rights and liberties is examined in this chapter. If constitutional rights are somehow restricted, then the first step in the analysis is to make clear what is the scope of that right or freedom and what conditions have to be present to allow the restriction. It must also be identified whether the restriction is necessary in a democratic society.92 § 11 of the Constitution of the Republic of Estonia (the Constitution) states: 87 John Stuart Mill, Essay on Liberty (1859), Harvard Classics, Vol. 25, published by Longman, Roberts & Green, available in internet at http://www.bartleby.com/130/, accessed on May 10, 2012 88 James Bryce (1920). The American Commonwealth, The National Government, the State Government, vol. 1, published by Macmillan, 1920, p. 406 89 Clifford M. Hardin, Ph.D (1979) The effects of Over-Regulation, Food, Drug, Cosmetic Law Journal, vol. 50, p. 50-57, downloaded from HeinOnline (http://heinonline.org) on May 10, 2012 90 Tony Blair (2010). A Journey, published by Hutchinson, p. 645, 668, 685-686 91 Allar Jõks (2011). Õiguskantsler Kaitseb Õigussüsteemi Legitiimsust, Riigikogu Toimetised, No. 24, available in internet at http://www.riigikogu.ee/rito/index.php?id=11857 92 Taavi Annus, Berit Aaviksoo (2002). Riigi, kohalike omavalitsuste, perekonna ja muude isikute kohustused põhiseaduslike õiguste tagamisel sotsiaalhoolekande valdkonnas, Juridica, Special Edition, p. 6-61, http://www.juridica.ee/juridica_et.php?document=et/articles/2002/Eriv%C3%A4ljaanne/46639.PRN.p rv.php 23 “Rights and freedoms may be restricted only in accordance with the Constitution. Such restrictions must be necessary in a democratic society and shall not distort the nature of the rights and freedoms restricted”.93 This paragraph sets out three conditions that the restriction must meet. Firstly, every restriction has to be in accordance with the Constitution (which means it has to be legal and follow due process). Secondly, the restriction has to be necessary in a democratic society (respectful of the doctrine of a free society) and thirdly, the restriction must not distort the nature of the rights and freedoms that are restricted (it must not set an inconsistency so that the initial meaning would be defeated in its purpose). 94 The question therefore is whether § 718, section 2, point 2 of the Estonian CCP which states that “an arbitral agreement shall be null and void if its object is a dispute concerning the termination of an employment contract” 95 restricts any of the rights and freedoms and if, then is the restriction in accordance with the Constitution? Rights and freedoms may only be limited in accordance with the Constitution. This means that every restriction that limits any fundamental rights has to be comply with all norms of the Constitution. 96 First, what are those 'fundamental rights'? Fundamental rights can be seen in two ways. These can be seen as material or formal rights. Fundamental rights in the material meaning are the rights that stem from the essential beliefs of a state. In a liberal rule of law state, these rights are seen as the individual rights for freedom. The flaw of this material view is that it bonds the meaning of fundamental rights with a concept of the state. Thus, according to this view the right for education, for example, 93 The Constitution of the Republic of Estonia, RTI, 28.06.2007, 43, 311, entered into force 3 July 1992, available in English et http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X0000K1&keel=en&pg=1&ptyyp=RT &tyyp=X&query=p%F5hiseadus 94 Eerik-Juhan Truuväli et al. (2002). Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Ministry of Justice, published by Juura, Õigusteabe AS, p.110 95 Estonian Code of Civil Procedure, RT I 2005, 26, 197, entered into force 1 January 2006, available in English at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X90041&keel=en&pg=1&ptyyp=RT& tyyp=X&query=tsiviilkohtumenetluse 96 Ibid. 24 does not belong to the fundamental rights, as it is not an essential right for freedom in the liberal traditions, even though it is placed in the II Chapter of the Constitution, which is named as “Fundamental rights, freedoms and duties”. 97 In a formal view, on the other hand, all rights and freedoms that are placed in the II Chapter of the Constitution are fundamental rights. Therefore, the fundamental rights are brought out in Paragraphs 8-55 of the Constitution.98 In general legal practice, it is enough to handle the fundamental rights as the rights that regulate the relationship between an individual and state. This meets, in general meaning, the formal concept.99 Ernits (1996) was on the opinion that it is more practical to tie the meaning of fundamental right to the formal criteria. There are also various provisions throughout the Constitution that have the same function as fundamental rights. Such is, for example, § 146 which gives the courts the independence to solely administer justice in accordance with the Constitution and laws. Therefore, this provision can be called as equal to the fundamental rights. 100 In contrast, Ernits (2011) has also brought out in one of his articles that (one of the strongest advocates of the material principle) Carl Schmitt argued that the problem with the formal criteria is that the constitution contains many other rights that are difficult to differentiate from fundamental one. Moreover, some of the rights that are not evident in the text of the constitution are nevertheless accepted as fundamental rights.101 In context of the current research, it is relevant to analyze the following provisions of the Constitution: §15, 19, 24 and 146, and examine whether any of these rights are restricted by this arbitration limit at issue. 97 Madis Ernits (1996). Põhiõiguste Mõiste ja Tähtsus Õigussüsteemis, Juridica, No. 9, p. 463- 471 98 Ibid. 99 Madis Ernits (2011). Põhiõigused, Demokraatia, Õigusriik, Tartu Ülikooli Kirjastus, p.142- 143 100 Madis Ernits (1996). Põhiõiguste Mõiste ja Tähtsus Õigussüsteemis, Juridica, No. 9, p. 463- 471 101 Madis Ernits (2011). Põhiõigused, Demokraatia, Õigusriik, Tartu Ülikooli Kirjastus, p.136- 137 25 4.1. Right of Recourse to the Court § 15 of the Constitution provide the right for everyone whose rights and freedoms are infringed to turn to court.102 It demands prima facie flawless and as efficient judicial protection as possible.103 The adverse effect of CCP § 718 section 2, point 2 to § 15 of the Constitution is that it excludes the option to go for arbitration proceedings if the dispute rises over the termination of employment contract and thus potentially deprives a person from effective legal protection. Although quite on the contrary, it may seem that that this provision intends to assure the maximum legal protection possible, it comes out from the following sections that this standpoint is arguable. The idea of effective legal protection is a central part of § 15 section 1, sentence 1, which provides the general right to turn to the court – the right that the people are entitled to when their rights and freedoms are violated. The general right to the judicial protection is systematically essential to accord to the Rule of Law principle established in § 10 of the Constitution. One must agree that the constitution, the laws and other rights and freedoms contained in legislation would be useless if the legitimate rights of these individuals would have no real chance to be defended, where appropriate, through fair and efficient judicial process.104 It is, however, often that arbitration is the most efficient process and protection as possible. As mentioned before, arbitration in flexible, confidential, and usually fast as well as cheap. For many employees this would most likely be the best solution in order to resolve disputes over termination of the contract. Furthermore, the necessity to solve the disputes over the termination of employment contracts as quickly as possible stems also from the fact that the issue concerns probably the only income of that person. Long proceedings however, may 102 The Constitution of the Republic of Estonia, RTI, 28.06.2007, 43, 311, entered into force 3 July 1992, available in English at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X0000K1&keel=en&pg=1&ptyyp=RT &tyyp=X&query=p%F5hiseadus 103 Eerik-Juhan Truuväli et al. (2002). Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Ministry of Justice, published by Juura, Õigusteabe AS, p.138 104 Indrek Teder, Chancellor of Justice (2012). Arvamus, Põhiseaduslikkuse järelevalve, Kohtumenetluses KrMS § 385 punktis 26 sätestatud piirangu põhiseaduslikkus, Opinion no. 9- 2/120581/1201975, 23.04.2012 26 radically worsen his or her living standards. In any case, illegal termination of an employment contract is not automatically void. In order to establish the illegality of the termination of a contract, one has two options now: to turn to court or labour dispute committee.105 Here are some arguments why arbitration should be as valid an option as these two. It is said that the greatest advantage of the labour dispute committee is its speediness. Its decision must not be made later than about one month from the filing date unless there are some exceptional circumstances. However, the greatest flaw of this committee is that the financial claim cannot exceed 10 000 Euros as set out the Individual Labour Dispute Resolution Act.106 § 100, section 4 of the Employment Contracts Act notes in its first sentence that: “If an employee cancels an employment contract extraordinarily for the reason that an employer is in fundamental breach of the contract, the employer shall pay the employee compensation to the extent of three months' average wages of the employee.” 107 Therefore, if the employee's three months salary, for example, exceeds 10 000 Euros then the claim will simply be reduced to meet the criteria. Another option is then of course the court but according to principle of the ‘reasonable length of the proceedings’, the solution is usually given in between a couple of months until a year or more, depending on the circumstances.108 The parallel could be drawn with Italy, for example, where arbitrations are mainly chosen to avoid the slow legal proceedings (which can last for years) as opposed to arbitration that, in 2008, took typically around 170 days.109 In response to lengthy judicial proceedings, Park 105 Heli Raidve, Mari Rask (2010). Töölepingu Seadus Praktikas, Kolmas Raamat, published by AS Äripäev, p. 104 106 Individual Labour Dispute Act, § 4 (11), RT I 2010, 22, 108, entered into force 1 January 2011, available also at https://www.riigiteataja.ee/akt/130062011005 107 Employment Contracts Act (Consolidated text), RT I 2009, 5, 35, entered into force 1 July 2009, available in English at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=XXXX060&keel=en&pg=1&ptyyp=R T&tyyp=X&query=t%F6%F6lepingu+seadus 108 Kaia Läänemets (19 February 2010). Töövaidlus: Kas Pöörduda Kohtusse või Töövaidluskomisjoni? Äripäev, available at http://raamatupidaja.ee/article/2010/02/19/Toovaidlus_kas_poorduda_kohtusse_voi_toovaidluskomisj oni 109 Nadia Milone (2011). Arbitration: the Italian Perspective and the Finality of the Award, Oñati Socio-Legal Series, vol. 1, no. 6, p. 3 27 (2011) has aptly stated that “justice too long delayed becomes justice denied”110. Section 28 (1) of the Rules of the Court of Arbitration of the Estonian Chamber of Commerce and Industry, on the other hand, sets clearly out that: “The Arbitration Court shall resolve the dispute as quickly as possible; however, not later than within six months of the delivery of the statement of claim and its annexes to the arbitrator or the arbitrator presiding over the arbitral tribunal.”111 Nevertheless, it is very common that parties do not file very complex claims in the labour dispute committees but choose courts instead in order to receive approach that is more competent.112 This indicates that the labour dispute committees are not (at least seen) as proficient institutions. Hence, there should be a third alternative which does not have a financial claim limit and is as fast as labour dispute committee and as competent as a court. It is logical to presume that the arbitral tribunal would be as competent as necessary since the parties themselves can choose the right specialists to rule on the dispute.113 In any case, adding another alternative makes the proceedings faster in every level and reduces the excessive workload of both the courts and the labour disputes. Moreover, ‘freedom of choice’ is a philosophical question, which will not be analysed further in this paper and it has already been well done by Aristotle (350 BC) who described the ability to ‘choose’ as one of the distinguishing features that differs humans from lower 110 William W. Park (2011). Arbitration in Autumn, Journal of International Dispute Settlement, Vol. 2, No. 2, p. 287–315, downloaded from http://jids.oxfordjournals.org/ at eIFL - Estonia (2005) on April 18, 2012 111 The Rules of the Court of Arbitration of the Estonian Chamber of Commerce and Industry, entered into force on January 1, 2008, available at http://www.koda.ee/public/ECCI_Court_of_Arbitration_Rules.pdf, accessed on May 1, 2012 112 Kaia Läänemets ( February 19, 2010). Töövaidlus: Kas Pöörduda Kohtusse või Töövaidluskomisjoni?,Äripäev, available at http://raamatupidaja.ee/article/2010/02/19/Toovaidlus_kas_poorduda_kohtusse_voi_toovaidluskomisj oni 113 Ilona Nurmela et al. (2008). Rahvusvaheline Eraõigus, Loengud, published by Juura, Tallinn, p. 287 28 animals.114 In most circumstances, people should be given the opportunity to exercise this ability. 4.2. Free Self-realisation The need for alternatives and freedom of choice bring us to the first sentence of § 19 of the Constitution which provides us with the right to free self-realisation.115 This provision is relevant because CCP § 718 section 2, point 2 does not allow to choose arbitration proceedings when the issue of the dispute is the termination of employment contract and thus, violates the fundamental right to freedom set out in § 19 sentence 1. Although this paragraph sounds laconic, its meaning as the centrepiece of fundamental rights must not be underestimated. The general right to freedom is derived from this provision. As the sentence 1 of § 19 has no particular object of freedom, the term ‘free self-realisation’ can be interpreted in countless ways. However, on the abstract level it has been viewed in two fundamentally different ways. First, it can be assumed that all of the important fundamental rights are named in the II Chapter of the Constitution. If so, then sentence 1 of § 19 should cover only the most dignified ways of self-realisation, i.e. those freedoms that are at least as important as the liberties listed in the catalogue. In that way, this provision would merely fill in the gaps, given that it covers only the areas of freedoms that were just inadvertently overlooked by the legislators. 116 Another approach is that since, unlike other fundamental rights, it has no concrete object of freedom; the purpose of it is the freedom itself, i.e. the general right to freedom. By that approach, the first sentence of § 19 covers all lawful freedoms. Lawful freedom consists in the permission to do and not do everything and anything that a person wants as long as the law does not prohibit it. It is also said that free self-realisation can be free only if everyone can define it in his or her own way 117 § 19, sentence 1 is lex generalis, which falls back whenever some specific right to freedom is restricted. This means that it has a subsidiary character, which means that its violation will not 114 Aristotle (350 BC). The Nicomachean Ethics, Book III, Chapter 2, translated by W. D. Ross, available also at http://www.constitution.org/ari/ethic_00.htm 115 The Constitution of the Republic of Estonia, RTI, 28.06.2007, 43, 311, entered into force 3 July 1992, available in English at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X0000K1&keel=en&pg=1&ptyyp=RT &tyyp=X&query=p%F5hiseadus 116 Eerik-Juhan Truuväli et al. (2008). Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Second Improved Edition, University of Tartu, published by Juura, p.196 117 Ibid. p. 197 29 be investigated when the scope of some other fundamental right is violated. Thus, it can be argued that as of employment relations, § 29 apply instead, which in essence covers the employment matters.118 However, the Supreme Court has ruled on that matter that § 29 do not regulate ongoing employment relations.119 The act of termination of a contract is nevertheless ‘still’ an ongoing relation and thus falls under the scope of § 19. Based on this, the possibility and ability to choose the best approach to solve a dispute through arbitration is free selfrealisation, which is breached with this arbitration restriction. 4.3. Jurisdiction The Constitution prohibits involuntary change of jurisdiction. Paragraph 24 declares in its first sentence that “no one shall be transferred, against his or her free will, from the jurisdiction of the court specified by law to the jurisdiction of another court”. 120 The purpose of this principle is to ascertain that firm and objective criteria is used to determine the most competent court and at the same time to avoid that the desired outcome dictates the choice of the court. 121 The invalidation of arbitration awards given in a dispute over termination of employment contract could be seen as involuntary transfer of arbitration's jurisdiction to other dispute resolution bodies. As mentioned previously, however, in many circumstances arbitration body would be the most competent and effective institution to solve a dispute. Nevertheless, it is clearly brought out in the commentary of the Constitution that the prohibition of involuntary change of jurisdiction principle covers ‘only’ state courts and not arbitration courts. On the other hand, it is also said that the reasons for regulating the rules of jurisdiction are to ensure as equal workload as possible throughout different courts and the best access to justice as possible.122 This raises a principal question of ‘why’ the prohibition of involuntary change 118 Ibid. p.196 119 RKPKJKo 11.06.1997 – RT I 1997, 50, 821; RKPKJKo 06.10.1997 – RT I 1997, 74, 1267; RKPKJKo 27.05.1998 – RT I 1998, 49, 752 120 The Constitution of the Republic of Estonia, RTI, 28.06.2007, 43, 311, entered into force 3 July 1992, available in English at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X0000K1&keel=en&pg=1&ptyyp=RT &tyyp=X&query=p%F5hiseadus 121 Eerik-Juhan Truuväli et al. (2002). Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Ministry of Justice, published by Juura, Õigusteabe AS, p. 211 122 Ibid. p. 212 30 of jurisdiction covers only litigation and excludes all other dispute resolution methods if the aim of this provision is only to make the administration of justice smoother and more just? 4.4. Independence of Courts § 146 - “Justice shall be administered solely by the courts. The courts shall be independent in their activities and shall administer justice in accordance with the Constitution and the laws”.123 This paragraph is not placed in the II Chapter of the Constitution (Fundamental Rights, Freedoms and Duties). However, as mentioned previously there are various provisions throughout the Constitution that have the same functions as fundamental rights. These provisions can be ranked at the level of the fundamental rights. § 146 is one of these.124 This raises the question whether the fact that the use of arbitration is limited and that accordingly, arbitral courts are dependent in their activities, restricts this provision. Although Paragraphs 148 and 149 of the Constitution define 'courts' as country, city, administrative, circuit and Supreme Court,125 there are other bodies created by different laws that have the duty to administer justice. Such bodies are for example arbitration courts, labour dispute committees and the Industrial Property Board of Appeal. The purpose of these is to reduce the courts' workload and speed up the settlements of disputes. However, it is stated in the commentary of the Constitution that these organs do not belong to the ‘national court system’.126 Then again, CCP § 4, section 4, sentence 1 provides: “During proceedings, the court shall take all possible measures to settle the case or a part thereof by compromise or in another manner by agreement of the parties if this is reasonable in the opinion of the court.”127 123 The Constitution of the Republic of Estonia, RTI, 28.06.2007, 43, 311, entered into force 3 July 1992, available in English at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X0000K1&keel=en&pg=1&ptyyp=RT &tyyp=X&query=p%F5hiseadus 124 Madis Ernits (1996). Põhiõiguste Mõiste ja Tähtsus Õigussüsteemis, Juridica, No. 9, p. 463- 471 125 Eerik-Juhan Truuväli et al. (2002). Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Ministry of Justice, published by Juura, Õigusteabe AS, p. 608 126 Ibid. p. 609 127 Estonian Code of Civil Procedure, RT I 2005, 26, 197, entered into force 1 January 2006, available in English at 31 The same section lists three ‘compromise procedures’: a draft of a contract of compromise presented to the parties, a proposal that the parties settle the dispute out of court or the use of the assistance of a conciliator.128 All these approaches are of essence the ADR methods. Furthermore, all these three options brought out above, as well as arbitration, are part of the ‘three-way system’ of ADR methods (means that the dispute is solved by an impartial and independent third party) as opposed to negotiations, for example. Negotiations and renegotiations are ‘two-way systems’ because the compromise is made between the parties themselves (no matter how many there are) and not proposed or decided by an intermediary, a third person129 (which would indeed leave the weaker party in a much unprotected situation). On these grounds, this paper suggests that arbitration should also be one legitimate compromise measure in the context of CCP § 4, section 4. As mentioned already, it is stated in the commentary of the Constitution that arbitration courts do not belong to the national court system. However, among many other academics, Maruste (1998), a former judge of the European Court of Human Rights, has discussed in one of his articles that the Constitution should be read progressively in the light of the changes and developments that take place in time, both nationally and internationally. Additionally, he maintains in the same way that our lives evolve and that should also be taken into consideration. History has shown that the interpretation of the role and substance of every constitution have changed during time.130 Arbitration has proved to be an effective dispute resolution system in many countries, including, in forefront of course the US131 and Sweden,132 due to the long history of practice and liberal view towards ADR methods. Additionally, the Supreme Courts in the US have http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X90041&keel=en&pg=1&ptyyp=RT& tyyp=X&query=tsiviilkohtumenetluse 128 Ibid. 129 Ilona Nurmela et al. (2008). Rahvusvaheline Eraõigus, Loengud, published by Juura, Tallinn, p. 281 130 Rait Maruste (1998). Põhiseadus ja Justiitsorganite Süsteem, Juridica, no.7, p. 326-327 131 Bennett A. Neale and Brian H. Kleiner (2001). How to Conduct Arbitration Effectively, Managerial Law, Vol. 43, No. 1/2, p. 112-115 132 Kaj Hobér and Hans Strempel (2002). Practitioner’s Handbook on International Arbitration, edited by Frank-Bernd Weigand, published by C.H.Beck oHG, p. 1001 32 strongly supported arbitration as an alternative to litigation by respecting its procedures and autonomy.133 4.5. Accordance with the Constitution The second aspect to look at is what is meant by 'in accordance'? Assessing the accordance has formal and material (substantial) dimension. In other words, fundamental rights are infringed if the restriction is either formally or substantially in breach with the Constitution.134 4.5.1. Formal requirements In order for a restriction to formally accord with the Constitution, the restriction has to meet all jurisdictional, procedural and formal rules that are in the Constitution. If the law is formally conflicting with the fundamental rights then there is no need to analyze the substantial constitutionality anymore.135 In fact, in a democratic rule of law state, no law is valid if it has not followed an established legal structure. Pursuant to the January 1, 2012 judgement of the Supreme Court of Estonia number 3-4-1-111-11, an act is illegal if the statutory procedures for passing a law have been breached.136 For example, laws have to be properly pronounced (§107 of the Constitution) and publicised (§3 and §108 of the Constitution) in order to be “sufficiently available”.137 Therefore, the law is considered sufficiently available if it is publicised electronically in Riigi Teataja website (http://www.riigiteataja.ee)138 and pronounced by the President.139 The President properly pronounced the CCP on May 9, 2005 as a decision no. 829140, it was published in Riigi Teataja on May 19, 2005 and came into force on January 1, 2006.141 The formal validity of a 133 134 Robert Alexy (2001). Põhiõigused Eesti Põhiseaduses, Juridica, Special Edition, p. 5-13 135 RKÜKo 03.12.2007, 3-3-1-41-06, para. 27 136 RKPJKo, 11.01.1995, III-4/A-12/94 – RT I 1995, 9, 112 137 RKPJKo 03.05.2001, 3-4-1-6-01 – RT III 2001, 15, 154 138 Eerik-Juhan Truuväli et al (2008). Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Second Improved Edition, University of Tartu, published by Juura, p.125 139 The Consitution of The Republic of Estonia, entered into force 03.07.1992, RT 1992, 26, 349, available also at https://www.riigiteataja.ee/akt/127042011002 140 RT I 2005, 26, 197, available at https://www.riigiteataja.ee/akt/898136 141 Code of Civil Proedure, Draft Procedures, The Parliament of Estonia, available at http://www.riigikogu.ee/?page=eelnou2&op=ems&eid=208&assembly=10&u=20120408055504 33 law can also be tested attending to the following requirements, for example the principles of ‘clarity’ and ‘legislative reservation’.142 The principle of clarity means that the restrictive law has to be sufficiently definite.143 Unclear regulation gives the public authorities the possibility to make arbitrary decisions.144 Thus, the norms have to be clear and comprehensible so that the subjects can reasonably foresee, with certain probability, the consequences of their actions. As regards § 718, section 2, point 2 in the CCP it seems that the wording: “An arbitral agreement shall be null and void if its object is a dispute concerning the termination of an employment contract“ is sufficiently unambiguous and predictable because it has both the condition and the effect presented in the provision. The principle of legislative reservation arose from the social contract theory whereby a state authority is given a monopoly of power.145 In Estonia it means that the Parliament has reserved the right to pass laws (’parliamental reservation’).146 This idea is embedded in Paragraph 104 Section 14, which reveals that “Courts Administration Act and court procedure Acts may be passed and amended only by a majority of the membership of the Riigikogu“.147 When passing the CCP, 71 members out of 101 of the Parliament voted ‘for’148 and thus properly adopted the legislation on March 20, 2005.149 142 Eerik-Juhan Truuväli et al (2008). Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Second Improved Edition, University of Tartu, published by Juura, p.150 143 Ibid. 144 RKPJKo 12.01.1994, III-4/A – 1/94 145 Eerik-Juhan Truuväli et al. (2008). Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Second Improved Edition, University of Tartu, published by Juura, p. 52 146 Ibid. p. 53 147 The Constitution of the Republic of Estonia, RTI, 28.06.2007, 43, 311, entered into force 3 July 1992, available in English at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X0000K1&keel=en&pg=1&ptyyp=RT &tyyp=X&query=p%F5hiseadus 148 Final voting, The Parliament of Estonia (April 20, 2005), available at http://www.riigikogu.ee/?op=ems&content_type=text/html&page=haaletus&hid=67252&new=0&u=2 0120408140311 149 Code of Civil Proedure, Draft Procedures, The Parliament of Estonia, available at http://www.riigikogu.ee/?page=eelnou2&op=ems&eid=208&assembly=10&u=20120408055504 34 4.5.2. Substantial requirements On the material dimension, the restriction has to have a legitimate reason and it has to be proportionate. The latter requirement comes from the second condition of § 11 (the restriction has to be necessary in a democratic society) of the Constitution. This idea originates from Articles 8-11 of the European Convention on Human Rights (the ECHR) and of Article 2 of ECHR's 4th Protocol.150 However, it is interesting to notice that ECHR never clearly mentions the principle of 'proportionality' in any of its texts. The idea of proportionality in ECHR system is related to the restrictions of the fundamental rights and freedoms and it is used in analysis of whether the restriction is in accordance with the Convention. 151 The European Court of Human Rights (the ECtHR) has interpreted this provision as a principle of proportionality. 152 By now, the Supreme Court of Estonia has precisely defined what is meant by the word 'proportional'. In one of its rulings, it states: “The principle of proportionality stems from the 2nd sentence of § 11, according to which the restrictions of rights and freedoms have to be necessary in a society. The conformity with the principle of proportionality is examined on three following levels – the suitability of the measure, the necessity and if it comes to that, the proportionality in its strict sense – the reasonableness of the measure”.153 In other words, in a democratic society the law is seen as 'necessary' if it is suitable for its purpose and both necessary and proportionate in the narrow meaning.154 The purpose of this principle is to assure that the state interferes to personal freedoms only as much as it is unavoidable.155 150 Eerik-Juhan Truuväli et al. (2002). Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Ministry of Justice, published by Juura, Õigusteabe AS, p.111 151 Martin Triipan (2005). Proportsionaalsuse Põhimõte Põhiõiguste Kaitsel, Master's Thesis, University of Tartu, p. 19 152 Case of Funke v. France (February 25, 1993), A256-A, European Court of Human Rights, Strasbourg, para. 55, available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=funke%20 %7C%20v%20%7C%20france&sessionid=91130985&skin=hudoc-en 153 RKPJKo 06.03.2002 – RT III 2002, 8, 74 154 Eerik-Juhan Truuväli et al. (2002). Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Ministry of Justice, published by Juura, Õigusteabe AS, p. 112 155 Eerik-Juhan Truuväli et al. (2008). Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Second Improved Edition, p.126, University of Tartu, published by Juura, p.126 35 4.5.2.1. Suitability First step, therefore, is to analyse whether the restriction is suitable. ‘Suitable’ means that the measure helps to achieve the intended purpose. Measure that does not promote its purpose is indisputably disproportionate.156 It is not necessary that the measure achieves the purpose with absolute certainty but rather that it is a step towards the right direction.157 Hence, what is the purpose of this arbitration restriction in the Estonian CCP? It is mentioned earlier that certain arbitrations are prohibited in order to protect an economically weak party. For example, in some Swiss Cantons disputes that arise out of employment relations are in the jurisdiction of national courts only. In France and Belgium, on the other hand, settling an arbitration agreement after the termination of employment contract is perfectly acceptable. However, the parties cannot make an arbitration agreement regarding future disagreements. 158 It is assumed that the relationship between an employer and employee is unequal since the worker usually lacks both the bargaining power and knowledge.159 The goal of this measure that renders arbitral awards null and void if the subject of the dispute is the termination of employment contract, is therefore to protect the weaker party, i.e. the employee. For instance, the weaker party might not have the finances to hire a representative and consequently could harm himself/herself in these informal proceedings. In a traditional litigation, if a party has written an incorrect or defective lawsuit then the court will correct these faults.160 Furthermore, the courts and labour dispute committees use fixed rules and laws for every issue161 whereas in arbitration the parties can agree on any rules or laws what they find suitable. This, however, can end up damaging the employee’s case. If arbitration is not used properly then it can cause significant drawbacks. This is one of the reasons why the European 156 RKPJKo 06.03.2002, 3-4-1-1-02, para. 15; RRKÜKo 03.01.2008, 3-3-1-101-06, para. 27 157 Eerik-Juhan Truuväli et al. (2008). Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Second Improved Edition, University of Tartu, published by Juura, p.127 158 Jean-François Poudret, Sébastien Besson (2007). Comparative Law Of International Arbitration, published by Sweet & Maxwell, p. 366 159 Jana Koláčková, Pavel Simon (2011). At the Edge of Justice: Arbitration in Unequal Relationships. The Constitutional Limits of Arbitration, The Relationship Between Constitutional Values, Human Rights and Arbitration, Cczech (& Central European) Yearbook of Arbitration, published by JurisNet LLC, Vol. 1, p. 185 160 Agne Narusk (September 28, 2010). Tööandjad Jätaks Töövaidluskomisjonid Arbitraaži Rolli, Eesti Päevaleht, available at http://www.epl.ee/news/majandus/tooandjad-jataks-toovaidluskomisjonid- arbitraazi-rolli.d?id=51283633 161 Heli Raidve, Mari Rask (2010). Töölepingu Seadus Praktikas, Kolmas Raamat, Published by AS Äripäev, p. 113 36 Court of Justice has ruled that arbitration clauses in the consumer contracts, which are in essence similar to employment contracts, are void.162 If the goal of this measure is not to allow two parties on different positions to arbitrate in case of termination of employment contract, then declaring that the award is invalid does indeed clearly pursue that aim and thus is suitable. 4.5.2.2. Necessity The second step is to look at whether the measure is ‘necessary’ in a strict sense – that is, whether it is possible to achieve the anticipated objective with other more suitable means, which are as effective as the first one.163 In other words, the measure is unnecessary if there is another option, which is better for at least one subject but not worse for anybody.164 An English judge Lord Diplock (1983) has provided an apt metaphorical comparison: “You must not use a steam hammer to crack a nut, if a nutcracker would do.”165 When assessing the necessity requirement it is essential to find the most lenient one from the suitable alternatives. That, however, requires that there are a number of alternatives in the first place. If there are no suitable alternatives to the already selected measure then the application of the principle of necessity is not feasible. In such situation, it can be concluded that the only available policy option meets the criterion of necessity.166 Thus, the question arises, where to look for alternatives? In the context of legislative measures, it has been noticed that the alternatives can be found from the drafting process of the act or from other state’s practice. The identification of alternative measures requires the analysis of the efficiency of the measures and the intensity of the infringement that these cause. Therefore, the inspection of the conformity to the necessity requirement consists of the 162 Jana Koláčková, Pavel Simon (2011). At the Edge of Justice: Arbitration in Unequal Relationships. The Constitutional Limits of Arbitration, The Relationship Between Constitutional Values, Human Rights and Arbitration, Cczech (& Central European) Yearbook of Arbitration, published by JurisNet LLC, Vol. 1, p. 183 163 Eerik-Juhan Truuväli, et al. (2008). Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Second Improved Edition, University of Tartu, published by Juura, p.127 164 Ibid. p. 128 165 [1983] 1 WLR 151, 155, cited from Günther Doeker-Mach (2004). Editor Klaus A. Ziegert, Law and Legal Culture in Comparative Perspective, published by Franz Steiner Verlag Wiesbaden GmbH, Germany, p. 291 166 Martin Triipan (2005). Proportsionaalsuse Põhimõte Põhiõiguste Kaitsel, Master's Thesis, University of Tartu , p. 77 37 analysis of the impact and subsequent comparison of the alternative measures. The alternative measure should also be reasonably available and possible to be implemented.167 However, the softer alternative does not have to be necessarily intrinsically different168 or consist of a different duty, meaning that it can be the same restriction but in another extent169 or just an alternative that is cheaper for the subject.170 Other things to consider as regards the necessity requirement are the burden that the alternatives lay on the third parties and the expenses to the state of applying these.171 Finally, if there are more lenient but less effective measures then it must be explained why such measures are less efficient.172 This paper suggests two alternatives that are not as restrictive to the disputants as the total arbitration ban. Firstly, it is reasonable to leave such arbitrations, where one party is assumingly on a weaker bargaining position, only to the competence of institutional arbitration as opposed to ad hoc proceedings. In order to provide employment disputes, (including the disputes over the termination of employment contract) to be most efficiently arbitrated institutionally, it is necessary to establish a permanent arbitration court specified to employment matters. It should have set rules to specifically provide stronger protection to the employees who are on the weaker bargaining position. Another option that is also less restrictive is to forbid arbitration clauses regarding future disagreements in the employment contracts and to recognise arbitration only if it is agreed upon after the dispute arose. This, too, has an effect of protecting the allegedly weaker party while it leaves a room for choice. Further comparison and reasons why and how those alternatives offer protection, whereas being less restrictive than the ban at issue, are explained below. 4.5.2.2.1. Institutional vs. ad hoc proceedings In order to understand the benefits of institutional arbitration it is necessary to make the difference between these two methods. Ad hoc arbitration is formed on a contractual basis to 167 Ibid. p. 79 168 RKHK 26.11.2002, 3-3-1-64-02, para. 19 169 RKPJK 13.06.2005, 3-4-1-5-05, para. 2 170 Martin Triipan (2005). Proportsionaalsuse Põhimõte Põhiõiguste Kaitsel, Master's Thesis, University of Tartu, p. 80 171 RKPJK 30.04.2004, 3-4-1-3-04, para. 31 172 Martin Triipan (2005). Proportsionaalsuse Põhimõte Põhiõiguste Kaitsel, Master's Thesis, University of Tartu, p. 83 38 settle one specific dispute. This is not a dispute settlement by a permanent institution and every individual dispute arising from the same contract, for example, can be solved via ad hoc method. In this type of process, the parties are the ones who create the rules of procedure, except to the extent that the lex arbitri (law applicable to the arbitration) has been regulated by imperative norms.173 As an example, the Estonian CCP § 732 section 1 sets out the equality of the parties in the arbitration proceedings174 -- a provision that is not allowed to deviate from. If institutional arbitration proceedings consist mostly of the rules of the institution (CCP § 716 section 1) then in ad hoc arbitration the parties have to agree on the rules themselves. A successful ad hoc arbitration requires good cooperation and the possibility of this, to start with. 175 Problems may even occur in setting the arbitration off or in forming the arbitral tribunal, for instance.176 The parties have to agree upon how many arbitrators they want to hear the case and in addition, they have limitless discretion to choose the arbiters. The whole idea of choosing the arbitrator is to have an experienced and unbiased neutral to analyze the facts. However, if the parties have “unguided discretion” to choose such person then there is a danger to leave one side in an unfair situation.177 Difficulties may also arise when the parties have to agree upon the arbitration fees (administrative and arbitrator’s fees, the share/proportion of how much each side pays) or setting the dates and time limits of proceedings. Even more so when the parties have their own everyday tasks they are involved with.178 There is no reason to suppose that when the employer and employee are going to a dispute over the termination of the contract then there is a likelihood of a smooth cooperation between them. Logical conclusions drawn from here are that this sort of freedom to modify the course 173 Ilona Nurmela et al. (2008). Rahvusvaheline Eraõigus, Loengud, published by Juura, p. 291 174 Estonian Code of Civil Procedure, RT I 2005, 26, 197, entered into force 1 January 2006, available in English at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X90041&keel=en&pg=1&ptyyp=RT& tyyp=X&query=tsiviilkohtumenetluse 175 Ilona Nurmela et al. (2008). Rahvusvaheline Eraõigus, Loengud, published by Juura, p. 291 176 International Court of Arbitration, Dispute Resolution Services, available on http://www.iccwbo.org/court/arbitration/id4089/index.html, accessed on May 1, 2012 177 Namrata Shah and Niyati Gandhi (2011). Arbitration: One Size Does Not Fit All: Necessity of Developing Institutional Arbitration in Developing Countries, Journal of International Commercial Law and Technology, vol. 6, issue 4, downloaded from HeinOnline (http://heinonline.org), p. 235 178 Ibid. p. 236 39 and thus the substance of the proceedings may turn out problematic to a party who has no legal knowledge or a representative (bad bargaining position) to aid him/her in choosing suitable rules to achieve satisfactory solution. In other words, this may lead to an unpredictable outcome. However, in ad hoc proceedings there is also a possibility for the parties to agree upon the already existing UNCITRAL Arbitration Rules or opt for the arbitrator’s (or tribunal’s) preferences179 if they have already been able to agree upon the arbiter. On the other hand, in the institutional arbitration, the issue is brought to the competence of a permanent organisation and the rules of that entity are applied to the proceedings. Permanent institutions are, for example the International Arbitration Court operating by the International Chamber of Commerce (deals with business disputes with international character)180, International Arbitration Institute operating at the Stockholm Chamber of Commerce (runs both domestic and international disputes in conformity with its institutional rules or UNCITRAL Arbitration Rules upon agreement by the parties, as well as provides information concerning arbitration)181, London Court of International Arbitration (deals with international commercial disputes)182, American Arbitration Association (areas of expertise are commercial, international, construction, real estate, environmental, governmental, consumer, electronic, as well as labour and employment disputes)183, Deutsche Institution für Schiedsgerichtsbarkeit (deals with both national and international arbitration and other ADR procedures, applies mostly its own DIS-arbitration rules)184 and in Estonia there is the Court 179 Ilona Nurmela et al. (2008). Rahvusvaheline Eraõigus, Loengud, published by Juura, p. 291 180 International Court of Arbitration, Dispute Resolution Services, available on http://www.iccwbo.org/court/arbitration/id4089/index.html, accessed on May 1, 2012 181 Arbitration Institute of the Stockholm Chamber of Commerce, SCC Arbitration, available on http://www.sccinstitute.com/skiljeforfarande-2.aspx, accessed on May 1, 2012 182 The London Court of International Disputes, Arbitration and ADR Worldwide, available on http://www.lcia.org/LCIA/Introduction.aspx, accessed on May 1, 2012 183 American Arbitration Association, Dispute Services Worldwide, available on http://www.adr.org/aaa/faces/aoe/lee/employment/employmentarbitration?_afrLoop=85128945577218 &_afrWindowMode=0&_afrWindowId=99ui8fvnh_198#%40%3F_afrWindowId%3D99ui8fvnh_198 %26_afrLoop%3D85128945577218%26_afrWindowMode%3D0%26_adf.ctrlstate% 3D99ui8fvnh_262, accessed on May 1, 2012 184 DIS, German Institution of Arbitration, available on, http://www.dis-arb.de/en/4/content/disid2, accessed on May 1, 2012 40 of Arbitration operating at the Chamber of Commerce and Industry (settles disputes of private law as well as international commercial and business law nature)185. The common features of all of such institutions are the assistance of the parties in starting the arbitrations, set institutional rules and model clauses, supervision over proceedings and fixed fee schedules. The institution stands between the arbitrator(s) and the disputants to safeguard that the proceedings are neutral, efficient and the rules applied uniformly.186 Arbitration institutions offer lists of trained arbitrators who are experienced in various fields of expertise to choose from. Furthermore, the institution makes sure there are no inappropriate connections between the arbitrator and the parties in order to avoid any favouritism or prejudice. Institutions apply their own already developed rules through their specialised arbiters, which however, bring up the question of flexibility of the proceedings – one of the most valued characteristics of arbitration in general. On the other hand, applying a set of rules that have been time-tested and therefore deal with various contingencies that might not be foreseen when they first occur, make the proceedings probably smoother, faster and the outcome more predictable. Furthermore, arbitral institutions also provide assistance in choosing the appropriate arbitrators or help to solve procedural issues that might come up during the proceedings. Another benefit is the administrative secretariat of the institutions. The secretariat deals with administrative matters such as, among other things, the fixation of various fees or time limits of the proceedings, which in turn promote speedy solution. However, one does not get over the fact that institutional arbitration is more expensive than ad hoc method. Nevertheless, the chances of the parties turning to court due to incorrect decisions caused by incompetent or biased arbitrator or faulty proceedings are significantly higher after ad hoc arbitrations as opposed to institutional proceedings. Turning to a court, though, brings along even greater expenses and delay in finally solving the dispute. In short, ad hoc method is cheaper to the parties but in the end, institutional arbitration provides professionalism that proves to be more cost-effective. Comparing the risks and taking all of 185 Estonian Chamber of Commerce and Industry, Court of Arbitration, available on http://www.koda.ee/index.php?id=11674, accessed on May 1, 2012 186 Namrata Shah and Niyati Gandhi (2011). Arbitration: One Size Does Not Fit All: Necessity of Developing Institutional Arbitration in Developing Countries, Journal of International Commercial Law and Technology, vol. 6, issue 4, downloaded from HeinOnline (http://heinonline.org), p. 234 41 the above mentioned into consideration, it seems reasonable to opt for institutional arbitration.187 4.5.2.2.2. The institution When employees face alleged wrongful termination or any other workplace dispute, they want to resolve the issue quickly and efficiently. Therefore, this paper suggests a permanent employment arbitration institution as an alternative to courts and labour dispute committees. American Arbitration Association (AAA) provides guidance as to how such an institution should operate188 to protect particularly the weaker party. Firstly, this institution should have a specific system of cost sharing between the employer and employee, whereas the employer bears higher administrative and arbiter’s costs in order to provide affordable entrance to the arbitrations for the employee. For example, by the AAA rules, the employer has to pay all of the administrative fees that exceed a specific amount (which is usually a typical filing fee in court) as well as the arbiter’s fee.189 Secondly, the panel of arbitrators to choose from should consist of specialised experts in employment field. The AAA rules propose corporate counsel, employment and labour management lawyers, human resource experts and former judges.190 Such panel should ensure the most professional and fair outcome of the dispute. Furthermore, those professionals should have the duty to assist and advise both sides as to all issues that may come up during arbitrations.191 In addition, the employees should be given an unambiguous notification that they have the right for a representative and that the counsel of the institution may help to assign one. In addition, to attract both employers and employees to choose the institutional arbitration there 187 Ibid. p. 236 188 Resolving Employment Disputes: A Practical Guide, amended and effective July 1, 2006, downloaded at http://www.adr.org/aaa/faces/aoe/lee/lee_search/lee_guide?mode=guide&type=219&division=3&exter nal=true&_afrLoop=242476612479410&_afrWindowMode=0&_afrWindowId=ranamgyo7_34#%40 %3F_afrWindowId%3Dranamgyo7_34%26external%3Dtrue%26_afrLoop%3D242476612479410%2 6type%3D219%26mode%3Dguide%26division%3D3%26_afrWindowMode%3D0%26_adf.ctrlstate% 3D131enau6ms_4, accessed on May 3, 2012, p. 2 189 Ibid. p. 12 190 Ibid. 191 Nadia Milone (2011). Arbitration: the Italian Perspective and the Finality of the Award, Oñati Socio-Legal Series, vol. 1, no. 6, p. 10 42 should be clearly presented fixed time schedules that guarantee a quick solution to the dispute.192 When creating such an institution, one can use the numerous guidelines that other institutions have designed. Such are the AAA Practical Guide for Resolving Employment disputes, for example. For matters that are more particular there are the International Chamber of Commerce’s (ICC) guidelines for Techniques for Controlling Time and Cost in Arbitration,193 etc. Furthermore, same relief and remedies that would be available in court should be offered in this alternative method.194 Finally, of course, the institution should have its own set of rules, in accordance with the applicable laws, and which are stated and available to all in a clear and simple language. Employment arbitration institution should work in symbiosis with the national judiciary. This means that the courts should support ADR and promote arbitrating by sending appropriate disputes to be solved in the discussed arbitration institution. Shah and Gandhi (2011), however, have brought out an interesting tendency to consider that is present today at least in India. They claim that one of the reasons why institutional arbitration grows so slowly is that the courts interfere to its freedom. A successful and beneficial relationship for both sides would be to “encourage but not interfere”. Perhaps it is time to set aside the retired judges who are used to impose the CCP and train new specialised arbitrators195 with fresh and innovative approaches?196 4.5.2.2.3. Future dispute clauses The second alternative, which is more lenient than forbidding arbitration, is to avoid the clauses in employment contract that force the parties to arbitrate in case of future disputes.197 The parties have full autonomy whether or not to enter into an arbitration agreement (or agreeing with an arbitration clause in an employment contract). However, once the parties 192 Martin Triipan (2005). Proportsionaalsuse Põhimõte Põhiõiguste Kaitsel, Master's Thesis, University of Tartu , p. 12 193 William W. Park (2011). Arbitration in Autumn, Journal of International Dispute Settlement, Vol. 2, No. 2, p. 287–315, downloaded from http://jids.oxfordjournals.org on April 18, 2012 194 Martin Triipan (2005). Proportsionaalsuse Põhimõte Põhiõiguste Kaitsel, Master's Thesis, University of Tartu , p. 12 195 Namrata Shah and Niyati Gandhi (2011). Arbitration: One Size Does Not Fit All: Necessity of Developing Institutional Arbitration in Developing Countries, Journal of International Commercial Law and Technology, vol. 6, issue 4, downloaded from HeinOnline (http://heinonline.org), p. 238-239 196 Ibid. p. 239 197 Jean-François Poudret, Sébastien Besson (2007). Comparative Law Of International Arbitration, published by Sweet & Maxwell, p. 366 43 have formed an agreement to arbitrate (including future disputes) then there is no turning back. This is the ‘positive effect’ of an arbitration agreement.198 Article II Section 3 of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 establish: “The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration.” Section 2 of the same article defines the arbitration agreement also as an ‘arbitration clause’ in a contract.199 According to Estonian laws, the legal basis of the courts not to accept the case due to arbitration agreement stems from CCP § 371 section 1, point 8 and to refuse to hear an action from CCP § section 1, point 6 (‘negative effect’ of an arbitration agreement).200 If the issue involves a dispute over the termination of employment contract, then another option to protect the weaker party would be to recognise arbitration only if it is agreed after the dispute arose because when agreeing to the arbitration clause in a contract the parties take a serious decision in depriving the court of its jurisdiction over the matter.201 In the proposed scenario, the arbitration clause that foresaw arbitration in case of future disputes would be invalid. This offers the employee a possibility to choose where to settle the case, depending on the circumstances of that particular time. 4.5.2.3. Proportionality Thirdly, the measure is reasonable if it is ‘proportional’ to the desired outcome.202 Estonian case law has defined that the restrictions cannot infringe the protected laws more than it can be justified with their legitimate purpose.203 On this level, there is no comparison with other alternative measures. The proportionality requirement relates most directly to the relationship 198 Ilona Nurmela et al. (2008). Rahvusvaheline Eraõigus, Loengud, published by Juura, p. 301 199 1958 - Convention on the Recognition and Enforcement of Foreign Arbitral Awards - the "New York" Convention, available at http://www.uncitral.org/pdf/english/texts/arbitration/NYconv/ XXII_1_e.pdf, accessed on May 3, 2012 200 Ilona Nurmela et al. (2008). Rahvusvaheline Eraõigus, Loengud, published by Juura, p. 302 201 Nadia Milone (2011). Arbitration: the Italian Perspective and the Finality of the Award, Oñati Socio-Legal Series, vol. 1, no. 6, p. 3 202 Eerik-Juhan Truuväli et al. (2008). Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Second Improved Edition, University of Tartu, published by Juura, p.127 203 RKPJKo 28.04.2000, 3-4-1-6-2000, para. 13 44 between the mean and the aim. How to decide what is most adequately proportionate? Triipan (2005) examined that the testing of proportionality requires ‘weighing’ in a strict sense.204 As the violation of Paragraphs 19 and 146 of the Constitution are disputable and open for further deliberation, the current paper will weigh the proportionality in a strict sense only as regards Paragraphs 15 and 19. The current Chancellor of Justice Teder (2012) has described in one of his constitutional analysis that in order to weigh the proportionality (moderateness) of a measure one has to take the extent and intensity of the intervention to the fundamental rights and compare it with the importance of the aim.205 He also stated that the general fundamental right to effective judicial protection stemming from § 15 section 1, sentence 1 is extremely important basic right. Fundamental right to effective legal protection implies to an effective operation of judicial system, which is a fundamental value and an integral ingredient of a democratic rule of law state.206 However, prohibition to arbitrate matters relating to the termination of employment contract potentially deprives the parties from an effective judicial protection in cases where the arbitration, as discussed above, is the most effective dispute resolution option. Thus, the purpose of the restriction intensively limits this fundamental right. Furthermore, § 19 of the Constitution provides us with another fundamental value of a democratic state – the right to free self-realisation. Prohibition to arbitrate matters relating to the termination of employment contract deprives the employer and employee vigorously and most straight-forwardly from the right to freely realise themselves and thus to make their own decisions and act according to their own preferences. The objective to protect the weaker party (employee) by depriving him/her from the right to arbitrate disputes concerning the termination of employment contract, whereas there are other less restrictive means to do so, undisputedly violates the fundamental rights set out in Paragraphs 15 and 19 of the Constitution and thereby adversely affects the general legal order. 204 Martin Triipan (2005). Proportsionaalsuse Põhimõte Põhiõiguste Kaitsel, Master's Thesis, University of Tartu, p. 83 205 Indrek Teder, Chancellor of Justice (23.04.2012). Arvamus, Põhiseaduslikkuse järelevalve, Kohtumenetluses KrMS § 385 punktis 26 sätestatud piirangu põhiseaduslikkus, Opinion no. 9- 2/120581/1201975, para. 34 206 Ibid. para. 35 45 Among other great philosophers and academics, Maruste (2004) has stressed in his book of Constitutionality that freedom is a priceless value and this is the principle why people created the state and the laws in the first place. Individual freedom is based, among other things, on the freedom to self-realisation, i.e. how to live one’s life, seek the goals and pursue happiness.207 Those freedoms are guaranteed in the II part of our Constitution and it is of fundamental importance for a democratic state to follow these. Therefore, this paper suggests that protecting the weaker party in these circumstances does not justify violation of fundamental rights and thus, the restriction set out in CCP § 718, section 2, point 2 is not a proportional restriction in a strict nor general way. 5. CONCLUSIONS In broad terms, there are two ways to resolve disputes alternatively (out of courts). There is a determinative, i.e. a three-party system where a neutral (third party) gives an opinion or a resolution, and there is an elective, i.e. a two-way system, which takes place between the parties themselves and consists mainly of negotiations.208 Arbitration belongs to the determinative method since it includes an arbitrator or several of them, who give an award (the solution) which, according to the agreement between the parties, is enforceable in courts or not. Arbitration can also be formal, that is, arranged in a permanent arbitration institution or informal, i.e. on ad hoc basis. The enforceability of an award is still up to the parties to choose, regardless of the procedure they use. The main attractions for the disputants to choose arbitral proceeding instead of conventional court litigation or other available dispute methods are its confidentiality, neutrality, flexibility, cheapness, speediness, and as to commercial disputes, the high possibility of continuing the business relationships. In fact, the main use of arbitrations in the West is in the disputes that arise in international commercial disputes. The UN has acknowledged it and thus created New York Convention to smooth the recognition and enforcement of international arbitral awards in foreign courts as well as UNCITRAL Model Laws and Arbitration Rules for states to take guidance from and create more or less uniform legal frameworks for the better functioning of international arbitrations. 207 Rait Maruste (2004). Konstitutionalism ning Põhiõiguste ja –vabaduste kaitse, published by Juura, p. 83 208 Ilona Nurmela et al. (2008). Rahvusvaheline Eraõigus, Loengud, published by Juura, p. 281 46 However, this paper focused on a narrow matter: national arbitrations between an employer and an employee (although, nowadays it is conventional that they are from different states, thus giving the arbitrations an international edge). Namely, Estonian Code of Civil Procedure forbids arbitration if the subject matter is the termination of an employment contract (§ 718 section 2, point 2). The probable reason for such a restriction (‘probable’ because it was not explained in the draft bill of the CCP) is to protect the weaker party to the dispute who is financially or otherwise on a worse bargaining position. On the other hand, the Constitution provides that all restrictions have to be necessary and in accordance with the Constitution (§ 11). The question thus was, whether this restriction meets both of these conditions? Hypothesis of the paper was that such an arbitration restriction does not meet those conditions and is therefore unconstitutional. At first, the paper examined where Estonia has taken its arbitration laws and what is the situation in some of the relevant states. Estonia, as many other states, has inserted a cocktail of UNCITRAL Model Laws, principles of New York Convention of 1958 and some of the other states’ arbitration laws (i.e. Germany, Netherlands, Italy) into the Code of Civil Procedure under the section of ‘Arbitration’. In different states, there are various limits to arbitrations. States are free to develop their own public policy and consequently choose what is arbitrable or not. As to specifically employment arbitrations, it turned out that different states have distinct approaches. Some prohibit employment arbitration, some try to build safeguards to protect the weaker party and others permit it. From the countries analysed, in Germany and Italy the employment matters are not arbitrable. However, the Netherlands and Sweden (especially) have taken a liberal view and allow employment arbitrations. England, on the other hand, has left the common law (case-by-case basis) to settle the arbitrability issues, thus also going for the rather liberal way. In order to test the hypothesis of the paper, a constitutionality analysis was carried through. First step in such analysis was to determine what individual fundamental rights are restricted and second step was to find out whether the restrictions to the rights (if there were any) are necessary in a democratic state. In order to determine the restriction of fundamental rights, it was first assessed what rights are ‘fundamental rights’ and what is the scope of these. This paper favours Carl Schmitt’s standpoint that the fundamental rights should be looked in accordance with the material 47 principle which, to be simply put, basically means that all the rights that are primary, are fundamental rights, as opposed to the formal view where only the rights described under the heading ‘fundamental rights’ are fundamental rights. Therefore, this paper found relevant to analyse Paragraphs 15, 19, 24 as well as 146 of the Constitution. It turned out that CCP § 718, section 2, point 2 does fall under the scope and restrict § 15 and 19 of the Constitution and that by the current legislative situation the arbitration ban does not fall under the scope of § 24 and 146 of the Constitution because these paragraphs protect only the ‘national court system’. Nevertheless, this paper agrees with the authors of the commentary of the Constitution on the matter that it is necessary to regulate the rules of jurisdiction to ensure as equal workload as possible throughout different courts and also to provide the best access to justice as possible. This, however, suggests that an arbitration in Estonia should be given more competences. As to the second step in the constitutionality analysis, the word ‘necessary’ in § 11 of the Constitution has been given a meaning (by courts’ interpretations) which consists of three principles: the suitability, the necessity in a strict sense and the proportionality in a strict sense, i.e. the moderateness of the measure. In order for a restriction to be ‘necessary’ in the meaning of § 11 it has to meet all three of those criteria. It was easy to conclude that, as the restrictive measure prevents parties to arbitrate and the aim of the restriction is to protect the weaker party from harming him-/herself in arbitrations, then the measure is suitable to its purpose. However, the measure is not necessary in a strict sense, as there are other, more lenient means to achieve the same purpose. This paper provided such protective measures like allowing employment arbitrations, where one party is or may be in a remarkably weaker position, to take place only institutionally (also, a competent employment arbitration institution must be created in the first place) or/and prohibit arbitration clauses in employment contracts regarding future disagreements, leaving the parties with a choice where to solve the dispute. Furthermore, the measure is neither moderate because it strongly restricts at least two of the analysed fundamental rights. After taken all of the abovementioned into consideration (available softer measures, importance to protect fundamental freedoms, the flaws in the purpose of the measure to start with, etc.), it was difficult to conclude that the restriction is proportional. 48 To end with, the arbitration ban restricts our fundamental rights but it is not a necessary restriction. Firstly, there are other ways to achieve the same aim. Secondly, in a democratic and liberal state the people should be left with freedom to choose themselves, among other things, how and where to solve their disputes, on the condition that is not totally on the contrary to public policy of a state. Thirdly, we should watch and learn from the states that liberally and successfully use arbitration as a dispute resolution mechanism and use their arbitration laws while discovering the reasons for their mistakes and success. 49 6. REFERENCES 6.1. Books and Independent Publications [1983] 1 WLR 151, 155, cited from Günther Doeker-Mach, editor Klaus A. Ziegert, Law and Legal Culture in Comparative Perspective, published by Franz Steiner Verlag Wiesbaden GmbH, Germany, 2004 Blair, Tony, A Journey, published by Hutchinson, 2010 Bryce, James, The American Commonwealth, vol. 1, The National Government, the State Government, published by Macmillan, 1920 Ernits, Madis, Põhiõigused, Demokraatia, Õigusriik, Tartu Ülikooli Kirjastus, 2011 Kühn, Dr. Wolfgang and Gantenberg and Ulrike, Heuking, Kühn Lüer Wojtek, Arbitration World – Jurisdictional Comparisons, Second Edition, published by The European Lawyer Ltd, 2006 Lindell, Bengt, Civil Procedure in Sweden, published by Författaren och Iustus Förlag AB, 2004 Maruste, Rait, Konstitutionalism ning Põhiõiguste ja –vabaduste kaitse, published by Juura, 2004 Nurmela, Ilona, et al., Rahvusvaheline Eraõigus, Loengud, published by Juura, 2008 Poudret, Jean-François and Besson, Sébastien, Comparative Law Of International Arbitration, published by Sweet & Maxwell, 2007 Raidve, Heli, and Rask, Mari, Töölepingu Seadus Praktikas, Kolmas Raamat, Published by AS Äripäev, 2010 Redfern, Alan, et al., Law and Practice of International Commercial Arbitration, Fourth Edition, published by Sweet & Maxwell Ltd, 2004 Samuel, Adam, Jurisdictional Problems in International Commercial Arbitration: A Study of Belgian Dutch, English, French, Swedish, Swiss, U.S. and West German Law, published by Schulthess Polygraphischer Verlag, 1989 50 Sheppard, Audley, et al., Arbitration World – Jurisdictional Comparisons, Second Edition, published by The European Lawyer Ltd, 2006 Trittmann, Rolf and Hanefeld, Inka, Arbitration in Germany, published by Kluwer Law International, 2007 Truuväli, Eerik-Juhan, et al, Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Ministry of Justice, published by Juura, Õigusteabe AS, 2002 Truuväli, Eerik-Juhan, et al, Eesti Vabariigi Põhiseadus: Kommenteeritud Väljaanne, Second Improved Edition, University of Tartu, published by Juura, 2008 Wagner, Prof. Dr. Gerhard, et al., Practitioner’s Handbook on International Arbitration, edited by Frank-Bernd Weigand, published by C.H.Beck oHG, 2002 6.2. Articles and contributions to edited works Alexy, Robert ,“Põhiõigused Eesti Põhiseaduses”, Juridica, Special Edition, 2001, p. 5-13 Annus, Robert, and Aaviksoo, Berit, Riigi, kohalike omavalitsuste, perekonna ja muude isikute kohustused põhiseaduslike õiguste tagamisel sotsiaalhoolekande valdkonnas, Juridica,Special Edition, 2002, p. 6-61 Broadbent, Nigel, “Alternative Dispute Resolution”, Legal Information Management, Cambridge Journals, no. 9, 2009, published by The British and Irish Association of Law Librarians, downloaded from http://journals.cambridge.org on March 6, 2012, p. 195–198 Ernits, Madis, “Põhiõiguste Mõiste ja Tähtsus Õigussüsteemis“, Juridica, No. 9, 1996, p. 463- 471 Hardin, Clifford M. PhD, “The effects of Over-Regulation”, Food, Drug, Cosmetic Law Journal, vol. 34, issue 50, 1979, downloaded from HeinOnline (http://heinonline.org) on May 10, 2012, p. 50-57 Jana Koláčková, Jana and Simon, Pavel, “At the Edge of Justice: Arbitration in Unequal Relationships. The Constitutional Limits of Arbitration, The Relationship Between Constitutional Values, Human Rights and Arbitration”, Czech (& Central European) Yearbook of Arbitration, published by JurisNet LLC, Volume 1, 2011, p. 185 51 Jõks, Allar “Õiguskantsler Kaitseb Õigussüsteemi Legitiimsust”, Riigikogu Toimetised, No. 24, 2011, available also at http://www.riigikogu.ee/rito/index.php?id=11857 Kõve, Villu, “Aegumise Peatumine Hagi Esitamise või Muu Menetlustoimingu Tegemisega Kohtus või Kohtuväliselt,” Juridica, no.7, 2010 p. 523-532 Maruste, Rait, “Põhiseadus ja Justiitsorganite Süsteem”, Juridica, 1998, no.7, p. 326-327 Milone, Nadia “Arbitration: the Italian Perspective and the Finality of the Award“, Oñati Socio-Legal Series, vol. 1, no. 6, 2011, p. 1-12 Mose, Darek and Kleiner, Brian H. “The Emergence of Alternative Dispute Resolution in Business Today”, Equal Opportunities International, Volume 18 Number 5/6 1999, p. 54-61 Neale, Bennett A. and Kleiner, Brian H. “How to Conduct Arbitration Effectively”, Managerial Law, Volume 43 Number 1/2 2001, p. 112-115 Park, William W. “Arbitration in Autumn”, Journal of International Dispute Settlement, Vol. 2, No. 2, 2011, p. 287–315, downloaded from http://jids.oxfordjournals.org/ at eIFL - Estonia on April 18, 2012 Shah Namrata and Gandhi, Niyati, “Arbitration: One Size Does Not Fit All: Necessity of Developing Institutional Arbitration in Developing Countries”, Journal of International Commercial Law and Technology, vol. 6, issue 4, 2011, downloaded from HeinOnline (http://heinonline.org) on March 14, 2012, p. 235 Singh, Ramsumair, “Dispute resolution in Britain: Contemporary Trends, International Journal of Manpower”, Published by MCB University Press, Vol. 16 No. 9, 1995, p. 42-52. Torga, Maarja ,“Vahekohtuklausli Kehtetuse Alused Rahvusvahelistes Kaubanduslepingutes,” Juridica, no. 6, 2007, p.386-394 6.3. Other sources Arbitration in the Baltics, a Handbook, published by LAWIN 2008, p. 9 Code of Civil Procedure, Draft Procedures, The Parliament of Estonia, available at http://www.riigikogu.ee/?page=eelnou2&op=ems&eid=208&assembly=10&u=20120408055 504 52 Draft of the Estonian Code of Civil Proceeding, 208 SE I, Explanatory Note (In Estonian), available at http://www.riigikogu.ee/?op=emsplain&content_type=text/html&page=mgetdoc&itemid=033 370012 Final voting of the Code of Civil Procedure, The Parliament of Estonia, April 20, 2005, available at http://www.riigikogu.ee/?op=ems&content_type=text/html&page=haaletus&hid=67252&new =0&u=20120408140311 Läänemets, Kaia, “Töövaidlus: Kas Pöörduda Kohtusse või Töövaidluskomisjoni?” Äripäev, 19 February 2010, available also at http://raamatupidaja.ee/article/2010/02/19/Toovaidlus_kas_poorduda_kohtusse_voi_toovaidlu skomisjoni Narusk, Agne, “Tööandjad Jätaks Töövaidluskomisjonid Arbitraaži Rolli”, Eesti Päevaleht, September 28, 2010, available also at http://www.epl.ee/news/majandus/tooandjad-jatakstoovaidlus- komisjonid-arbitraazi-rolli.d?id=51283633 Sanders, Pieter, The Making of the Convention, “Enforcing Arbitration Awards under the New York Convention: Experience and Prospects”, papers presented at "New York Convention Day", United Nations Publication, June 10, 1998, p. 3, available also at Teder, Indrek, Chancellor of Justice, Arvamus põhiseaduslikkuse järelevalve kohtumenetluses KrMS § 385 punktis 26 sätestatud piirangu põhiseaduslikkuse kohta, Opinion no. 9- 2/120581/1201975, 23.04.2012 Triipan, Martin, Proportsionaalsuse Põhimõte Põhiõiguste Kaitsel, Master's Thesis, University of Tartu, 2005, available also at http://dspace.utlib.ee/dspace/bitstream/handle/10062/631/triipan.pdf?sequence=5 6.4. Internet sources American Arbitration Association, Dispute Services Worldwide, available at http://www.adr.org/aaa/faces/aoe/lee/employment/employmentarbitration?_afrLoop=8512894 5577218&_afrWindowMode=0&_afrWindowId=99ui8fvnh_198#%40%3F_afrWindowId%3 53 D99ui8fvnh_198%26_afrLoop%3D85128945577218%26_afrWindowMode%3D0%26_adf.ct rl-state%3D99ui8fvnh_262, accessed on May 1, 2012 Arbitration Institute of the Stockholm Chamber of Commerce, SCC Arbitration, available at http://www.sccinstitute.com/skiljeforfarande-2.aspx, accessed on May 1, 2012 Aristotle, The Nicomachean Ethics, Book III, Chapter 2, 350 BC, translated by W. D. Ross, available also at http://www.constitution.org/ari/ethic_00.htm Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, Status, available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html, accessed on May 3, 2012 DIS, German Institution of Arbitration, available at http://www.dis-arb.de/en/4/content/disid2, accessed on May 1, 2012 Employment Contracts Act (Consolidated text), RT I 2009, 5, 35, entered into force 1 July 2009, English version available at, http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=XXXX060&keel=en&pg=1& ptyyp=RT&tyyp=X&query=t%F6%F6lepingu+seadus, accessed on March 25, 2012 Estonian Chamber of Commerce and Industry, Court of Arbitration, available at http://www.koda.ee/index.php?id=11674, accessed on May 1, 2012 Estonian Code of Civil Procedure, RT I 2005, 26, 197, entered into force 1 January 2006, English version available at, http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X90041&keel=en&pg=1&pty yp=RT&tyyp=X&query=tsiviilkohtumenetluse, accessed on March 26, 2012 International Court of Arbitration, Dispute Resolution Services, available at http://www.iccwbo.org/court/arbitration/id4089/index.html, accessed on May 1, 2012 Mill, John Stuart, Essay on Liberty, 1859, Harvard Classics, Vol. 25, published by Longman, Roberts & Green, available at http://www.bartleby.com/130/, accessed on May 10, 2012 Resolving Employment Disputes: A Practical Guide, amended and effective July 1, 2006, downloaded at 54 http://www.adr.org/aaa/faces/aoe/lee/lee_search/lee_guide?mode=guide&type=219&division =3&external=true&_afrLoop=242476612479410&_afrWindowMode=0&_afrWindowId=ran amgyo7_34#%40%3F_afrWindowId%3Dranamgyo7_34%26external%3Dtrue%26_afrLoop %3D242476612479410%26type%3D219%26mode%3Dguide%26division%3D3%26_afrWin dowMode%3D0%26_adf.ctrl-state%3D131enau6ms_4, accessed on May 3, 2012 The Constitution of the Republic of Estonia, RTI, 28.06.2007, 43, 311, entered into force 3 July 1992, English version available at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X0000K1&keel=en&pg=1&pt yyp=RT&tyyp=X&query=p%F5hiseadus, accessed on March 26, 2012 The London Court of International Disputes, Arbitration and ADR Worldwide, available at http://www.lcia.org/LCIA/Introduction.aspx, accessed on May 1, 2012 The Rules of the Court of Arbitration of the Estonian Chamber of Commerce and Industry, entered into force on January 1, 2008, available at http://www.koda.ee/public/ECCI_Court_of_Arbitration_Rules.pdf, accessed on May 1, 2012 The UNCITRAL Guide: Basic facts about the United Nations Commission on International Trade Law, United Nations Publication, 2007, available at http://www.uncitral.org/pdf/english/texts/general/06-50941_Ebook.pdf, accessed on May 4, 2012 UNCITRAL Arbitration Rules (as revised in 2010), available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2010Arbitration_rules.html, accessed on May 3, 2010 UNCITRAL Arbitration Rules of 1976, available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1976Arbitration_rules.html, accessed on May 3, 2012 6.5. Table of cases Funke v. France, A256-A, European Court of Human Rights, Strasbourg, February 25, 1993, available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=fu nke%20%7C%20v%20%7C%20france&sessionid=91130985&skin=hudoc-en 55 RKHK 26.11.2002, 3-3-1-64-02 RKPJK 30.04.2004, 3-4-1-3-04 RKPJK 13.06.2005, 3-4-1-5-05 RKPJKo 12.01.1994, III-4/A – 1/94 RKPJKo 11.01.1995 – RT I 1995, 9, 112 RKPJKo 28.04.2000, 3-4-1-6-2000 RKPJKo 03.05.2001, 3-4-1-6-01 – RT III 2001, 15, 154 RKPJKo 06.03.2002, 3-4-1-1-02 RKPJKo 06.03.2002 – RT III 2002, 8, 74 RKPKJKo 11.06.1997 – RT I 1997, 50, 821 RKPKJKo 06.10.1997 – RT I 1997, 74, 1267 RKPKJKo 27.05.1998 – RT I 1998, 49, 752 RKÜKo 03.12.2007, 3-3-1-41-06 RRKÜKo 03.01.2008, 3-3-1-101-06 6.6. Table of legislative acts Code of Civil Procedure, entered into force on January 1, 2006, RT I 2005, 26, 197, available also at https://www.riigiteataja.ee/akt/128122011044 Code of Criminal Procedure, entered into force on July 1, 2004, RT I 2003, 27, 166, available also at https://www.riigiteataja.ee/akt/117042012006 Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 - the "New York" Convention, available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention.html, accessed on May 3, 2012 56 Dutch Code of Civil Procedure, Book Four: Arbitration Act, Art. 1020, English version available at http://www.jus.uio.no/lm/netherlands.arbitration.act.1986/1020.html German Code of Civil Procedure, Tenth Book, published by Trans-Lex.org Law Research, English version available at http://www.trans-lex.org/600550 Individual Labour Dispute Act, § 4 (11), entered into force 01.01.2011, RT I 2010, 22, 108, available also at https://www.riigiteataja.ee/akt/130062011005 Italian Code of Civil Procedure, Title VIII of Book IV – Arbitration, published by lexmercatoria.org, available at http://www.jus.uio.no/lm/italy.arbitration/landscape.pdf The Constitution of the Republic of Estonia, entered into force 03.07.1992, RT 1992, 26, 349, available also at https://www.riigiteataja.ee/akt/127042011002 The Swedish Arbitration Act, Section 1, SFS 1999:116, Arbitration Institute of Stockholm Arbitration Institute website, available at http://www.chamber.se/?id=23746 UNCITRAL Model Law on International Commercial Arbitration of 1985, with amendments as adopted in 2006, available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html, accessed on May 4, 2012
International Arbitration 